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Court of Appeals No. 272898. | [
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Court of Appeals No. 286381. | [
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Court of Appeals No. 287412. | [
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] |
Court of Appeals No. 288963. | [
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Court of Appeals No. 285810.
Hathaway, J., did not participate. | [
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] |
Court of Appeals No. 287727. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 284731. | [
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] |
Court of Appeals No. 278837. | [
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] |
Court of Appeals No. 286218.
Hathaway, J., did not participate. | [
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Court of Appeals No. 280027. | [
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Court of Appeals No. 289512. | [
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Court of Appeals No. 287596. | [
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] |
The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 284418. | [
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] |
Court of Appeals No. 277682. | [
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] |
Court of Appeals No. 273129. | [
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] |
Court of Appeals No. 288803. | [
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Court of Appeals No. 280814. | [
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] |
Court of Appeals No. 284666. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 284614. | [
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Court of Appeals No. 275943. | [
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] |
The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 283917. | [
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YOUNG, J.
This case involves the applicability of the Freedom of Information Act (FOIA) privacy and law-enforcement-purposes exemptions to a police incident report. Following a notorious assault of several Michigan State University students in a dormitory room, plaintiff State News made a FOIA request that defendant Michigan State University disclose the report. Michigan State resisted this request, claiming that the FOIA privacy and law-enforcement-purposes exemptions permitted it to withhold the requested report. Litigation between the parties ensued, and the Court of Appeals eventually held that the circuit court had erred in determining that the entire report could be withheld. In its decision remanding the case to the circuit court, the Court of Appeals observed that the “subsequent availability of information as a result of later court proceedings in the criminal justice system may well strengthen or weaken the arguments of the parties to a FOIA dispute regarding the applicability” of the exemp tions at issue and instructed the circuit court to consider the effect of that availability.
We conclude that this instruction from the Court of Appeals was erroneous and hold that unless the exemption asserted provides otherwise, the applicability of a FOIA exemption is measured when the public body asserts the exemption. The passage of time and the course of events after the assertion of a FOIA exception do not affect whether a public record was initially exempt from disclosure.
Accordingly, we reverse the judgment of the Court of Appeals in part and remand this case to the circuit court, in accordance with the remainder of the Court of Appeals judgment that ordered an in camera inspection of the police incident report for the circuit court to decide what information is exempt from disclosure and to make particularized findings to support its conclusion, as well as to separate, if possible, the exempt material from the nonexempt material.
FACTS AND PROCEDURAL HISTORY
On March 2, 2006, State News submitted a FOIA request to Michigan State seeking disclosure of a police incident report that detailed an incident at Hubbard Hall, a student dormitory at Michigan State, on February 23, 2006. Three male assailants, one of whom was a Michigan State student, allegedly entered a dorm room, threatened three victims with a gun, and poured gasoline on one of the individuals while threatening to light him on fire. The three men were later arraigned on charges of home invasion, felonious assault, and possessing a firearm during the commission of a felony. In a story published several days later, the State News reported the names of the three men.
Michigan State denied the FOIA request, citing the privacy exemption and subsections l(b)(i) to (Hi) of the law-enforcement-purposes exemption. State News appealed administratively, and in a letter replying to State News, Michigan State University President Lou Anna K. Simon affirmed the original determination to deny the FOIA request. State News then filed a complaint in the circuit court, accompanied by a motion to show cause why Michigan State should not disclose the report and a motion for summary disposition. The circuit court ordered a show cause hearing. Michigan State, in its response, attached affidavits from its FOIA officer, the Michigan State University Chief of Police, and the Ingham County Chief Assistant Prosecuting Attorney to support its decision to withhold the report. The affidavits stated that the police incident report contained “incident report persons sheets,” “narrative incident reports,” physical evidence documents, inmate profiles and booking photographs, and other information about the suspects.
At the show cause hearing, the circuit court heard arguments from the parties and ruled from the bench in favor of Michigan State, concluding that the report in its entirety was exempt under both the privacy exemption and subsections 1(b) (i) to (Hi) of the law-enforcement-purposes exemption. However, the court did not inspect the police incident report in camera before it reached its decision. With respect to the privacy exemption, the court found that some of the information sought, such as names, addresses, birthdates, driver’s license numbers, and criminal histories of the accused, victims, and witnesses, was information “of a personal nature” and that its disclosure would not further the core purpose of FOIA of shedding light on the workings of government. Thus, according to the circuit court, disclosure of this information would constitute a clearly unwarranted invasion of privacy.
Turning to the law-enforcement-purposes exemption, the court concluded that the analysis for the privacy exemption also applied to subsection 1(b) (Hi) of that exemption, which protects against disclosure of investigating records that would constitute an unwarranted invasion of personal privacy. With respect to subsections 1(b) (i) and (ii) of the law-enforcement-purposes exemption, the court found that Michigan State had made a particularized showing that disclosure of the report would interfere with law-enforcement proceedings or deprive a person of a fair trial. The court relied on affidavits from the police chief and the chief assistant prosecuting attorney stating that the poten tial existed for retaliation against witnesses and victims, tainting of the jury pool, and tainting of witnesses’ testimony if the report was disclosed to the public. The circuit court dismissed State News’s complaint with prejudice.
State News appealed, and the Court of Appeals, in a published opinion per curiam, remanded this case to the circuit court for further proceedings. The panel identified several errors committed by the circuit court. It first addressed the circuit court’s handling of the law-enforcement-purposes exemption. Citing Evening News Ass’n v City of Troy the Court of Appeals held that with respect to subsections l(b)(i) and (ii), the circuit court had failed to offer particularized reasons to justify its conclusion that the entire police incident report was exempt from disclosure. With respect to subsection 1(b)(iii), the panel, relying on United States Dep’t of Justice v Reporters Comm for Freedom of the Press, suggested the possibility that the names or addresses of the suspects or other information identifying them in the police incident report might be exemptible.
The panel then addressed the circuit court’s handling of the privacy exemption. It followed the two-part test for the privacy exemption developed by this Court in Bradley v Saranac Community Schools Bd of Ed, and Mager v Dep’t of State Police Concerning the first prong of the test, the panel stated that, “as a hypotheti cal matter,” the names and addresses of the victims, witnesses, and suspects and other information identifying them could constitute information “of a personal nature,” but that the passage of time and the course of events might have rendered some, if not all, of this information matters of public knowledge and therefore not of a personal nature. Concerning the second prong, which requires that the disclosure would create a clearly unwarranted invasion of an individual’s privacy, the panel tentatively concluded that Michigan State had failed to demonstrate that the release of the police incident report would shed no light on its conduct as a public body. However, it declined to reach a firm conclusion with respect to the second prong because the panel could not review the report, which was not part of the circuit court record.
Next, the Court of Appeals, again citing Evening News, held that on remand the circuit court should review the requested information in camera. In addition, the panel held that the exempt and nonexempt material should be separated to the extent practicable, with the nonexempt material made available to State News.
Michigan State sought leave to appeal in this Court. We granted leave to appeal on a limited basis and denied leave in all other respects.
STANDARD OF REVIEW
This Court reviews de novo as a question of law issues of statutory interpretation. We give effect to the Legislature’s intent as expressed in the language of the statute by interpreting the words, phrases, and clauses according to their plain meaning.
THE EFFECT OF THE PASSAGE OF TIME
We granted leave to appeal,
limited to the issue whether the Court of Appeals erred in instructing [the circuit court], on remand, regarding the “personal nature” of public records covered by the Freedom of Information Act privacy exemption[ ] or the law enforcement purposes privacy exemption,[ ] including whether the “personal nature” of such records may be affected by the contemporaneous or later public status of some or all of the information.[ ]
We are not determining in this appeal whether the police incident report ultimately is exempt from disclosure.
The Court of Appeals made the following observation about the effect of the passage of time on the FOIA exemptions in this case:
We note at the outset that the passage of time may have affected aspects of this appeal and that, while we can make some observations based on the record, there are other aspects about which we can only speculate. We know from the record that before it made its FOIA request to MSU, State News had already identified the three men arrested at Hubbard Hall. Thus, at least the names of these men and some identifying information about them were in the public domain. We know from the record that when President Simon issued her April 6, 2006, denial, these men had already been arraigned on charges of home invasion, felonious assault, and felony-firearm. Further information about these men might therefore have been in the public domain at that time, but the record before us does not disclose what that information might be. We also know from the record that when the trial court issued its June 8, 2006, decision, one of these men had been scheduled for trial and the preliminary examinations for the remaining two were scheduled for the next day. From the record before us, however, we do not know whether trials have now been held or, if so, what the results of those trials may have been and what information might have entered into the public domain during the course of later proceedings.
Rather obviously, public bodies and trial courts can only make decisions on FOIA matters on the basis of the information that is before them at the time, and it is not the function of appellate courts to second-guess those decisions on the basis of information that later becomes available. Here, because we do not have the any information about what may have transpired after the trial court’s June 8 decision, we could not engage in such second-guessing in any event. We do observe, however, that the subsequent availability of information as a result of later court proceedings in the criminal justice system may well strengthen or weaken the arguments of the parties to a FOIA dispute regarding the applicability of the privacy exemption and the law-enforcement-purpose exemption.
As a practical matter, we suspect that this subsequent information, of which the trial court can take judicial notice on remand under appropriate procedures, will weaken MSU’s position and strengthen State News’s position. But, ironically, the newsworthiness of the information contained in the police incident report may also have decreased over time. However, FOIA is not concerned with newsworthiness. Rather, it is concerned with requiring the disclosure of nonexempt public records so as to ensure accountability.[ ]
The panel reiterated this observation when it discussed the first prong of the privacy exemption and noted that “the passage of time and the course of events may have rendered some, if not all, of this information matters of public knowledge and therefore not of a personal nature.”
We agree with the Court of Appeals statement that “public bodies and trial courts can only make decisions on FOIA matters on the basis of the information that is before them at the time, and it is not the function of appellate courts to second-guess those decisions on the basis of information that later becomes available.” We disagree, however, with the panel’s further, contrary musings that the passage of time and subsequent events could negate the applicability of a FOIA exemption. Rather, we hold that unless the FOIA exemption provides otherwise, the appropriate time to measure whether a public record is exempt under a particular FOIA exemption is the time when the public body asserts the exemption.
The denial of a FOIA request occurs at a definite point in time. The public body relies on the information available to it at that time to make a legal judgment whether the requested public record is fully or partially exempt from disclosure. The determinative legal question for a judicial body reviewing the denial is whether the public body erred because the FOIA exemption applied when it denied the request. Subsequent developments are irrelevant to that FOIA inquiry. There is no indication from the text of either the privacy or the law-enforcement-purposes exemption or from another, independent FOIA provision that the public body’s assertion of a FOIA exemption may be reexamined by the circuit court or an appellate court while taking into consideration information not available to the public body when it denied the request.
Further, the procedures in FOIA for submitting a FOIA request, reviewing the FOIA request, and appealing that review suggest that the timing of the public body’s response to the FOIA request is crucial to deciding whether the requested record is exempt. FOIA requires the public body to respond to a FOIA request within 5 business days, with a possible extension of not more than 10 business days. There is no language in that provision or elsewhere in FOIA that requires a public body to continue to monitor FOIA requests once they have been denied. FOIA does not prevent a party that unsuccessfully requested a public record from submitting another FOIA request for that public record if it believes that, because of changed circumstances, the record can no longer be withheld from disclosure.
CONCLUSION
We reverse the judgment of the Court of Appeals in part and hold that events that occur after a public body’s denial of a FOIA request are not relevant to the judicial review of the decision. Thus, in this case, the passage of time and course of events have no bearing on whether Michigan State properly denied State News’s FOIA request under the privacy exemption and the law-enforcement-purpose exemption. Accordingly, we remand this case to the circuit court for further proceedings consistent with this decision.
Taylor, C.J. and Cavanagh, Kelly, Corrigan and MARKMAN, JJ., concurred with YOUNG, J.
State News v Michigan State Univ, 274 Mich App 558, 566-567, 583; 735 NW2d 649 (2007).
MCL 15.243(l)(a).
MCL 15.243(l)(b)(i), (ii), and {Hi).
State News initially filed suit in Oakland County, but the Oakland Circuit Court granted Michigan State’s motion to transfer venue to Ingham County. State News refiled its complaint in the Ingham Circuit Court.
According to the affidavits, these documents contained “personally identifiable information about the victims, witnesses, responding police officers, and defendants (such as name, address, sex, race, weight, height, date of birth, driver’s license number, student number, criminal history, and other personal and sensitive information).”
According to the affidavits, these reports consisted of “statements from the responding officers, witnesses, victims, defendants, and a third party.”
According to the affidavits, these documents consisted of “photo graphs of evidence, property sheets, property inventory form[s], crime scene photographs, laboratory evidence documents, and advice of rights forms.”
State News, 274 Mich App at 582-583.
417 Mich 481; 339 NW2d 421 (1983).
489 US 749; 109 S Ct 1468; 103 L Ed 2d 774 (1989).
455 Mich 285; 565 NW2d 650 (1997). This Court recently slightly modified the Bradley test. See Michigan Federation of Teachers v Univ of Michigan, 481 Mich 657; 753 NW2d 28 (2008).
460 Mich 134; 595 NW2d 142 (1999).
State News, 274 Mich App at 578.
These aspects of the Court of Appeals judgment were not included in this Court’s limited order granting leave to appeal.
480 Mich 902 (2007).
Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 471-472; 719 NW2d 19 (2006).
Bukowski v Detroit, 478 Mich 268, 273-274; 732 NW2d 75 (2007).
The privacy exemption, MCL 15.243(l)(a), provides:
(1) A public body may exempt from disclosure as a public record under this act any of the following:
(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.
The law-enforcement-purposes exemption, MCL 15.243(l)(b), provides, in pertinent part:
(1) A public body may exempt from disclosure as a public record under this act any of the following:
(b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following:
(i) Interfere with law enforcement proceedings.
(ii) Deprive a person of the right to a fair trial or impartial administrative adjudication.
(Hi) Constitute an unwarranted invasion of personal privacy.
480 Mich 902 (2007) (citations omitted).
Recently, in Michigan Federation of Teachers, 481 Mich at 675-676, we modified the definition of “information of a personal nature” in the privacy exemption to include “information of an embarrassing, intimate, private, or confidential nature.” Thus, Bradley as modified by Michigan Federation of Teachers now governs the privacy exemption. On remand, then, the modified definition set forth in Michigan Federation of Teachers must guide the circuit court’s application of the privacy exemption.
In Michigan Federation of Teachers, we also addressed whether information can be “of a personal nature” and whether an individual retains a privacy interest in that information if it might be found elsewhere in the public domain at the time of the FOIA request. We held that “[t]he disclosure of information of a personal nature into the public sphere in certain instances does not automatically remove the protection of the privacy exemption and subject the information to disclosure in every other circumstance.” Id. at 680. Michigan Federation of Teachers quoted with approval the United States Supreme Court’s observation that “ ‘[a]n individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.’ ” Id. at 679, quoting United States Dep’t of Defense v Fed Labor Relations Auth, 510 US 487, 500; 114 S Ct 1006; 127 L Ed 2d 325 (1994). As with the modified Bradley definition, these holdings must guide the circuit court on remand when it applies the privacy exemption and the law-enforcement-purposes exemption to the facts of this case.
State News, 274 Mich App at 565-567 (citation omitted).
Id. at 578.
Certain FOIA exemptions contain explicit time limitations on their applicability. See, e.g., MCL 15.243(l)(e), (i), (j), (p), and (x). However, we note that the applicability of even those FOIA exemptions would be measured at the time the public body invoked the exemption to deny the FOIA request.
Of course, release of the requested public record by the public body would render the FOIA appeal moot because there would no longer be a controversy requiring judicial resolution. See Federated Publications, Inc v City of Lansing, 467 Mich 98; 649 NW2d 383 (2002). Mootness is not at issue in this case, however.
MCL 15.235(2)(d).
MCL 15.233(1) grants a person the right to subscribe to future issuances of public records that are created, issued, or disseminated on a regular basis. This provision, however, is inapposite in this case for the obvious reason that a police incident report is a single public record that would not be created, issued, or disseminated on a regular basis. Moreover, that provision does not necessarily entitle the requesting party to the full contents of those public records.
On remand, the parties and the circuit court should take cognizance of the special protection afforded to crime victims by our constitution and legislative enactments, particularly those provisions that exempt certain information about victims from disclosure under FOIA. See Const 1963, art 1, § 24 and 1985 PA 87, which is the Crime Victim’s Rights Act, MCL 780.751 et seq. For instance, § 8 of the Crime Victim’s Rights Act provides that certain information about the victim is exempt from disclosure under FOIA, such as the home address, home telephone number, work address, and work telephone number, unless the address is used to identify the place of the crime, and any picture, photograph, drawing, or other visual representation of the victim, including any film, videotape, or digitally stored image. MCL 780.758 (3)(a) and Ob). See also MCL 780.769(2), 780.769a(3), 780.771(4), 780.788(2), 780.798(5), 780.818(2), and 780.830. As the circuit court reconsiders on remand whether the police incident report is exempt from disclosure in whole or in part, and whether any exempt material is separable from the nonexempt material, it must respect the Legislature’s determination that certain information about crime victims is exempt from disclosure. | [
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CORRIGAN, J.
At issue in this case is whether defendant is entitled to a new trial on the basis of his argument that two unavailable witnesses’ written recantations were improperly excluded from defendant’s second trial. A transcript of the witnesses’ testimony from the first trial was admitted as evidence at the second trial and defendant sought to admit the recanting statements for purposes of impeachment. The Van Burén Circuit Court denied defendant’s motion to introduce the statements. The court also denied defendant’s motion for a new trial, in which defendant argued that the statements were improperly excluded. The Court of Appeals reversed and ordered a new trial. We conclude that defendant is not entitled to a new trial because the trial court acted within its discretion when it excluded the recantations and denied defendant’s motion for a new trial. Further, any error that may have occurred was harmless. Accordingly, we reverse the Court of Appeals judgment and remand to that court for consideration of any remaining issues advanced by defendant in his claim of appeal.
FACTS AND PROCEEDINGS IN THE CIRCUIT COURT
In 2001 and 2002, juries twice convicted defendant, Junior Fred Blackston, for the first-degree murder of Charles Miller. In 1988, Miller was executed and buried in a field near defendant’s home in Allegan County. Miller’s disappearance remained unsolved until codefendant Charles Lamp ultimately led the police to Miller’s body in 2000. At defendant’s first trial, code fendants Lamp and Guy Simpson testified against him. The prosecutor permitted Lamp to plead guilty of manslaughter, while Simpson received complete immunity for his testimony. Both codefendants testified that defendant, Lamp, and Simpson took Miller to the field where defendant shot Miller and cut off his ear to show it to a local drug dealer, Benny Williams, as proof that Miller was dead. Lamp testified that he helped defendant plan and execute the murder after defendant learned that Miller planned to rob Williams.
Defendant testified at the first trial but not at the second. Defendant agrees that the victim was at defendant’s house on the night he was murdered. Through alibi witnesses, defendant asserted that he did not leave the house with Miller, Lamp, and Simpson. The defense contended that defendant remained home with his lVz-year-old daughter. The child’s mother — defendant’s girlfriend at the time, Darlene (Rhodes) Zantello — was pregnant. All parties agreed that she left her lV2-yearold daughter with defendant when Zantello went to the hospital that night because she was experiencing pain. Lamp and Simpson testified that defendant brought his daughter along and left her sleeping in the back seat of the car during the crime.
Zantello testified at the first trial that, when she returned home from the hospital that night, defendant was not present but returned later with Simpson. Zantello overheard Simpson say “that was like a movie with all that blood.” She also recalled hearing the men mention an ear being cut off, a pre-dug hole or grave, and that defendant “almost blew his whole head off.”
Rebecca (Krause) Mock, Miller’s girlfriend at the time of his death, and Mock’s sister, ■ Roxann (Krause) Barr, also testified that, in 1990, defendant had admitted his involvement in the murder to them. They said that defendant cried, confessed his participation, and stated that he felt badly about their acts. The police confirmed that shortly after defendant confessed Mock and Barr reported defendant’s confession to them.
Defendant’s three sisters each confirmed his alibi. Each sister attested that she had visited defendant’s house — and had found him home with his daughter — on the night of September 12, 1988, when Miller disappeared. Defendant also produced Williams, who claimed to have known nothing about Miller’s death. The investigators acknowledged that they had been unable to link Williams to Miller’s murder.
The second jury trial took place in 2002. In the interim, both Simpson and Zantello proffered written statements recanting their former testimony. Simpson claimed that only he and Lamp participated in the murder and that he had implicated defendant for personal advantage under pressure from the prosecutor. Zantello claimed that an abusive boyfriend had pressured her; he sought to gain favor with the prosecutor in a separate case against him. In her recanting statement, she denied having overheard Simpson and defendant talking about the murder and claimed that defendant was home when she returned from the hospital.
Neither Simpson nor Zantello testified at the retrial. Simpson refused to testify. Zantello stated that she could not remember the night of the crime, her previous statements to the police, her previous testimony, or the contents of her recanting affidavit, which she had completed only three months earlier. The trial court declared both witnesses unavailable. It admitted their testimony from the first trial under MRE 804(b)(1), which establishes a hearsay exception for former testimony of an unavailable witness. Without citing any authority, defense counsel moved to admit the written recantations to impeach the unavailable witnesses. The court ruled the recantations inadmissible under MRE 613, which addresses prior statements of present witnesses, because the inconsistent statements in the recantations were not asserted before the former testimony. The court also ruled that Simpson and Zantello were attempting to manipulate the trial process by conveniently becoming unavailable to testify. Further, it ruled that because the recanting statements could not be cross-examined the prosecutor would be prejudiced by their contradictory claims regarding defendant’s innocence.
Defendant was convicted again of first-degree murder and again moved for a new trial. For the first time, he argued that the recanting statements should have been admitted under MRE 806, which permits impeachment of hearsay declarants. The court agreed that the statements could have been admitted under MRE 806, but opined that it would have excluded them under MRE 403 — because their undue prejudice outweighed their probative value — even if defendant had raised his argument under MRE 806 at trial. The court opined that the statements were highly suspect. Not only did they contain collateral and damaging allegations that could not be challenged on cross-examination, but the witnesses had conveniently rendered themselves unavailable to testify just seven and three months, respectively, after they completed their recantations. Therefore, defendant’s new argument for admission under MRE 806 did not justify a new trial.
APPEAL
Defendant appealed and the Court of Appeals reversed and remanded for a new trial, concluding that the statements should have been admitted under MRE 806. The Court held that any prejudice could have been remedied by redacting portions of the statements and instructing the jury to consider them only for their impeachment value. Applying the harmless error standard of review for nonconstitutional error, it concluded that the error required reversal because, more likely than not, it had been outcome determinative.
This Court vacated the Court of Appeals opinion and remanded for that court to “fully evaluate the harmless error question by considering the volume of untainted evidence in support of the jury verdict, not just whether the declarants were effectively impeached with other inconsistent statements at the first trial.” We also directed the Court of Appeals to consider whether the error, if any, was harmless beyond a reasonable doubt. On remand, the Court of Appeals repeated its conclusion that the statements should have been admitted and, therefore, that the trial court abused its discretion when it denied defendant’s new trial motion. The Court of Appeals also concluded that the error was not harmless beyond a reasonable doubt and again ordered a new trial. The prosecution applied for leave to appeal to this Court and we ordered oral argument to consider whether to grant leave or take other action. We now reverse.
STANDARD OP REVIEW
The correct standard of appellate review of defendant’s claimed evidentiary error has generated considerable debate in this case. The prosecution originally conceded that any error was preserved constitutional error — because it implicated defendant’s confrontation rights — and therefore subject to review for whether it was harmless beyond a reasonable doubt. But the Court of Appeals found it unnecessary to decide whether the error was constitutional in nature. It held that reversal was required even under the less stringent standard for nonconstitutional error, concluding that it was more probable than not that the error was outcome determinative. Our order of remand presumed that the standard governing preserved constitutional error applied. The prosecution now argues that any eviden tiary error is subject to plain error review because defendant did not sufficiently preserve the claim of error at trial. Because we conclude that the error, if any, was harmless under any of these standards, and because the Court of Appeals did not explicitly analyze which standard of review was appropriate, we find it unnecessary to resolve this question.
A trial court’s decision to grant or deny a motion for a new trial is reviewed for an abuse of discretion. A trial court may be said to have abused its discretion only when its decision falls outside the principled range of outcomes.
ANALYSIS
First, we conclude that the trial court acted within its discretion in denying defendant’s motion for a new trial. At trial, defendant moved that he be “allowed somehow” to introduce the unavailable witnesses’ statements as impeachment evidence. At the new-trial hearing, he argued that MRE 806 required admission of the statements. The trial court concluded that evidence impeaching hearsay declarants that qualifies for admission under MRE 806 is not automatically admissible. Rather, other jurisdictions have held with regard to the rule’s counterparts, FRE 806 and similar state provisions, that such evidence is still subject to the balancing test under MRE 403 or its equivalent. The trial court’s conclusion is supported by the plain language of MRE 806, which provides that the credibility of the declarant “may be attacked, and if attacked may be supported ....” (Emphasis added.) There is nothing in the rule of evidence that requires admission of an inconsistent statement, and MRE 806 provides no greater leeway regarding admissibility of a statement for impeachment purposes than is granted to litigants offering impeachment evidence in general. This Court expressly permits employing a balancing analysis under MRE 403 when considering the admissibility of other forms of impeachment evidence. See People v Brownridge, 459 Mich 456, 461; 591 NW2d 26 (1999). Thus, it is within the trial court’s discretion to exclude the evidence “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.” MRE 403.
“Rule 403 determinations are best left to a contemporaneous assessment of the presentation, credibility, and effect of testimony” by the trial judge. People v VanderVliet, 444 Mich 52, 81; 508 NW2d 114 (1993). Assessing probative value against prejudicial effect requires a balancing of several factors, including the time required to present the evidence and the possibility of delay, whether the evidence is needlessly cumulative, how directly the evidence tends to prove the fact for which it is offered, how essential the fact sought to be proved is to the case, the potential for confusing or misleading the jury, and whether the fact can be proved in another manner without as many harmful collateral effects. People v Oliphant, 399 Mich 472, 490; 250 NW2d 443 (1976). Unfair prejudice may exist where there is a danger that the evidence will be given undue or preemptive weight by the jury or where it would be inequitable to allow use of the evidence. People v Mills, 450 Mich 61, 75-76; 537 NW2d 909 (1995), mod on other grounds 450 Mich 1212 (1995). As we have previously noted, a party may strike “ ‘as hard as he can above, but not below, the belt.’ ” People v Vasher, 449 Mich 494, 501; 537 NW2d 168 (1995), quoting McCormick, Evidence (2d ed), § 185, p 439.
In this case, the court ruled that the recantations would have qualified for admission under MRE 806, but concluded that their prejudicial nature outweighed their probative value under MRE 403. The court reasoned that their probative value was limited because both Zantello and Simpson had been effectively impeached during cross-examination at the first trial. Zantello’s testimony at the first trial revealed that she had initially told the police that defendant was home on the night of the murder and only later asserted his absence. Further, Simpson had regularly changed his stoiy; his statements varied regarding defendant’s involvement in the crime.
The court also concluded that the recantations were highly prejudicial; Zantello and Simpson did not merely recant their former accusations, but provided lengthy explanations for why they had lied. Simpson’s statement in particular amounted to an epistle advocating defendant’s acquittal. The court opined that Simpson’s statement likely would not have been admissible even if he had testified. At a minimum, Simpson would have been vigorously cross-examined regarding the statement had he testified. Yet, because he rendered himself unavailable at the second trial, he foreclosed the possibility of cross-examination regarding his wide-ranging assertions.
We conclude that the court’s decision was principled and supported by Michigan law. The trial court reasonably excluded the statements because they were highly unfairly prejudicial. Most significantly, to the extent that the statements’ irrelevant or unfairly prejudicial content could have been redacted as suggested by the Court of Appeals, their remaining contents would have been largely cumulative.
Simpson’s recantation, which is unsworn, is an eight-page missive, more than half of which is devoted to recounting hearsay statements purportedly made by various attorneys associated with the case. For example, Simpson asserts that the prosecutor regularly advised Simpson that he “does not believe in ‘God,’ ” and that defendant’s own attorney encouraged Simpson to testify against defendant because Simpson would be “crazy” not to accept the prosecutor’s offer of immunity. The general tenor of the recantation is that the prosecutor essentially admitted to Simpson that he intended to convict defendant without regard to whether defendant was innocent. Simpson claims that the prosecutor forced Simpson to commit perjury at the first trial in order to achieve his goal. These unsworn statements would inject the specter of prosecutorial corruption into the trial in a manner that the prosecutor could not directly challenge given that Simpson refused to take the stand; the allegations injected issues into the triad that went far beyond Simpson’s credibility. Therefore, their potential for misleading or confusing the jury— and, thus, their potential for unfair prejudice — was great.
With respect to Zantello’s recanting statement, she claims to have previously perjured herself as a result of cajoling statements by a former boyfriend, who never testified and was never cross-examined about his involvement. Although Zantello testified briefly at the second trial, she was unable to answer the prosecutor’s questions because she did not “recall what [she] said” and did not want to “incriminate [her]self because of [her] former testimony” inculpating defendant. Both witnesses were thus unwilling or unable to testify regarding the contents of the statements that they signed just seven and three months, respectively, before the retrial.
For these reasons, the trial court reasonably concluded that the statements’ potential for prejudice was great. They largely contained unduly prejudicial hearsay and accusations regarding collateral issues with the potential to mislead the jury. As the Court of Appeals correctly observed, the statements could have been redacted to the extent that their contents were inadmissible or unduly prejudicial. But the remaining information was still properly excluded because it was largely cumulative when used for its only admissible purpose: impeachment. Because Simpson and Zantello were impeached with information substantially similar to the information contained in the statements, we cannot agree with the dissent that exclusion of the statements “resulted in the jury being painted a false picture.” Post at 488.
Specifically, Simpson’s statement admits that he made inconsistent statements to police beginning in 1989 “when doing so served [his] best interests], (ie: getting-deals [sic] on other non-related offenses).” He states that he lied at the first trial to avoid perjury charges and gain immunity from prosecution. He also reiterates that Lamp had threatened to kill him or his family if he implicated Lamp. He proceeds to give an account of events on the night of the murder in which he asserts that Lamp, not defendant, killed Miller. Simpson’s cross-examination during the first trial, which was read at the second trial, had similarly revealed that Simpson told varying stories over the years regarding who was responsible for the murder in order to gain personal advantage. His testimony also revealed that he had been threatened by Lamp. Simpson also explicitly acknowledged during the first trial that, if he did not accuse defendant of the murder at trial as he agreed to do in exchange for full immunity, Simpson would face various charges, including perjury. The second jury was fully informed of Simpson’s immunity deal.
Zantello’s statement similarly repeats assertions that she made at the first trial and that were read into the record at the second trial. At the first trial and in her recanting statement, Zantello confirmed that she originally told the police that she knew nothing about the murder and did not overhear defendant and Simpson talk about any murder. Indeed, as with Simpson, the primary permissible use of Zantello’s recantation would have been to show the jury that she had reverted to a previous version of her story, not that she was claiming defendant’s innocence for the first time. Accordingly, it is significant that defense counsel succeeded in confronting Zantello with the fact that she had recanted by explicitly asking her at the second trial whether she remembered making a statement that defendant “was home when [she] got home and that [she] had lied under oath originally because [she] had been threatened.” She simply answered: “No, I do not.”
Under these circumstances, the admissible portions of both statements were largely cumulative to the remaining evidence relevant to Simpson’s and Zantello’s credibility, which was presented at both trials and, with regard to Zantello, which was expanded on during her live testimony at the second trial. Therefore, the trial judge — who had become familiar with the witnesses over the course of two trials — did not abuse his discretion when he denied defendant’s motion for a new trial on the basis of defendant’s argument that admission was required under MRE 806. At a minimum, the trial court was called upon to make a close, discretionary decision regarding whether the danger of undue prejudice that the statements presented outweighed their probative nature. Moreover, the court was required to consider defendant’s claim for admission on the basis of an argument that defendant did not advance until after trial and, therefore, which the court was unable to evaluate contemporaneously at the time of the objection. Indeed, at trial, defendant not only failed to cite a single court rule, but he moved to admit each statement in its entirety; he did not argue for admission under MRE 806 of redacted versions of the statements to avoid unfair prejudice to the prosecution. Under these circumstances, we disagree with the dissent’s contention that exclusion of the statements amounted to error, let alone plain error. “[T]he trial court’s decision on a close evidentiary question . . . ordinarily cannot be an abuse of discretion.” People v Sabin (After Remand), 463 Mich 43, 67; 614 NW2d 888 (2000). Here, where the court was faced with the witnesses’ unfairly prejudicial and largely cumulative inconsistent statements, we cannot say that the court’s decision lay outside the range of principled outcomes.
Further, the trial court’s discretionary decision in this case differs from that of the trial court in United States v Grant, 256 F3d 1146, 1155 (CA 11, 2001), on which the dissent relies. In Grant, a co-conspirator never testified because he had been deported before the trial took place. Id. at 1153. The co-conspirator’s previous, arguably inculpatory statements were read into the record; the statements circumstantially linked the defendant to the conspiracy but did not directly name him as a conspirator. Id. at 1152-1153. At trial, defense counsel properly moved under FRE 806 for admission of exculpatory statements the co-conspirator made after he had been deported, in which he affirmatively claimed that the defendant was uninvolved. Id. at 1153. The trial court denied the motion, ruling that the exculpatory statements were not actually inconsistent with the co-conspirator’s earlier, circumstantially inculpatory statements. Id. The Eleventh Circuit Court of Appeals reversed, concluding that the trial court’s view of inconsistency was too narrow and that the exculpatory statements would have significant probative value with regard to the credibility of the purportedly inculpatory statements. Id. at 1153-1155.
The circumstances of Grant differ from those of the case before us in crucial respects. First, the exculpatory statements in Grant were significantly more probative because they appear to have been the co-conspirator’s only exculpatory statements. For this reason, in contrast to the instant case, they were not cumulative. Second, although the prosecutor in Grant observed on appeal that the exculpatory statements were unreliable because they were made only after the co-conspirator was deported, the trial court in Grant did not find that the co-conspirator explicitly attempted to manipulate the trial process by injecting collateral issues into the trial or gained an advantage by changing his story. Rather, as noted earlier, the court concluded that the statements did not directly contradict each other. In sum, without regard to whether we agree with the Grant court’s holding, we conclude that Grant is distinguishable.
Most significantly, even if the trial court in this case erred, any error was harmless under each of the potentially applicable standards of review. The harmless error analysis employed by the Court of Appeals was clearly erroneous for several reasons. On remand, when considering the effect of any error on the remaining evidence presented at trial, the Court reasoned:
Lamp’s testimony would be subject to the utmost scrutiny, given his undisputed involvement in the murder, his plea agreement, and defendant’s theory, supported by many of the impeaching statements that were not admitted, that Lamp had done the shooting himself. Further, much of the interlocking testimony concerned the allegation that defendant killed Miller and cut off his ear at the direction of drug dealer Benny Williams. However, police testified that they had no evidence connecting Williams to the murder, Williams testified that he did not know Miller and had not received one of his ears, and police also testified that there was no physical evidence indicating that Miller’s ear had been cut off. Regarding Mock and her sister, there was testimony that they and defendant were always drinking when they were together. Further Mock, her sister, and Z[a]ntello, who was supposedly present during some of the discussions, gave differing accounts of what defendant said. Lastly, we conclude that the evidence overwhelmingly supported that defendant knew something about the murder, but his role, and the extent of his knowledge and participation or assistance, largely depended on Simpson’s testimony.[ ]
First and foremost, the court erred as a matter of law by considering the recanting statements for improper purposes. It erroneously concluded that defendant’s theory that Lamp committed the shooting without defendant’s aid would have been supported “by many of the im peaching statements that were not admitted, that Lamp had done the shooting himself.” To the contrary, had the statements been admitted, they could not have been directly considered as evidence in favor of the defense theory. They could have been used only for the purpose of impeaching the credibility of Simpson and Zantello. MRE 806. Thus, at the very most, the statements would have caused the jury to discredit entirely Simpson’s and Zantello’s testimony inculpating defendant. The remaining untainted evidence — in the form of testimony from Lamp, Mock and Barr — alone established beyond a reasonable doubt that defendant was at least an accomplice to first-degree, premeditated murder.
The Court of Appeals mischaracterizes the untainted evidence by essentially dismissing the very significant testimony of Mock and Barr. The sisters both described a specific night and location at Lion’s Park where defendant tearfully apologized and admitted to them that he had participated in Miller’s murder. Mock recalled that defendant specifically told her that defendant pulled the trigger and cut off Miller’s ear. Barr recalled defendant saying that defendant was present at the murder but thought that he said Lamp had pulled the trigger. Barr also testified that, around the time of the murder, she had been at someone’s house and “they were saying that Charles’ ear was in the freezer.” Most significantly, Mock attested that, in April 1990, in light of defendant’s confessions, Mock convinced him that he should speak with the police. Defendant initially agreed to do so the next day. Mock called the police and told them about defendant’s admissions but, by the time the police contacted defendant, he refused to provide them any details. Michigan State Police Detective Sergeant Dana Averill confirmed that Mock contacted the police and that Mock, Barr, and Zantello gave statements regarding defendant’s admissions. Overall the substantially consistent testimony of Mock and Barr, which was confirmed in part by Averill’s testimony, provided strong evidence against defendant. Significantly, their testimony also directly corroborated Lamp’s testimony and added to his credibility. The Court of Appéals clearly erred when it simply discounted their testimony because they were “always drinking when they were together” and “gave differing accounts of what defendant said.”
Finally, because Zantello’s and Simpson’s recantations could not have been introduced for their truth, defendant still would have been left to rely on the defense theories that he presented at trial to cast doubt on the consistent testimony from Lamp, Mock, and Barr. His primary alibi defense depended solely on the testimony of his three sisters, which was suspect because of their obvious bias in favor of their brother. Defendant also relied, as does the dissent, on Williams’s unsurprising testimony that, although Williams was a “fairly large-scale cocaine dealer” at the time of Miller’s murder, he did not commission the murder. A police officer also attested that the police were unable to link Williams to the crime. But, significantly, even the defense conceded in closing argument that Miller planned to steal from Williams; the defense simply argued that Lamp, “having heard Mr. Miller. . . was going to steal from Benny Williams, fearing that he, Mr. Lamp, was next, he decided that Miller had to die first.” Regarding the lack of physical evidence establishing that Miller’s ear had been cut off, all parties agreed that Miller’s remains were skeletal and that most of the soft tissue had decayed. Contrary to the implications of defendant and the dissent, no testimony or physical evidence affirmatively suggests that Miller’s ear was not severed. The defense also attempted to divert the jury from Lamp’s description of the crime by presenting several experts who opined that Miller may have been killed by blunt force, rather than by a bullet. Yet Lamp himself testified that Lamp had access to guns and therefore encouraged defendant to shoot Miller instead of beating him to death, that Lamp provided the gun defendant used to kill Miller, and that Lamp sold the gun after the crime. Therefore, the defense theory that Miller was beaten, rather than shot, did little to inculpate Lamp and exculpate defendant.
In sum, the volume of untainted evidence against defendant was significant. The facts do not cast reasonable doubt on the prosecutor’s theory of the case. In particular, nothing in the record suggested that Mock and Barr had any motive to falsely implicate defendant. They came forward early in the investigation, and the details and timing of their testimony were directly confirmed by the police. Although Zantello’s and Simpson’s original inculpatory testimony certainly would strengthen the prosecution’s case, their testimony was not critical for the prosecution because defendant’s culpability was clearly established by the other witnesses. Moreover, because the jury had already heard the evidence impeaching Simpson and Zantello that was offered at the first trial, and had obviously chosen to disregard it, the likelihood that the jury would have been convinced by cumulative impeachment evidence was slight in light of the fact that Simpson’s and Zantello’s inculpatory testimony so clearly coincided with the untainted evidence. In light of the volume of untainted evidence against defendant, any error did not affect the outcome of the case.
conclusion
We hold that the trial court did not abuse its discretion when it denied defendant’s motion for a new trial on the basis of defendant’s argument that MRE 806 required admission of Simpson’s and Zantello’s highly prejudicial and cumulative recantations. Further, any error would also have been harmless under any of the potentially applicable standards of review. The Court of Appeals erred as a matter of law by considering the recantations for the truth of the matters asserted, instead of as impeachment of the recanting witnesses’ testimony, and improperly dismissed the testimony of two key prosecution witnesses. For these reasons, we reverse the judgment of the Court of Appeals and remand the case to that court for consideration of defendant’s remaining issues on appeal.
Taylor, C.J., and Weaver and Young, JJ., concurred with Corrigan, J.
Because the trial court acknowledged that it had incorrectly informed the first jury about the nature of a codefendant’s plea agreement, it granted defendant’s first motion for a new trial.
Zantello submitted a sworn and notarized statement. Simpson signed his statement, which included his assertion that the allegations therein were true, but his statement was not sworn and notarized.
MRE 806 states:
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. [Emphasis added.]
People v Blaekston, unpublished opinion per curiam of the Court of Appeals, issued January 18, 2005 (Docket No. 245099) (Blackston I), pp 5-8, vacated 474 Mich 915 (2005).
Id. at 9.
People v Blackston, 474 Mich 915 (2005).
People v Blackston (On Remand), unpublished opinion per curiam of the Court of Appeals, issued May 24, 2007 (Docket No. 245099) (Blackston IT).
480 Mich 929 (2007).
People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999); Blackston I, supra at 9 n 3.
Carines, supra at 774; Blackston I, supra at 9 n 3 and accompanying text.
474 Mich 915 (2005).
Under the plain error standard, defendant would be obliged to show that (1) an error occurred, (2) the error was plain or obvious, and (3) the error affected the outcome of the trial. Carines, supra at 763. Reversal is then warranted only if defendant is actually innocent of the crime or if the error “ ‘seriously affect[ed] the fairness, integrity or public reputation of [the] judicial proceedings ....’” Id., quoting United States v Olano, 507 US 725, 736; 113 S Ct 1770; 123 L Ed 2d 508. (1993) (internal citation omitted; brackets in original).
People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003).
People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
The dissent asserts, and the prosecution appears to assume, that defendant moved for admission under MRE 613. Post at 479 n 5,493. The trial transcript reveals to the contrary that defendant did not cite any court rules. In the face of his failure to cite any authority, the trial court itself cited MRE 613 among its reasons for denying defendant’s motion.
We fail to see the relevance of the dissent’s suggestion that “[i]t is undisputed that if Simpson and Zantello had testified against defendant at his second trial, the statements at issue here would have been admissible as prior inconsistent statements.” Post at 482. We cannot know what testimony Simpson and Zantello would have given if they had testified at the second trial. It is pure speculation to assume that the content of their testimony would have justified admission of their recantations. Further, we have no reason to assume that their recantations’ admissibility under these hypothetical circumstances would be “undisputed.” To the contrary, the extent of their admissibility would be debatable and even the admissible portions would be carefully considered under MRE 403.
See, e.g., Vaughn v Willis, 853 F2d 1372, 1379 (CA 7, 1988); Arizona v Huerstel, 206 Ariz 93, 104; 75 P3d 698 (Ariz, 2003); cf. United States v Grant, 256 F3d 1146, 1155 (CA 11, 2001) (requiring admission of evidence under FRE 806 but leaving open whether FRE 403 may sometimes bar evidence otherwise admissible under FRE 806).
The court also opined that Simpson had consistently attempted to manipulate the trial process by recanting but then engineering his own absence. Simpson recanted only after receiving the benefit of immunity from prosecution and then would not cooperate with the judge at the retrial lest he lose that immunity. Before the retrial, Simpson wrote to the judge that he would refuse to testify. He ultimately appeared before the court, but the court declared him unavailable after he refused to take the stand.
Indeed, as the dissent notes, post at 475 n 1, Simpson confirmed that he accused defendant of the murder each time Simpson testified under oath; he accused defendant under oath in response to an investigative subpoena as well as at the first trial. Simpson asserted that defendant was not present at the murder only in unsworn, out-of-court statements.
Significantly, as will be discussed further infra, the central error of the Court of Appeals’ analysis is that it considers the statements’ contents for their truth, rather than merely for impeachment purposes.
Thus, in contrast to the case before us, defense counsel contemporaneously argued for admission under FRE 806 at trial. Yet the prosecutor did not argue that admission created undue prejudice until the issue was reviewed on appeal. Id. at 1155.
We agree with the dissent that the facts of Vaughn v Willis, 853 F2d 1372, 1379 (CA 7, 1988), are not perfectly comparable to those of the instant case. Here, the facts fall on a spectrum somewhere between those of Grant and those of Vaughn. But the mere fact that the unique circumstances of this case and those of Vaughn are different in no way requires the conclusion that the trial court abused its discretion here.
Blackston II, supra at 9.
The dissent similarly errs when it asserts that the content of the recantations would have supported defendant’s claim of innocence instead of being used only to undermine the credibility of Zantello and Simpson. See, e.g., post at 491.
Defendant confessed twice: once at Lion’s Park, to Mock and Barr, and on a separate occasion to Mock and Zantello at Zantello’s house after defendant had moved out of the house.
Averill also spoke to defendant at that time and testified that defendant never specifically denied his involvement but was uncooperative and said something like, “When the time comes, the truth will come out and I’ll tell you when I’m ready.”
The dissent also discredits the testimony of Mock and Barr. But, contrary to the dissent’s implications, their testimony was consistent with regard to defendant’s critical admissions that he was present during and directly involved in the murder. For example, Barr did come to believe that defendant cut off Miller’s ear; she simply could not remember whether defendant or someone else had first told her this. She admitted that she remembered only “pieces” of defendant’s confession to her and Mock because she had been drinking at the time. The dissent also emphasizes that Mock was a suspect during the investigation of Miller’s death. Post at 490. But there is no reason to conclude that the jury would have entirely discredited Mock’s testimony for this reason. As Mock explained during her testimony, Mock had been a suspect but she had not been singled out by the police; rather, she explained that “ [everybody was” a suspect at the time. Overall, the dissent focuses on minor discrepancies among the details of Mock’s and Barr’s testimony. But such discrepancies are unsurprising when the testimony occurred a decade after the relevant events and conversations took place. The jury had reason to credit their testimony precisely because of the substantial similarity of their memories of the relevant events despite this significant lapse in time. | [
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TAYLOR, C.J.
In this case, we review a trial court’s award of “reasonable” attorney fees as part of case-evaluation sanctions under MCR 2.403(0) calculated under some of the factors we listed in Wood v Detroit Automobile Inter-Ins Exch, 413 Mich 573; 321 NW2d 653 (1982), and Rule 1.5(a) of the Michigan Rules of Professional Conduct. We take this opportunity to clarify that the trial court should begin the process of calculating a reasonable attorney fee by determining factor 3 under MRPC 1.5(a), i.e., the reasonable hourly or daily rate customarily charged in the locality for similar legal services, using reliable surveys or other credible evidence. This number should be multiplied by the reasonable number of hours expended. This will lead to a more objective analysis. After this, the court may consider making adjustments up or down in light of the other factors listed in Wood and MRPC 1.5(a). In order to aid appellate review, the court should briefly indicate its view of each of the factors.
Given that the trial court made its decision without first determining the reasonable hourly or daily rate customarily charged in the locality for similar legal services, we vacate the lower court judgments regarding the case-evaluation sanctions and remand the case to the trial court to revisit the issue in light of the opinion we adopt today.
I. STATEMENT OF PROCEEDINGS
Plaintiff sued defendants in 2003 for dental malpractice in the Oakland Circuit Court. The case went to case evaluation and was evaluated at $50,000. Plaintiff accepted the award, but defendants rejected it. After a 2x/2-day trial, the jury returned a verdict in favor of plaintiff. The verdict, reduced to present value, was $46,631.18:
After defendants’ motion for judgment notwithstanding the verdict or for a new trial was denied, plaintiff filed a motion in January 2005 seeking case-evaluation sanctions under MCR 2.403. Plaintiff sought $68,706.50 in attorney fees for time spent by four lawyers at the firm that represented him. In particular, plaintiff sought $450 an hour for the 102 hours lead trial attorney Robert Gittleman claimed, $450 an hour for 6 hours claimed by another partner, $275 an hour for 59 hours attributable to one associate, and $275 an hour for 14 hours claimed by another associate. Plaintiffs motion was supported by several items, including Mr. Gittleman’s curriculum vitae showing his extensive experience in trying dental malpractice cases. Plaintiffs motion also attached copies of three circuit court judgments awarding Mr. Gittleman attorney fees: a 1985 case awarding $200 an hour, a 1998 case awarding $300 an hour, and a 2004 case awarding $400 an hour. Plaintiff also represented that the other partner had been practicing law for 35 years and had tried numerous cases that resulted in favorable verdicts. The motion also indicated that the associates had both tried personal injury cases to conclusion and that $275 an hour was the going rate for their work and research, which were necessitated by the evaluation rejection.
Defendants presented numerous objections, arguing that the requested attorney fees would be highly unreasonable if they were awarded and specifically challenged the rate of $450 an hour and the fact that the fees sought exceeded the judgment. They contrasted the requested $450 an hour rate and the relatively small verdict with those in a recent Court of Appeals case, Zdrojewski v Murphy, 254 Mich App 50; 657 NW2d 721 (2002), in which a plaintiff’s attorney had sought $350 an hour but had only been awarded $150 an hour in case-evaluation sanctions in a personal injury case where the verdict had been $900,000. An objection was also made that some of the billings were duplicative, in that it was unnecessary for two lawyers to jointly try the same relatively simple two-day case. Defense counsel indicated that his challenge was not so much to the hours claimed (other than the duplication claim), but to the rates sought. However, he did not seek an evidentiary hearing. Instead, he agreed to have the court decide the motion on the basis of what had been submitted.
The trial court indicated its belief that $450 an hour was a reasonable rate for Mr. Gittleman. The court took judicial notice of the fact that senior trial practitioners in Oakland County bill rates of about $450 an hour. The judge indicated that he had reviewed the billings and that he did not believe there was any duplication. The court said that Mr. Gittleman was a recognized practitioner in the area of dental malpractice and that he had a superlative standing in that area, having tried numerous cases. The court, however, did not make any findings relevant to the other partner or the associates. The court concluded by stating that the entire amount claimed was reasonable and signed an order granting attorney fees of $65,556 (the claimed amount of $68,706.50 minus the stipulation to drop seven hours attributable to Mr. Gittleman).
Defendants appealed in the Court of Appeals, arguing that the hourly rates were unreasonable, and attaching an article from the November 2003 issue of the Michigan Bar Journal showing that the median billing rate for equity partners in Michigan was $200 an hour and $150 an hour for associates.
The panel affirmed in an unpublished opinion. It rejected defendants’ claim that the amount of the attorney-fee award was excessive because it was based on unreasonable hourly rates. The Court of Appeals agreed with the trial court that $450 an hour was a reasonable rate for Mr. Gittleman. The panel conceded that the data submitted by defendants showed lower rates, but concluded that the data did not reflect the range of hourly rates charged by attorneys who specialize in complex litigation such as dental malpractice. It acknowledged that the trial court had not made any findings regarding the other three attorneys. Nevertheless, the panel found sufficient the trial court’s overall statements regarding the complexity of dental malpractice cases as well as the skill, time, and cost expended to obtain the favorable verdict. Finally, the Court of Appeals refused to follow Zdrojewski because there was evidence that courts of this state had consistently awarded attorney fees for Mr. Gittleman’s services at hourly rates higher than the $150 an hour approved in Zdrojewski.
Defendants appealed in this Court, and we granted leave to appeal, limited to the case-evaluation-sanction issue, asking the parties to address several issues relating to the Wood factors, and also invited briefs from several amici curiae.
II. STANDARD OF REVIEW
A trial court’s decision whether to grant case-evaluation sanctions under MCR 2.403(0) presents a question of law, which this Court reviews de novo. Casco Twp v Secretary of State, 472 Mich 566, 571; 701 NW2d 102 (2005); Allard v State Farm Ins Co, 271 Mich App 394, 397; 722 NW2d 268 (2006). We review for an abuse of discretion a trial court’s award of attorney fees and costs. Wood, 413 Mich at 588. An abuse of discretion occurs when the trial court’s decision is outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
III. LEGAL BACKGROUND
A. PURPOSE OF THE RULE
The general “American rule” is that “attorney fees are not ordinarily recoverable unless a statute, court rule, or common-law exception provides the contrary.” Nemeth v Abonmarche Dev, Inc, 457 Mich 16, 37-38; 576 NW2d 641 (1998); Haliw v Sterling Hts, 471 Mich 700, 706; 691 NW2d 753 (2005). Consistently with the American rule, this Court has specifically authorized case-evaluation sanctions through court rule, allowing the awarding of reasonable attorney fees to promote early settlements. The examination of those rules and the extent to which fees can be awarded is at issue in this case.
MCR 2.403 is the Michigan court rule regarding case evaluation. The rule holds that if both parties accept a case evaluation, the action is considered settled and judgment will be entered in accordance with the evaluation. However, if one party accepts the award and one rejects it, as happened here, and the case proceeds to a verdict, the rejecting party must pay the opposing party’s actual costs unless the verdict is, after several adjustments, more than 10 percent more favorable to the rejecting party than the case evaluation. Actual costs are defined in MCR 2.403(0) (6) as those costs taxable in any civil action and “a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the case evaluation.”
The purpose of this fee-shifting provision is to encourage the parties to seriously consider the evaluation and provide financial penalties to the party that, as it develops, “should” have accepted but did not. This encouragement of settlements is traditional in our jurisprudence, as it deters protracted litigation with all its costs and also shifts the financial burden of trial onto the party who imprudently rejected the case evaluation. Rohl v Leone, 258 Mich App 72, 75; 669 NW2d 579 (2003); Bennett v Weitz, 220 Mich App 295, 301; 559 NW2d 354 (1996). This rule, however, is not designed to provide a form of economic relief to improve the financial lot of attorneys or to produce windfalls. Rather, it only permits an award of a reasonable fee, i.e., a fee similar to that customarily charged in the locality for similar legal services, which, of course, may differ from the actual fee charged or the highest rate the attorney might otherwise command. As Coulter v Tennessee, 805 F2d 146, 148 (CA 6, 1986), explains, reasonable fees “are different from the prices charged to well-to-do clients by the most noted lawyers and renowned firms in a region.”
B. PLAINTIFF WAS ENTITLED TO CASE-EVALUATION SANCTIONS
Defendants here have correctly conceded that case-evaluation sanctions were applicable because, even ignoring the costs and interest of $23,623.99 that are to be added to the verdict, the verdict as reduced to its present value of $46,631.18 was not more than 10 percent less than the $50,000 case-evaluation amount.
C. DETERMINING A REASONABLE ATTORNEY FEE
As all agree, the burden of proving the reasonableness of the requested fees rests with the party request ing them. Petterman v Haverhill Farms, Inc, 125 Mich App 30, 33; 335 NW2d 710 (1983). In Michigan, the trial courts have been required to consider the totality of special circumstances applicable to the case at hand. Smolen v Dahlmann Apartments, Ltd, 186 Mich App 292, 297; 463 NW2d 261 (1990); Hartman v Associated Truck Lines, 178 Mich App 426, 431; 444 NW2d 159 (1989). Wood listed the following six factors to be considered in determining a reasonable attorney fee:
(1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client. [Wood, 413 Mich at 588 (citation omitted)].[ ]
The trial courts have also relied on the eight factors listed in Rule 1.5(a) of the Michigan Rules of Professional Conduct, see, e.g., Dep’t of Transportation v Randolph, 461 Mich 757; 610 NW2d 893 (2000), and In re Condemnation of Private Prop for Hwy Purposes (Dep’t of Transportation v D & T Constr Co), 209 Mich App 336, 341-342; 530 NW2d 183 (1995), which overlap the Wood factors and include:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent. [MRPC 1.5(a).]
In determining “the fee customarily charged in the locality for similar legal services,” the trial courts have routinely relied on data contained in surveys such as the Economics of the Law Practice Surveys that are published by the State Bar of Michigan. See, e.g., Zdrojewski, 254 Mich App at 73; Temple v Kelel Distributing Co Inc, 183 Mich App 326, 333; 454 NW2d 610 (1990). The above factors have not been exclusive, and the trial courts could consider any additional relevant factors. Wood, 413 Mich at 588.
IV ANALYSIS
We conclude that our current multifactor approach needs some fine-tuning. We hold that a trial court should begin its analysis by determining the fee customarily charged in the locality for similar legal services, i.e., factor 3 under MRPC 1.5(a). In determining this number, the court should use reliable surveys or other credible evidence of the legal market. This number should be multiplied by the reasonable number of hours expended in the case (factor 1 under MRPC 1.5[a] and factor 2 under Wood). The number produced by this calculation should serve as the starting point for calculating a reasonable attorney fee. We believe that having the trial court consider these two factors first will lead to greater consistency in awards. Thereafter, the court should consider the remaining WoodfMRVC factors to determine whether an up or down adjustment is appropriate. And, in order to aid appellate review, a trial court should briefly discuss its view of the remaining factors.
The reasonable hourly rate represents the fee customarily charged in the locality for similar legal services, which is reflected by the market rate for the attorney’s work. “The market rate is the rate that lawyers of similar ability and experience in the community normally charge their paying clients for the type of work in question.” Eddleman v Switchcraft, Inc, 965 F2d 422, 424 (CA 7, 1992) (citation and quotation omitted). We emphasize that “the burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney’s own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v Stenson, 465 US 886; 895 n 11; 104 S Ct 1541; 79 L Ed 2d 891 (1984). The fees customarily charged in the locality for similar legal services can be established by testimony or empirical data found in surveys and other reliable reports. But we caution that the fee applicant must present something more than anecdotal statements to establish the customary fee for the locality. Both the parties and the trial courts of this state should avail themselves of the most relevant available data. For example, as noted earlier, in this case defendant submitted an article from the Michigan Bar Journal regarding the economic status of attorneys in Michigan. By recognizing the importance of such data, we note that the State Bar of Michigan, as well as other private entities, can provide a valuable service by regularly publishing studies on the prevailing market rates for legal services in this state. We also note that the benefit of such studies would be magnified by more specific data relevant to variations in locality, experience, and practice area.
In considering the time and labor involved (factor 1 under MRPC 1.5[a] and factor 2 under Wood) the court must determine the reasonable number of hours expended by each attorney. The fee applicant must submit detailed billing records, which the court must examine and opposing parties may contest for reasonableness. The fee applicant bears the burden of supporting its claimed hours with evidentiary support. If a factual dispute exists over the reasonableness of the hours billed or hourly rate claimed by the fee applicant, the party opposing the fee request is entitled to an evidentiary hearing to challenge the applicant’s evidence and to present any countervailing evidence.
Multiplying the reasonable hourly rate by the reasonable hours billed will produce a baseline figure. After these two calculations, the court should consider the other factors and determine whether they support an increase or decrease in the base number.
Having clarified how a trial court should go forward in calculating a reasonable attorney fee, we find it appropriate to vacate the award and remand this case to the trial court for reconsideration under this opinion. We offer the following observations in order to provide guidance to the trial court.
In making its ruling, the trial court indicated it was taking judicial notice of the fact that top trial attorneys in Oakland County charge $450 an hour or more. While we do not doubt that some trial attorneys have such rates, the fee customarily charged in the locality for similar legal services, which likely is different, should be the measure. That is, reasonable fees are different from the fees paid to the top lawyers by the most well-to-do clients. Coulter, supra. The trial court also erred in relying on previous awards Mr. Gittleman obtained without considering whether those fees might have been justified by the particular circumstances of the earlier cases, such as the complexity and the skill required. Moreover, the trial court erred when it conclusorily stated that Mr. Gittleman had tried the case in a “professional manner,” without further explanation, because this is something all attorneys should be expected to do.
As previously noted, the trial court only made findings regarding Mr. Gittleman. On remand, the court should be careful to perform a separate analysis with reference to the other three attorneys, considering both the hourly rates and the number of hours reasonably expended, and should consider whether it was reasonable for plaintiffs firm to have two lawyers “on the clock” during the trial.
We reiterate that the goal of awarding attorney fees under MCR 2.403 is to reimburse a prevailing party for its “reasonable” attorney fee; it is not intended to “replicate exactly the fee an attorney could earn through a private fee arrangement with his client.” We also caution the courts to avoid duplicative consideration of the factors mentioned above.
V RESPONSE TO THE DISSENT
The dissent’s primary complaint seems to be that a “reasonable fee” for an exceptional lawyer cannot be determined by using the fee charged by the average attorney. But Wood factor 1 mentions the professional standing and experience of the attorney, Wood factor 2 mentions the skill involved, and MRPC 1.5(a)(7) speaks of “the experience, reputation, and ability of the lawyer.” These factors allow an upward adjustment for the truly exceptional lawyer.
The dissent criticizes our use of the market rate for attorney services to determine a reasonable rate, stating that “the market rate for an individual attorney’s work is not some figure that can be plucked from a reference manual or interpolated from a statistical graph.” Post at 551. To an extent, we agree; see note 18 of this opinion, explaining that the fee charged by top trial lawyers in Oakland County is not a proper fact for judicial notice. This is not an exact science; if it were, no factors or analysis would be required. We merely aim to provide a workable, objective methodology for assessing reasonable attorney fees that Michigan courts can apply consistently to our various fee-shifting rules and statutes. To that end, we are persuaded by the guidance offered by the United States Supreme Court in Blum, and we note that the dissent offers no similar, countervailing guidance.
The dissent agrees with the Supreme Court’s assessment in Blum that the market rate, although not always easily discerned, is a “valid inquiry.” Post at 552. Nevertheless, it rejects the principled mechanism the Blum Court chose to best conduct the “valid inquiry” into the market rate. Post at 552. We, however, accept the Blum Court’s resolution, placing the burden on the fee applicant “to produce satisfactory evidence — in addition to the attorney’s own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum, supra at 895 n 11. The dissent concedes that “assessing that rate should include comparisons with rates for similar services,” post at 552, but offers no rubric to guide Michigan courts in doing so. Unlike the dissent, we choose to provide the guidance that has been, and the dissent would allow to remain, sorely lacking for the many Michigan courts that are asked to impose “reasonable attorney fees” under our fee-shifting rules and statutes.
The dissent also faults us for using the fee customarily charged in the locality for similar legal services as a starting point. See post at 546. We see no fault in providing an objective baseline, i.e., a starting point, to aid trial and appellate courts alike in assessing a “reasonable fee.” Whimsy is a double-edged sword. If a trial court awarded a highly experienced and skilled attorney, such as Mr. Gittleman, a “reasonable attorney fee” at a rate of $100 an hour — a rate well below the $150 an hour median rate for associate attorneys in Michigan — we would have the same concerns with the absence of an objective framework to assess such a judgment. An objective starting point, at a minimum, provides a more concrete basis for setting and reviewing a reasonable attorney fee. Again, we reject the dissent’s argument to leave Michigan courts without guidance.
The dissent asserts that our decision is somehow inconsistent with Randolph, in which we rejected the federal lodestar method for calculating the reasonableness of an attorney fee under our condemnation statute. In Randolph, we specifically noted that MCL 213.66(3) requires consideration of whether actual fees are reasonable, and that this is different from fee-shifting statutes that simply authorize the trial court to award “reasonable attorney fees” without regard to the fees actually charged. Randolph, 461 Mich at 765-766. Contrary to the dissent’s assertion, our opinion today does not contradict, undermine, or overrule Randolph.
VI. CONCLUSION
In determining a reasonable attorney fee, a trial court should first determine the fee customarily charged in the locality for similar legal services. In general, the court shall make this determination using reliable surveys or other credible evidence. Then, the court should multiply that amount by the reasonable number of hours expended in the case. The court may consider making adjustments up or down to this base number in light of the other factors listed in Wood and MRPC 1.5(a). In order to aid appellate review, the court should briefly indicate its view of each of the factors.
The judgments of the Court of Appeals and the trial court regarding the attorney-fee issue are vacated, and the case is remanded to the trial court for reconsideration in light of this opinion.
YOUNG, J., concurred with TAYLOR, C.J.
All but $300 of the verdict consisted of future noneconomic damages, which were set at $2,800 a year for the remaining 36 years of plaintiffs life expectancy. Pursuant to MCL 600.6306, those future noneconomic damages were reduced to their present value.
Plaintiff stipulated a reduction of seven hours from the time Mr. Gittleman claimed after defendants objected to the claim.
For example, Mr. Gittleman charged eight hours for a full day of trial on December 17, 2004, and one of the associates also charged eight hours for that same day. Further, Mr. Gittleman billed five hours for the third day of trial while an associate charged eight hours for the same day.
Plaintiff was awarded $23,623.99 in costs.
Stiffman, A snapshot of the economic status of attorneys in Michigan, 82 Mich B J 20 (November 2003).
Smith v Khouri, unpublished opinion per curiam, issued November 16, 2006 (Docket No. 262139).
479 Mich 852 (2007).
In 2000, the name of the process described in MCR 2.403 was changed from “mediation” to “case evaluation.” The term “mediation” now applies to the process described in MCR 2.411.
MCR 2.403(M)(1).
MCR 2.403(O)(3) provides that a verdict must be adjusted by adding to it assessable costs and interest and that, after this adjustment, the verdict is considered more favorable to a defendant “if it is more than 10 percent below the evaluation____” As we explained in Haliw, 471 Mich at 711, actual costs do not include attorney fees incurred when responding to appeals. Moreover, as explained in Rafferty v Markovitz, 461 Mich 265, 273 n 6; 602 NW2d 367 (1999), attorney fees are not allowed under the court rule if they have already been recovered pursuant to a statute. As we held in Rafferty, double recovery of attorney fees under two different authorities is not appropriate, even if the authorities advance different purposes.
See Pennsylvania v Delaware Valley Citizens’ Council for Clean Air, 478 US 546, 565; 106 S Ct 3088; 92 L Ed 2d 439 (1986) (“[T]hese [attorney-fee shifting] statutes were not designed as a form of economic relief to improve the financial lot of attorneys ....”).
“Reasonable fees are not equivalent to actual fees charged.” Zdrojewski, 254 Mich App at 72.
Accord Hensley v Eckerhart, 461 US 424, 433; 103 S Ct 1933; 76 L Ed 2d 40 (1983) (stating that the party seeking the fee award bears the burden of proving the reasonableness of the hours worked and the hourly rates claimed); Blum v Stenson, 465 US 886, 896 n 11; 104 S Ct 1541; 79 L Ed 2d 891 (1984).
These factors were traceable to Crawley v Schick, 48 Mich App 728, 737; 211 NW2d 217 (1973). Crawley relied in part on then-applicable Disciplinary Rule 2-106(B) of the Code of Professional Responsibility and Ethics.
We also stated in Wood that a trial court is not limited to those factors in making its determination and that the trial court need not detail its findings on each specific factor considered. Wood, 413 Mich at 588. We clarify today that in order to aid appellate review, the court should briefly address on the record its view of each of the factors.
Wood, 413 Mich at 588, held that trial courts were “not limited to [the six listed] factors in making [their] determination[s].” To the extent a trial court considers any factor not enumerated in Wood or MRPC 1.5(a), the court should expressly indicate this and justify the relevance and use of the new factor.
See n 5, supra. The trial court did not have this report. It was first submitted to the Court of Appeals.
Aforman, v Housing Auth of Montgomery, 836 F2d 1292, 1301 (CA 11, 1988), quoting Hensley, 461 US at 434 (in determining hours reasonably expended, the Court should exclude “excessive, redundant or otherwise unnecessary” hours regardless of the attorneys’ skill, reputation or experience).
We note that the hourly rate charged by top trial attorneys in Oakland County was not a proper fact for judicial notice. A judicially noticed fact must be “one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” MRE 201(b).
Delaware Valley, 478 US at 565; see also Cleary v Turning Point, 203 Mich App 208, 212; 512 NW2d 9 (1993).
Factor 3 under Wood, 413 Mich at 588, and factor 4 under MRPC 1.5(a), is “the amount in question and the results achieved.” Although this factor may be relevant in other situations, we conclude that it is not a relevant consideration in determining a reasonable attorney fee for case-evaluation sanctions. As stated, the purpose of MCR 2.403(0) is to encourage serious consideration of case-evaluation awards and penalize a party that “should have” accepted the case’s evaluation. The rejecting party that does not achieve a more favorable result must pay reasonable attorney fees “for services necessitated by the rejection....” MCR 2.403(0X6). It would be inconsistent with MCR 2.403(0) to reduce the accepting party’s reasonable attorney fees “for services necessitated by the rejection” on the basis of the amount in question or the results achieved. If we were to do so, the accepting party could have properly evaluated the case’s value, yet be forced to incur additional fees, potentially in excess of the case’s value. Reducing the accepting party’s reasonable attorney fees necessitated by the rejection because they exceed or are disproportionate to the value the accepting party correctly assessed undermines the rule. MCR 2.403(0) penalizes the rejecting party who incorrectly valued the case, not the accepting party who correctly assessed the case’s value at a much earlier and more efficient time. Reducing the accepting party’s reasonable attorney fees on the basis of proportionality simply encourages the inefficiency the rule seeks to combat.
Although factor 8 under MRPC 1.5(a), “whether the fee is fixed or contingent,” may be relevant in other situations, we conclude that it is not relevant in determining a reasonable attorney fee for case-evaluation sanctions. Again, sanctions under MCR 2.403 are to reimburse a party for reasonable legal fees for services necessitated by the rejection of the case evaluation. Whether the attorney-fee agreement is fixed or contingent is unrelated to the legal services necessitated by the rejection of a case evaluation.
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] |
CAVANAGH, J.
This case involves further analysis of the issue presented in Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702; 664 NW2d 193 (2003), in which we held that the county commissioners act (CCA) has priority over the Township Zoning Act (TZA). Today we are asked to gauge the scope of that priority, which relates to a county’s power to “site” and “erect” “building(s),” by defining the CCA’s term “site.” In defining that term, we hold that land uses that are ancillary to the county building and not indispensable to its normal use are not covered by the CCA’s grant of priority over local regulations. Therefore, in this particular case, Berrien County’s outdoor shooting ranges do not have priority over the township ordinances that plaintiffs rely on because they are land uses that are not indispensable to the normal use of the county building. Accordingly, we reverse the decision of the Court of Appeals and remand this case to the circuit court for further proceedings consistent with this decision.
I. FACTS AND PROCEDURE
This case involves a piece of property that is located in Berrien County and Coloma Township. The property consists of a 14-acre parcel of land. The property is controlled by defendant, Berrien County, under a 20-year lease from a party that is unrelated to this case. The county entered into the lease in March 2005. The county leased the property with the intention of using it for a firearms training facility, which various law enforcement agencies would use for training exercises. Accordingly, in May 2005, the county contracted with DLZ Michigan, Inc., to design a master plan and conduct a feasibility study for the proposed facility. This master plan included constructing a building of more than 3,000 square feet at the center of the parcel to serve as a training and support building. This building would have a parking lot with 24 standard parking spaces (and three handicapped spaces), multiple outdoor light poles, and a driveway. The facility would also have numerous outdoor shooting ranges. The ranges were to be set up like the spokes of a wheel that require the shooter to fire out from the center of the parcel. The center of the parcel is where the building would be located. See aerial photograph infra at note 4. The county initially planned on building the ranges first and erecting the building later. During the course of this litigation, construction of both the shooting ranges and the building was started and is now completed.
Operation of the county’s shooting ranges would contravene several local ordinances. First, under the township’s zoning ordinance, the shooting ranges are not a permitted land use given the property’s current zoning status (primary agricultural). Additionally, gun clubs are not permitted in this zoning status unless the Coloma Charter Township Board has issued a special land use permit, which the county has not received. Finally, the gun ranges produce noise levels that purportedly exceed the township’s anti-noise ordinance.
The shooting range facility has been the topic of a hotly contested public debate. Its supporters note that it provides an invaluable public service by simulating real-life conditions that law enforcement officers encounter in the field, preparing them to better serve the citizenry. Further, the supporters argue that indoor shooting ranges are simply inadequate to properly mimic field conditions. Opponents of the shooting ranges raised myriad concerns relating to the proximity of the ranges to other civilian land uses:
(1) Annually, 221,000 rounds will be fired.
(2) Automatic guns, semi-automatic guns, handguns, shotguns, and rifles are used. One type of gun used, the .308 caliber rifle, can fire a bullet 2.4 miles.
(3) The ranges all point outward from the property’s center, toward the surrounding privately owned parcels.
(4) There are children’s sports fields within one mile of the ranges.
(5) The ranges are within 2.4 miles of the Coloma schools and within one mile of over 50 homes.
(6) Seasonally, up to 200 farm workers and their children are within range of the .308 rifle, and four migrant-worker residences are within 1,500 feet.
(7) The sheriff estimates that 25 percent of the training events will be conducted after dark.
(8) Property values within one mile of the range are estimated to have declined by an aggregate of $2.5 million; real estate agents report difficulty selling homes in close proximity to the facility.
Apparently having been persuaded by the local residents’ concerns, in October 2005, the Coloma Charter Township Board voted unanimously not to support the facility. However, in November 2005, the county approved the facility, and construction on it proceeded.
Plaintiffs are a group of individuals who own property-located in close proximity to the shooting ranges. In late November 2005, plaintiffs filed a declaratory judgment action that aimed to stop operation of the facility. The complaint alleged that the county’s facility was prohibited by the township’s zoning ordinance; and the plaintiffs’ amended complaint additionally alleged that the facility violated the township’s anti-noise ordinance. After various circuit court proceedings, the parties filed cross-motions for summary disposition. The trial court, relying on Pittsfield, supra, simultaneously granted the county’s motion for summary disposition and denied plaintiffs’ dispositive motion. Plaintiffs appealed, and the Court of Appeals affirmed in a published, split decision. Herman v Berrien Co, 275 Mich App 382; 739 NW2d 635 (2007). The Court of Appeals majority also relied on Pittsfield, holding that the county is exempt from the township’s regulations because they conflict with its express legislative authorization to site county buildings, which includes the county’s shooting ranges. Id. at 384, 388-389. We granted plaintiffs’ application for leave to appeal. Herman v Berrien Co, 480 Mich 961 (2007).
II. STANDARD OF REVIEW
The case involves interpretation of the CCA. “Questions of statutory interpretation are questions of law, which will be reviewed de novo.” In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999); see also Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
III. ANALYSIS
We are again called on to analyze a purported conflict between the powers given to intermediate government entities and the powers given to local government entities. Specifically, this case involves the relationship between a county’s power, under the CCA, to site county buildings and the powers given to local governments under the TZA and the Township Ordinance Act, MCL 41.181 et seq.
While this particular case includes novel nuances, the broad question is one that we have previously encountered. In Dearden v Detroit, 403 Mich 257; 269 NW2d 139 (1978), we analyzed a conflict between the Michigan Department of Corrections, in its attempts to use a building as a criminal rehabilitation center, and the city of Detroit’s zoning ordinance, which precluded such land use. At that time, we acknowledged that “[n]o Michigan case has resolved, with finality, the question of whether our state or its agencies are inherently immune from local zoning ordinances.” Id. at 262. Yet, we held that “the legislative intent, where it can be discerned, is the test for determining whether a governmental unit is immune from the provisions of local zoning ordinances.” Id. at 264. The holding in Dearden continues to be the appropriate test for these particular conflict cases.
In Northville Charter Twp v Northville Pub Schools, 469 Mich 285; 666 NW2d 213 (2003), we examined whether the authority of the state superintendent of public instruction to control site plans of schools under the Revised School Code (RSC) had priority over the restrictions of a local zoning ordinance. Relying on the rule in Dearden, we held that the state superintendent’s decision to build and operate a school was immune from the local zoning regulations because the Legislature evinced its intent to give the superintendent such priority by stating that the superintendent had “ ‘sole and exclusive jurisdiction over . . . site plans for those school buildings.’ ” Northville, supra at 290, 295, quoting MCL 380.1263(3) (emphasis omitted). The opinion also pointed out that the Legislature need not use the exact phrase “sole and exclusive jurisdiction” to bestow priority; but, when that phrase is used, it signifies a grant of priority. Id. at 291-292. In North-ville, we also wrestled with the scope of priority in defining the RSC’s phrase “site plan.” The plurality opinion held that the phrase extended the priority of the superintendent’s power in locating and operating schools to “everything on the property, i.e., the entire project.” Id. at 292.
Dearden and Northville make it clear that whenever the legal question of priority is presented, it must be resolved by thorough analysis of the statute that purportedly gives the government entity priority over local regulations. In this case, that statute that potentially gives the county priority over the township’s ordinances is the CCA. Thus, following Dearden and Northville, we must analyze the CCA to discern the Legislature’s intent regarding any priority that that act may give to counties. The CCA states in pertinent part:
A county board of commissioners, at a lawfully held meeting, may do 1 or more of the following:
(a) Purchase or lease for a term not to exceed 20 years, real estate necessary for the site of a courthouse, jail, clerk’s office, or other county building in that county.
(b) Determine the site of, remove, or designate a new site for a county building. The exercise of the authority granted by this subdivision is subject to any requirement of law that the building be located at the county seat.
(d) Erect the necessary buildings for jails, clerks’ offices, and other county buildings, and prescribe the time and manner of erecting them. [MCL 46.11.]
This is not the first time we have conducted a priority analysis of the CCA. Indeed, we first applied Dearden’s rule to the CCA in Pittsfield, a case in which a township wanted to stop Washtenaw County from constructing a homeless shelter because the shelter violated the township’s zoning ordinance. We held that under the CCA, the county’s authority to site and erect county buildings superseded the township’s authority under its zoning ordinance. Pittsfield, supra at 710-712. We reasoned that if a county were required to follow local use regulations, the CCA’s grant of power to site and erect county buildings would be effectively “surplusage.” Id. at 713-714. Thus, since Pittsfield, it has become accepted that the CCA gives counties priority over local regulations that inhibit a county’s power to site and erect county buildings under the CCA.
In this case, we are not asked to disturb Pittsfield’s holding; both parties and both lower courts accept Pittsfield as controlling. Yet, Pittsfield does not answer the question presented here because that case did not examine the scope of priority that the CCA gives counties. That scope question is the pivotal issue in this case. In other words, while there is no dispute in this case regarding whether the CCA gives the county priority to site and erect county buildings, there is a dispute regarding whether that priority extends to the county’s land uses — the shooting ranges — that are ancillary to its buildings. In that regard, the Court of Appeals majority correctly noted that the true issue is the definition of the GCA’s term “site.” Indeed, it is this definitional analysis that will answer the true question in this case: When a county erects a building pursuant to its authority under the CCA, what land uses, if any, are encompassed in the definition of “site” such that they also have priority over local regulations? Thus, as that question applies to this case, if building the outdoor shooting ranges is included in the county’s power to “site” buildings, those land uses will have priority over the township’s ordinance; whereas, if they are not included in the definition of “site,” they will not have priority.
On that issue, the Court of Appeals stated:
“Site” is not defined in the statute, so resorting to a dictionary is necessary to determine the ordinary meaning of the word. Northville [supra at 292]. In Northville ... the Supreme Court looked to the dictionary to define “site” when determining the meaning of “site plan” under the [RSC]:
“This leaves to be determined the definition of ‘site plan.’ The dictionary defines ‘site’ as ‘The place where something was, is, or is to be located,’ The American Heritage Dictionary of the English Language (1982), or similarly, ‘[T]he area or exact plot of ground on which anything is, has been, or is to be located...' Random, House Webster’s College Dictionary (1997). [Id.]”
Using these same definitions, it is clear that when designating a new “site” for county buildings, the “site” includes the entire area of ground on which the building is to be located. In other words, it is the “site” or, in real terms, the entire parcel where the buildings will be located, that is not subject to local regulation. Hence, the uses on the site of the building are not subject to the township’s ordinances. Pittsfield Twp, supra at 711. [Herman, supra, 275 Mich App at 386-387.]
The Court of Appeals used this analysis to hold that the county’s shooting ranges had priority over the township’s ordinances. We disagree with this conclusion and therefore reverse.
Initially, we note that the definition of “site” from Northville is not controlling because it derives from a different priority-giving statute. Northville involved the RSC, while the present case involves the CCA. In comparing these two statutes, it is clear that they serve different purposes and, accordingly, bestow different powers on their respective government entities.
The RSC gives the superintendent “sole and exclusive jurisdiction over the review and approval of plans and specifications for the construction, reconstruction, or remodeling of school buildings used for instructional or noninstructional school purposes and... of site plans for those school buildings.” MCL 380.1263(3) (emphasis added). Hence, the RSC gives the superintendent unlimited authority over the entire site plan of school buildings. Also notably, the RSC defines one such building very broadly: “[a]s used in this section: ‘High school building’ means any structure or facility that is used for instructional purposes, that offers at least 1 of grades 9 to 12, and that includes an athletic field or facility.” MCL 380.1263(8)(a).
In contrast, the CCA gives counties the power to “[determine the site of, remove, or designate a new site for a county building,” and to “[e]rect the necessary buildings for jails, clerks’ offices, and other county buildings....” MCL 46.11(b) and (d) (emphasis added). Thus, a county’s power under the CCA is limited to the siting of county buildings, which does not equate to the power to review and approve site plans. Further, that power is limited because it does not apply when that particular county building is required by law to “be located at the county seat.” MCL 46.11(b).
In sum, the RSC gives nearly unlimited power (“sole and exclusive”) regarding entire site plans of schools, whereas the CCA gives a power that is limited in certain circumstances and only applies to siting county buildings. Accordingly, the CCA’s limited term “site” does not carry the same meaning as the RSC’s expansive phrase “site plan.” Thus, the Court of Appeals incorrectly relied on Northville, which dealt with the RSC, to equate “site plan” with “site” as used in the CCA.
However, simply noting that Northville does not adequately define “site” under the CCA does not complete our analysis. We must still give meaning to that term by adopting a test that determines whether and which land uses are encompassed in its definition. On that score, the County proffers that “site” applies to any use of land that is reasonably connected to the county building thereon. Plaintiffs do not suggest an alternative test. Instead they rely on the CCA’s limited grant of authority to site buildings, which, it argues, omits the power to site ancillary land uses. Neither party is wholly correct.
In this analysis, we are mindful of Dearden’s overarching maxim: “legislative intent, where it can be discerned, is the test for determining whether a governmental unit is immune from the provisions of local zoning ordinances.” Dearden, supra at 264. We also note that, in statutory interpretation, if the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). Also, “[a]s far as possible, effect should be given 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 NW2d 119 (1999) (internal citations omitted). Finally, in defining particular words in statutes, we must “consider both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” Id., quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995).
The CCA is an unambiguous statute. In pertinent part, it gives counties the power to “[djetermine the site of, remove, or designate a new site for a county building” and to “[ejrect the necessary buildings for jails, clerks’ offices, and other county buildings ....” MCL 46.11(b) and (d). A plain reading of this language leads to the conclusion that the Legislature intended to give counties the power to “site” and “erect” “county buildings.” Each time the CCA grants the power to site, it invariably relates that power to “buildings.” Notably, the Legislature never semantically links the power to site with any nonbuilding activity or land use. In other words, the CCA does not give counties the power to site a county “activity” or county “land use”; rather, it always relates its grant of siting power to “buildings.” This leads to the conclusion that the siting power is limited to buildings. This conclusion is supported by the contextually derived purpose of the CCA. The CCA was expressly promulgated “to define the powers and duties of the county boards of commissioners....” Title of 1851 PA 156, as amended by 1978 PA 51. Accordingly, in § 11, the act clearly and descriptively articulates the numerous powers it gives to counties. The power to site county activities or land uses is conspicuously absent from that list. Also, the CCA’s continued use of the term “building(s)” must have significance. That term would be rendered nugatory if the CCA’s power to “site” was meant to extend to other county acts, such as siting land uses, because those other acts are never listed in the CCA. In essence, if those unlisted acts were actually included in the power to site buildings, then the CCA’s express inclusion of the power to site buildings would be superfluous. This cannot be. Therefore, the CCA’s continued use of the term “building(s)” must place significant limitations on the meaning of the act’s term “site” by omitting the power to do other acts.
However, we are mindful that the power to site a building is worthless if the entity that sites the building cannot make normal use of the building. Just as Pitts-field recognized that the power to site a building would be “mere surplusage” if the siting entity had to comply with zoning ordinances, Pittsfield, supra at 713, we too acknowledge that the power to site a building would be meaningless if the siting entity could not conduct ancillary land uses in order to make normal use of the building. For instance, the normal use of most county buildings would require sidewalks, parking lots, and light poles. Thus, while defining the power to “site” as being limited to buildings, we simultaneously accept that some ancillary land uses must be included in the county’s siting power.
Next, we must articulate a standard to test whether a particular ancillary land use is encompassed in the use of the building such that it is given priority under the CCA. To answer that question, a court must ask whether the ancillary land use is indispensable to the building’s normal use. “The TZA vests townships with broad authority to enact zoning ordinances to regulate land development and to ‘insure that the use of land shall be situated in appropriate locations and relationships ....’” Pittsfield, supra at 707-708, quoting MCL 125.271(1). As stated, the priority given to the county in MCL 46.11(b) and (d) is significantly limited to siting a building. Because the county’s authority is limited, the encroachment on a township’s broad authority must be limited to that needed to effect the purpose of §§ 11(b) and (d). Thus, we hold that the scope of the CCA’s priority over the TZA is limited to ancillary land uses that are indispensable to the building’s normal use. Accordingly, the ancillary land use will only have priority over local regulations if it is indispensable to the building’s normal use. This standard will invariably require a case-by-case analysis in future applications.
Turning to the present case, the ancillary land use in question is the outdoor shooting ranges on the county’s leased property. Using the “indispensable” test, we must decide if that ancillary land use has priority over the township’s zoning and anti-noise ordinances. In order to decide if this ancillary land use is indispensable to the normal use of the county’s building, we must define the normal use of the county’s building. The county’s building is located in a complex that is called the “Berrien County Sheriffs Department Firearms Training Facility.” The county’s feasibility study for the facility describes the purpose of the building as being “for training and support.” Thus, the building’s nor mal use is for firearms training and support. More specifically, the building’s normal use is for conducting classroom firearms training. While it may be true that this normal use works in concert with, or aids, the broader purpose of total firearms training, which includes using outdoor shooting ranges, the normal use of the building is to conduct classroom (or indoor) training, which is different from the outdoor firearms training that occurs in the shooting ranges. This distinction is of great import when recalling that the CCA’s grant of power hinges on siting and erecting “buildings.” In other words, a county may not expand a building’s normal use simply because that building’s use aids or complements another distinct use. For purposes of CCA priority, a building’s normal use only extends to the actual uses of that particular building because, again, that is the extent of the power granted to the county by the CCA. Therefore, despite the county’s use of the building to support the broad arena of firearms training, which conceivably includes the outdoor shooting ranges, the building’s normal use is limited to conducting indoor “training and support.” In other words, the normal use of the outdoor shooting ranges is for outdoor shooting practice and training, while the normal use of the building is for indoor classroom training and practice, despite both uses falling under the broad category of firearms training.
Accordingly, the final question is whether the outdoor shooting ranges are indispensable for the building’s indoor training and support. We hold that they are not indispensable because the indoor training and sup port can be conducted without the outdoor shooting ranges being located next to the building. Therefore, under the CCA, the shooting ranges are not given priority over the township’s ordinances.
IV CONCLUSION
The county’s shooting ranges do not have priority over the township’s ordinances because those local regulations do not conflict with the county’s powers under the CCA; as they apply to the shooting ranges, the regulations do not stop the county from exercising its limited power to site buildings. However, the county building, its parking lot, its driveway, and its lighting poles do have priority over the local regulations because they are indispensable to the normal use of the building.
Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the circuit court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Taylor, C.J., and Weaver, Kelly, Corrigan, Young, and MARKMAN, JJ., concurred with CAVANAGH, J.
MCL 46.1 et seq.
MCL 125.271 et seq. The TZA has since been replaced with the Michigan Zoning Enabling Act (MZEA) MCL 125.3101 et seq., but that new act expressly provides that all claims, such as the one at bar, that were pending when the Legislature replaced the TZA with the MZEA are subject to the TZA.
The feasibility study’s executive summary contains the following description of the project:
The Master Plan ... will he implemented in two phases. Phase One involves the development of the practice facility itself.... A new building for training and support will he established later as funding becomes available. ... DLZ also analyzed the cost of and benefits of constructing an indoor range. A single indoor range would cost an estimated $1.3 million to construct [compared to the $591,556 for the outdoor range] and would not eliminate the need for an outdoor firing range(s).
At oral argument, the county argued that the building was actually erected before the shooting ranges were constructed. We have found no support for this contention or the opposite contention. Nonetheless, the sequence of construction is not dispositive to our analysis. However, it is worth noting that the initial plans for the facility clearly indicate that the shooting ranges were the first and most prominent aspect of the facility to be constructed.
The parties have not litigated the merits of whether the shooting ranges violate the anti-noise ordinance because, up to this point, the main dispute hinged on whether the shooting ranges were immune from this ordinance. Nonetheless, the county’s own feasibility study predicted that the gun range would produce noise levels above 87 decibels extend ing to approximately 370 of the surrounding acres. This apparently violates the anti-noise ordinance, which prohibits noise levels above 65 decibels between 7:00 a.m. and 10:00 p.m. and 55 decibels at all other times.
The relevant anti-noise ordinance was promulgated by Coloma Township pursuant to the Township Ordinance Act, § 1, which gives local governments the power to “adopt ordinances regulating the public health, safety, and general welfare of persons and property____” MCL 41.181(1).
In Dearden, we held that the Department of Corrections’ rehabilitation house was immune from Detroit’s zoning ordinance because the Legislature had evidenced its intent to that effect in MCL 791.204 by giving the Department of Corrections “ ‘exclusive jurisdiction over ... penal institutions’ ” and by making that act “ ‘repeal all acts and parts of acts inconsistent with the provisions of this act.’ ” Id. at 265-266, quoting MCL 791.204 (emphasis in original).
MCL 380.1 et seq.
This subsection, in pertinent part, states:
The superintendent of public instruction has sole and exclusive jurisdiction over the review and approval of plans and specifications for the construction, reconstruction, or remodeling of school buildings used for instructional or noninstruetional school purposes and, subject to subsection (4), of site plans for those school buildings. [MCL 380.1263(3).]
I concurred and wrote separately to note that the phrase “site plan” should be defined as a legal term of art that involves a broader meaning than simply “ ‘what goes on within the site itself,’ ” as the plurality phrased it. Northville, supra at 299. However, my disagreement with the plurality opinion on that issue is not dispositive in the instant case because, under either definition of “site plan,” priority applied to more than simply erecting a school building. Indeed, even under the plurality opinion’s narrower definition, “site plan” applied to any land use on the property, which is dispositive in this case as it relates to the distinction between “site plan,” as used in the RSC, and “site,” as used in the CCA. See infra.
In this context, the term “priority” is legally synonymous with the term “immunity,” because if a government entity has priority over local regulations, it may also be described as being immune from local regulations. This comports with the semantics of traditional preemption analyses, which these confliet-of-laws cases involve.
The Court of Appeals and both parties include Burt Twp v Dep’t of Natural Resources, 459 Mich 659; 593 NW2d 534 (1999), in their analyses of the priority issue because that case dealt with whether a statute gave the Department of Natural Resources priority over a local zoning ordinance. However, we find Burt distinguishable from the instant “priority” analysis for several reasons. First, Burt is only helpful regarding the general precepts of the priority analysis because it was applying a different power-granting statute, and it did not expand on the general guidance Dearden had already given. Second, any general aid to the priority analysis that Burt may have given is inapplicable because, since Burt, Pittsfield has decided the instant priority question of the CCA versus local regulations. Finally, Burt simply did not evaluate the scope of any statutory priority, which is the pivotal issue here.
While Pittsfield’s holding may have been interpreted as only applying to the CCA’s priority over local zoning restrictions, today we extend that holding to include the uncontroversial notion that the CCA grants counties similar priority over any local ordinance that would apply to restrict the county’s power to site and erect county buildings in the same fashion that the zoning ordinance inhibited the homeless shelter in Pittsfield.
In fact, the CCA expressly includes examples that uniquely fit into the category of buildings: courthouses, jails, clerks’ offices, and other county buildings.
In addition to the siting power, the CCA also gives counties the power, among other things, to: “[p]urchase or lease... real estate,” “[bjorrow or raise by tax upon the county those funds authorized by law,” “[establish rules consistent with the open meetings act,” and “[g]rant or loan funds to a nonprofit corporation organized for the purpose of providing loans for private sector economic development initiatives.” MCL 46.11 (a), (e), (p), and (r).
In light of the array of disparate powers enumerated in the CCA, the Legislature surely could have, for instance, granted counties the power to site land uses, such as landfills, reservoirs, beaches, parks, or other county land uses. But it chose not to.
See Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992) (when interpreting a statute, no word should be treated as surplusage or rendered nugatory if at all possible).
In adopting this standard, we are reminded of, and guided by, the venerable holding in McCulloch v Maryland, 17 US (4 Wheat) 316; 4 L Ed 579 (1819), in which the United States Supreme Court dealt with a similar issue regarding the scope of a government’s power when its granting authority leaves that question unanswered. The Court stated:
Congress is not empowered by it to make all laws, which may have relation to the powers confered on the government, but such only as may be “necessary and proper” for carrying them into execution. The word “necessary” is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory. [Id. at 413.]
While the CCA does not contain the exact phrase “necessary and proper,” we find the present issue strikingly similar. The CCA has given power to this state’s counties, and that power must be useable, yet limited. Thus, with no statutory direction in that regard, we find the McCulloch Court’s resolution of its similar dilemma compelling.
Both parties have accepted the factual assertions of this study. In fact, the county proffered an affidavit of the chairman of the Berrien County Board of Commissioners, in which the chairman expressly adopts the study’s findings. The county also presented the affidavit of a county undersheriff, who stated that “[t]he training facility building will function as a classroom. This is because virtually all firearms training begins in a classroom setting.” | [
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MARKMAN, J.
At issue here is whether convicting and sentencing a defendant for both first-degree felony murder and the predicate felony violates the “multiple punishments” strand of the Double Jeopardy Clause of the United States and Michigan constitutions. Following a jury trial, defendant was convicted and sentenced for first-degree felony murder and first-degree criminal sexual conduct, where the latter constituted the predicate felony for the former. The Court of Appeals affirmed defendant’s first-degree felony-murder conviction and sentence, but vacated defendant’s first-degree criminal sexual conduct conviction and sentence on double-jeopardy grounds. We conclude that convicting and sentencing a defendant for both felony murder and the predicate felony does not necessarily violate the “multiple punishments” strand of the Double Jeopardy Clause, and, thus, we overrule People v Wilder, 411 Mich 328, 342; 308 NW2d 112 (1981). Because each of the offenses for which defendant was convicted has an element that the other does not, they are not the “same offense” and, therefore, defendant may be punished for both. Accordingly, we reverse the part of the Court of Appeals judgment that vacated defendant’s first-degree criminal sexual conduct conviction and sentence, and we reinstate them. In addition, defendant’s application for leave to appeal the 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.
I. FACTS AND PROCEDURAL HISTORY
Defendant forced his 92-year-old neighbor into her bedroom, stripped her of her clothing, and killed her by stabbing her in the abdomen and genital area 23 times with a kitchen knife. Following a jury trial, defendant was convicted and sentenced for first-degree felony murder and first-degree criminal sexual conduct, where the latter was the predicate felony for the felony-murder conviction. The Court of Appeals affirmed defendant’s felony-murder conviction and sentence, but vacated the criminal sexual conduct conviction and sentence on double-jeopardy grounds. Unpublished opinion per curiam, issued July 31, 2007 (Docket No. 268266). Both the prosecutor and defendant filed applications for leave to appeal in this Court. We heard oral argument on whether to grant the prosecutor’s application or take other peremptory action permitted by MCR 7.302(G)(1). 480 Mich 935 (2007).
II. STANDARD OF REVIEW
A double-jeopardy challenge presents a question of constitutional law that this Court reviews de novo. People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004).
III. ANALYSIS
Const 1963, art 1, § 15 states, “No person shall be subject for the same offense to be twice put in jeopardy.” The provision affords individuals “three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” Nutt, 469 Mich at 574. The first two protections comprise the “successive prosecutions” strand of double jeopardy, id. at 575, while the third protection comprises the “multiple punishments” strand. People v Smith, 478 Mich 292, 299; 733 NW2d 351 (2007).
In Nutt, 469 Mich at 576, a case involving the “successive prosecutions” strand, this Court explained that “[application of the same-elements test, commonly known as the ‘Blockburger test,’[ ] is the well-established method of defining the Fifth Amendment term ‘same offence.’ ” This test “ ‘focuses on the statutory elements of the offense.’ ” Id. (citation omitted). “ ‘If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.’ ” Id. (citation omitted). “In sum, offenses do not constitute the ‘same offense’ for purposes of the ‘successive prosecutions’ strand of double jeopardy if each offense requires proof of a fact that the other does not.” Smith, 478 Mich at 304.
In Smith, 478 Mich at 316, this Court further explained that the “the ratifiers intended that the term ‘same offense’ be given the same meaning in the context of the ‘multiple punishments’ strand of double jeopardy that it has been given with respect to the ‘successive prosecutions’ strand.” Therefore, multiple punishments are authorized if “ ‘ “each statute requires proof of an additional fact which the other does not Id. at 307, quoting Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932) (citation omitted).
In Wilder, 411 Mich at 342, this Court held that convicting and sentencing a defendant for both first-degree felony murder and the predicate felony violates the “multiple punishments” strand of the Double Jeopardy Clause. However, Wilder did not apply Blockburger’s same-elements test. Instead, the Court held that “[w]here the proof adduced at trial indicates that one offense is a necessarily or cognate lesser included offense of the other, then conviction of both the offenses will be precluded.” Id. at 343-344. The Court then concluded that because the predicate felony is a “necessary element of every prosecution for first-degree felony murder,” convicting and sentencing a defendant for both the felony murder and the predicate felony will always violate the Double Jeopardy Clause. Id. at 345. The Court proceeded to explain that “the fact that the elements of first-degree felony murder do not in every instance require or include the elements of armed robbery [the predicate felony in Wilder] does not mean the offense of armed robbery is not necessarily included in the felony murder here.” Id. at 345. “Though theoretically arguable, such a position is irrelevant when the legal analysis depends not upon the theoretical elements of the offense but upon proof of facts actually adduced.” Id. at 345-346.
However, this approach, as Wilder itself recognized, is inconsistent with Blockburger-.
[T]he test concerning multiple punishment under our constitution has developed into a broader protective rule than that employed in the Federal courts. Under Federal authority, the Supreme Court established the “required evidence” test enunciated in Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932). See also its original expression in Morey v Commonwealth, 108 Mass 433 (1871). In Blockburger, the Court outlined their test:
“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 US [at] 304.
This approach isolates the elements of the offense as opposed to the actual proof of facts adduced at trial. See Harris v United States, 359 US 19, 23; 79 S Ct 560; 3 L Ed 2d 597 (1959); United States v Kramer, 289 F2d 909, 913 (CA 2, 1961). Under this test, convictions of two criminal offenses arising from the same act are prohibited only when the greater offense necessarily includes all elements of the lesser offense. Accordingly, conviction of both offenses is precluded only where it is impossible to commit the greater offense without first having committed the lesser offense. From the perspective of lesser included offenses, the Supreme Court in cases concerning double jeopardy has thus adhered to the common-law definition of such offenses. See People v Ora Jones, [395 Mich 379,] 387[; 236 NW2d 461 (1975)].
The Federal test in Blockburger can thus be distinguished from this Court’s approach in two principal ways. First, we find the proper focus of double jeopardy inquiry in this area to he the proof of facts adduced at trial rather than the theoretical elements of the offense alone. Proof of facts includes the elements of the offense as an object of proof. Yet, the actual evidence presented may also determine the propriety of finding a double jeopardy violation in any particular case. See People v Martin, [398 Mich 303,] 309[; 247 NW2d 303 (1976)]; People v Stewart, [400 Mich 540,] 548[; 256 NW2d 31 (1977)]; People v Jankowski, [408 Mich 79,] 91[; 289 NW2d 674 (1980)].
Second, we have held that double jeopardy claims under our constitution may prohibit multiple convictions involving cognate as well as necessarily included offenses. People v Jankowski, [408 Mich at] 91. [Wilder, 411 Mich at 348-349 n 10.[ ]
Shortly after Wilder was decided, it was called into question by this Court’s decision in People v Robideau, 419 Mich 458; 355 NW2d 592 (1984). Like the Court in Wilder, the Court in Robideau rejected the Blockburger test; however, it also rejected the Wilder test. In place of these tests, the Robideau Court, 419 Mich at 487, set forth “general principles” to be used to ascertain whether the Legislature intended to impose multiple punishments, such as “[w]here two statutes prohibit violations of the same social norm, albeit in a somewhat different manner, as a general principle it can be concluded that the Legislature did not intend multiple punishments.” In addition, “[w]here one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes.” Id.
Robideau criticized Wilder for “applying] a method of analysis taken from successive-prosecution cases [to a “multiple punishments” case] . .. and look[ing] to the facts of the case.” Robideau, 419 Mich at 482. The Court explained:
[P]rior decisions of this Court [such as Wilder] have applied a factual test in single-trial multiple-punishment cases, creating areas in which arguably the Legislature cannot now act. To the extent that those decisions interpret the prohibition against double jeopardy as a substantive limitation on the Legislature, we now disavow them. [Id. at 485.]
Therefore, Robideau appeared to overrule Wilder.
Even assuming that Robideau did not expressly overrule Wilder, it did so implicitly. Robideau concluded that the Double Jeopardy Clause does not prohibit multiple punishments for convictions and sentences of both first-degree criminal sexual conduct, MCL 750.520b(l)(c) (penetration under circumstances involving any “other felony”), and the underlying “other felony” used to prove the first-degree criminal sexual conduct. That is, Robideau held that convicting and sentencing a defendant for both first-degree criminal sexual conduct and the predicate “other” felony does not violate the “multiple punishments” strand of the Double Jeopardy Clause. This conclusion is, of course, wholly at odds with Wilder’s conclusion that convicting and sentencing a defendant for both felony murder and the predicate felony violates the “multiple punishments” strand. Therefore, Robideau, if not expressly, at least implicitly, overruled Wilder.
This Court’s recent decision in Smith, overruling Robideau, also called Wilder into question. In Smith, 478 Mich at 318-319, we concluded that convicting and sentencing a defendant for both first-degree felony murder (where the predicate felony was larceny) and the non-predicate felony of armed robbery does not violate the “multiple punishments” strand. We explained that Robideau was predicated on two propositions: “(1) Michigan’s Double Jeopardy Clause afforded greater protections than the Double Jeopardy Clause of the United States Constitution, Wilder, [411 Mich] at 348 n 10; and (2) the Blockburger test did not account for Michigan’s then-current recognition of ‘cognate’ lesser included offenses as ‘lesser offenses’ under a fact-driven analysis.” Smith, 478 Mich at 314. Wilder was also based upon these propositions. However, as we explained in Smith, 478 Mich at 314-315:
This conclusion that the Michigan Constitution affords greater protection than the Fifth Amendment has no basis in the language of Const 1963, art 1, § 15, the common understanding of that language by the ratifiers, or under Michigan caselaw as it existed at the time of ratification. Further, the concern expressed by the Court that Block-burger does not account for cognate lesser included offenses is no longer pertinent in light of People v Cornell, 466 Mich 335, 353; 646 NW2d 127 (2002).
In addition, as discussed earlier, both Wilder and Robideau rejected the Blockburger test for purposes of the “multiple punishments” strand. However, in Nutt, 469 Mich at 591-592, this Court re-adopted the Block-burger test for purposes of the “successive prosecutions” strand of double jeopardy. And, in Smith, 478 Mich at 314-315, we concluded that there is no reason to apply a different test to the “multiple punishments” strand of double jeopardy:
[NJothing in the language of the constitution indicates that the ratifiers intended to give the term “same offense” a different meaning in the context of the “multiple punishments” strand of double jeopardy than it has in the context of the “successive prosecutions” strand. In the absence of any evidence that the term “same offense” was intended by the ratifiers to include criminal offenses that do not share the same elements, we feel compelled to overrule Robideau and preceding decisions that are predicated on the same error of law, and to hold instead that Blockburger sets forth the appropriate test to determine whether multiple punishments are barred by Const 1963, art 1, § 15.[ ]
Finally, Wilder was also based on the proposition that it is the facts of the case rather than the abstract legal elements that are determinative with regard to a double-jeopardy challenge. However, as the Court in Wilder, 411 Mich at 349 n 10, acknowledged, the Block-burger test focuses on the abstract legal elements. Blockburger, 284 US at 304 (concluding that there was no double-jeopardy violation because “upon the face of the statute, two distinct offenses are created”) (emphasis added). That is, “ ‘[i]n applying the Blockburger rule, the United States Supreme Court has focused on the legal elements of the respective offenses, not on the particular factual occurrence which gives rise to the charges.’ ” Smith, 478 Mich at 309, quoting Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich 374, 395; 280 NW2d 793 (1979).
In Iannelli v United States, 420 US 770, 785 n 17; 95 S Ct 1284; 43 L Ed 2d 616 (1975), the Court held that “the [.Blockburger] test focuses on the statutory elements of the offense.” However, in Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), a “terse per curiam,” United States v Dixon, 509 US 688, 698; 113 S Ct 2849; 125 L Ed 2d 556 (1993), that did not even mention Blockburger, the Court held that a subsequent prosecution for robbery with a firearm was barred by the “successive prosecutions” strand because the defendant had already been convicted of felony murder based on the robbery with a firearm. Subsequently, in Whalen v United States, 445 US 684, 694; 100 S Ct 1432; 63 L Ed 2d 715 (1980), expanding on Harris, the Court held that convicting and sentencing a defendant for both first-degree felony murder and rape, where the rape was the predicate felony, violated the “multiple punishments” strand because “proof of rape is a necessary element of proof of the felony murder.” In Albernaz v United States, 450 US 333, 338; 101 S Ct 1137; 67 L Ed 2d 275 (1981), quoting Iannelli, 420 US at 785 n 17, the Court again held that “ ‘the [.Blockburger] test focuses on the statutory elements of the offense.’ ” However, in Grady v Corbin, 495 US 508, 520; 110 S Ct 2084; 109 L Ed 2d 548 (1990), the Court, relying on Harris for the proposition that “a strict application of the Blockburger test is not the exclusive means of determining whether a subsequent prosecution violates the Double Jeopardy Clause” because Block-burger only requires “a technical comparison of the elements of the two offenses,” expressly adopted the “same conduct” test that was used in Harris and Whalen — a test that is directly at odds with the notion that the focus is on the statutory elements. However, the “same conduct” test was explicitly abandoned in Dixon, 509 US at 704. Therefore, the Blockburger test once again is the controlling test for addressing double-jeopardy challenges, and “ ‘the [Blockburger] test focuses on the statutory elements of the offense.’ ” Albernaz, 450 US at 338, quoting Iannelli, 420 US at 785 n 17. See Robideau, 419 Mich at 475-478, which rejected Harris and Whalen even before Dixon was decided, relying on Albernaz.
Further, we must not lose sight of the fact that the Blockburger test is a tool to be used to ascertain legislative intent. Missouri v Hunter, 459 US 359, 368; 103 S Ct 673; 74 L Ed 2d 535 (1983). Because the statutory elements, not the particular facts of the case, are indicative of legislative intent, the focus must be on these statutory elements.
Moreover, as we explained in Nutt, 469 Mich at 590, in adopting Const 1963, art 1, § 15, the ratifiers of our constitution intended our double-jeopardy provision to be construed consistently with the interpretation given to the Fifth Amendment by federal courts at the time of ratification. And, at the time of the ratification, federal courts had adopted the abstract legal elements test of Blockburger. Blockburger, 284 US at 304 (concluding that there was no double-jeopardy violation because “upon the face of the statute, two distinct offenses are created”) (emphasis added); Harris v United States, 359 US 19, 23; 79 S Ct 560; 3 L Ed 2d 597 (1959) (concluding that there was no double-jeopardy violation because “the violation, as distinguished from the direct evidence offered to prove that violation, was distinctly different under each of the respective statutes”) (emphasis omitted).
Finally, we note that a majority of the states focus on the abstract legal elements. Hoffheimer, The rise and fall of lesser included offenses, 36 Rutgers L J 351, 413-414 (2005); see, e.g., Montana v Close, 191 Mont 229, 247; 623 P2d 940 (1981) (holding that convicting and sentencing a defendant for both first-degree felony-murder and the predicate felony does not violate the “multiple punishments” strand).
For these reasons, we conclude that convicting and sentencing a defendant for both first-degree felony murder and the predicate felony does not violate the “multiple punishments” strand of the Double Jeopardy Clause if each offense has an element that the other does not.
In deciding whether to overrule precedent, we consider “(a) whether the earlier decision was wrongly decided, and (b) whether overruling such decision would work an undue hardship because of reliance interests or expectations that have arisen.” Robertson v DaimlerChrysler Corp, 465 Mich 732, 757; 641 NW2d 567 (2002). With regard to the first inquiry, we believe, as we have already discussed, that Wilder was wrongly decided because it is inconsistent with the common understanding of “same offense.” With regard to the second inquiry, we must examine “whether the previous decision has become so embedded, so accepted, so fundamental, to everyone’s expectations that to change it would produce not just readjustments, but practical real-world dislocations.” Robinson v Detroit, 462 Mich 439, 466; 613 NW2d 307 (2000). “[T]o have reliancet,] the knowledge must be of the sort that causes a person or entity to attempt to conform his conduct to a certain norm before the triggering event.” Id. at 467. Overruling Wilder will disrupt no reliance interests because no person could conceivably have relied on that decision to his or her detriment. That is, we cannot conceive that anyone has committed a first-degree felony murder on the basis that, under Wilder, he or she could only be punished for the first-degree felony murder and not also the predicate felony. Finally, failing to overrule Wilder would produce inconsistent rules regarding the meaning of the language “same offense” in Const 1963, art 1, § 15. For these reasons, assuming that there is still life left in Wilder, we expressly overrule Wilder.
In the instant case, defendant was convicted of both first-degree felony murder and first-degree criminal sexual conduct, where the latter constituted the predicate felony for the felony-murder conviction. The killing of a human being is one of the elements of first-degree felony murder. MCL 750.316(1)03); People v Carines, 460 Mich 750, 758-759; 597 NW2d 130 (1999) (citation omitted). Sexual penetration is one of the elements of first-degree criminal sexual conduct. MCL 750.520b(l). First-degree felony murder contains an element not included in first-degree criminal sexual conduct, namely, the killing of a human being. Similarly, first-degree criminal sexual conduct contains an element not necessarily included in first-degree felony murder, namely, a sexual penetration. First-degree felony murder does not necessarily require proof of a sexual penetration because first-degree felony murder can be committed without also committing first-degree criminal sexual conduct. First-degree felony murder is the killing of a human being with malice “ ‘while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in [MCL 750.316(l)(b)].’ ” Carines, 460 Mich at 758-759 (emphasis added; citation omitted). Therefore, unlike first-degree criminal sexual conduct, first-degree felony murder does not necessarily require proof of a sexual penetration. That is, “[i]t is Gpossible to commit the greater offense [first-degree felony murder] without first committing the lesser offense [first-degree criminal sexual conduct].” Cornell, 466 Mich at 361. Because first-degree felony murder and first-degree criminal sexual conduct each contains an element that the other does not, we conclude that these offenses are not the “same offenses” under either the Fifth Amendment or Const 1963, art 1, § 15, and, therefore, defendant may be punished separately for each offense.
IV CONCLUSION
We conclude that convicting and sentencing a defendant for both first-degree felony murder and the predicate felony does not necessarily violate the “multiple punishments” strand of the Double Jeopardy Clause, and, thus, we overrule Wilder. Because each of the offenses for which defendant was convicted, felony murder and first-degree criminal sexual conduct, contains an element that the other does not, they are not the “same offense” and, therefore, defendant may be punished for both. Accordingly, we reverse the part of the Court of Appeals judgment that vacated defendant’s first-degree criminal sexual conduct conviction and sentence, and we reinstate defendant’s first-degree criminal sexual conduct conviction and sentence. In addition, defendant’s application for leave to appeal the 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.
Taylor, C.J., and Weaver, Corrigan, and Young, JJ., concurred with MARKMAN, J.
Similarly, US Const, Am V states, “No person shall... be subject for the same offence to be twice put in jeopardy of life or limb ....” This Court has explained that although we are not “ ‘bound in our understanding of the Michigan Constitution by any particular interpretation of the United States Constitution,’ ” “we have been persuaded in the past that interpretations of the Double Jeopardy Clause of the Fifth Amendment have accurately conveyed the meaning of Const 1963, art 1, § 15 as well.” People v Smith, 478 Mich 292, 302 n 7; 733 NW2d 351 (2007), quoting Harvey v Michigan, 469 Mich 1, 6 n 3; 664 NW2d 767 (2003).
Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932).
However, if “the legislature expressed a clear intention that multiple punishments be imposed,” “ ‘ “imposition of such sentences does not violate the Constitution,” ’ regardless of whether the offenses share the ‘same elements.’ ” Smith, 478 Mich at 316, quoting Missouri v Hunter, 459 US 359, 368; 103 S Ct 673; 74 L Ed 2d 535 (1983) (citation and emphasis omitted).
We are perplexed by Justice CAVANAGH’s criticism that we “misapplfy] the Blockburger test,” post at 244 , while at the same time asserting that he would “retain Wilder’s approach of relying ‘not upon the theoretical elements of the offense but upon proof of facts actually adduced’ in determining whether multiple convictions are permitted under the Double Jeopardy Clause,”post at 251, quoting Wilder, 411 Mich at 346. In Wilder, the Court itself acknowledged that its decision was inconsistent with Blockburger because Blockburger looked to the abstract legal elements of the offenses, rather than to the specific facts alleged in a particular case. Wilder, 411 Mich at 348-349 n 10.
We are similarly perplexed by Justice Kelly’s contention that Wilder is consistent with federal authority, post at 257, when Wilder itself stated that “the test concerning multiple punishment under our constitution has developed into a broader protective rule than that employed in the Federal courts.” Wilder, 411 Mich at 348 n 10. Although Wilder stated, “The decision we reach in this case is fundamentally consistent with existing authority of the United States Supreme Court,” it immediately proceeded to explain the differences between its decision and federal decisions, which differences go to the very heart of the question that is at issue here. Wilder, 411 Mich at 348-349.
Justice Kelly states that Robideau “noted that Wilder’s analysis did not expressly turn on legislative intent” and then accuses us of “stretch-ting] this criticism to argue that Robideau impliedly overruled Wilder.” Post at 261. However, as already discussed, and as any reader of Robideau can plainly see, this decision clearly said more about Wilder than Justice Kelly acknowledges. She further states that “Robideau emphasized that application of its principles to earlier double jeopardy decisions of this Court was unlikely to yield different results.” Post at 261. However, Robideau’s principles led to a different result in that very case as compared to the result reached in Wilder. See n 6 infra.
In light of this, we have no idea how Justice Kelly can argue that the result reached in Wilder is “consistent with the result dictated by Robideau.” Post at 255, 262, 264, 265. In Wilder, the Court held that convicting and sentencing a defendant for both first-degree felony murder and the predicate felony violates double jeopardy. In Robideau, the Court held that convicting and sentencing a defendant for both first-degree criminal sexual conduct and the predicate felony does not violate double jeopardy. These decisions are not at all consistent and, contrary to Justice Kelly’s contention, post at 264-265 n 41, the differences in sentences applicable to those offenses do not render these decisions consistent.
It is noteworthy that Justice Cavanagh does not refer at all to Robideau. It has slipped down a memory hole.
In her dissent, Justice Kelly restates a significant portion of her dissent in Smith. Rather than restating our response, we simply refer the reader to it. Smith, 478 Mich at 319-323.
In Cornell, we held that an offense is an “offense inferior to that charged in the indictment” for purposes of MCL 768.32(1) when “ ‘the lesser offense can he proved by the same facts that are used to establish the charged offense.’ ” Cornell, supra at 354 (citation omitted). In other words, an offense is the “same offense” for purposes of jury instructions if conviction of the greater offense necessarily requires conviction of the lesser offense.[ ]
In Cornell, 466 Mich at 355, this Court held that MCL 768.32 “foreclosed consideration of cognate lesser offenses, which are only ‘related’ or of the same ‘class or category’ as the greater offense and may contain some elements not found in the greater offense,” and Wilder, 411 Mich at 345, recognized that “the underlying felony might be characterized as a cognate lesser included offense, not a necessarily included offense.”
Defendant concedes that Blockburger’s “same elements” test is applicable here.
In People v Harding, 443 Mich 693, 712; 506 NW2d 482 (1993), this Court, using Robideau’s “general principles,” concluded that convicting and sentencing a defendant for both first-degree felony murder and the predicate felony violates the “multiple punishments” strand. However, as noted, Robideau was expressly overruled in Smith. On the other hand, because Smith involved a conviction and sentence for first-degree felony murder and a non-predicate felony, Smith did not address “Wilder’s holding that the constitution bars multiple punishments for first-degree felony murder and the predicate felony”; however, it did note that “Wilder’s focus on the ‘proof of facts adduced at trial!]’ seems questionable in light of the distinction between cognate lesser offenses and lesser included offenses dictated by the Court in Cornell.” Smith, 478 Mich at 318 n 16.
As discussed earlier, the Court in Wilder, 411 Mich at 349 n 10, explained:
[The Blockburger test] isolates the elements of the offense as opposed to the actual proof of facts adduced at trial. Under this test, convictions of two criminal offenses arising from the same act are prohibited only when the greater offense necessarily includes all elements of the lesser offense. Accordingly, conviction of both offenses is precluded only where it is impossible to commit the greater offense without first having committed the lesser offense. [Citations omitted.]
In Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich at 397, this Court held that convicting and sentencing a defendant for both felony-firearm and the underlying felony does not violate the “multiple punishments” strand because “[i]t is possible, legally, to commit felony-firearm without committing second-degree murder.” We explained, “[i]n applying the Blockburger rule, the United States Supreme Court has focused on the legal elements of the respective offenses, not on the particular factual occurrence which gives rise to the charges.” Id. at 395. It is interesting that Justice Cavanagh does not even mention Wayne Co Prosecutor v Recorder’s Court Judge. As with Robideau, see n 7, this case has also fallen down a memory hole.
Justice Cavanagh indicates that Whalen must not have been using the “same conduct” test because it did not specifically refer to the “same conduct” test. Post at 247. We disagree. The fact that a court does not specifically proclaim its utilization of a particular test does not mean that it was not, in fact, employing that test. Even a perfunctory review of the Court’s decision in Whalen indicates that it was using the “same conduct” test, as evinced by the fact that the Court focused on the defendant’s conduct in that particular case, rather than the abstract legal elements of the offenses at issue.
Although Justice Cavanagh is correct that “none of the United States Supreme Court cases cited by the majority for the proposition that Blockburger compels a comparison of abstract statutory elements involves a compound offense such as Michigan’s felony-murder statute,” post at 245 (emphasis omitted), we do cite two Michigan Supreme Court cases for this proposition that do involve a compound offense. In Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich at 397, this Court, as discussed earlier, held that convicting and sentencing a defendant for both felony-firearm and the underlying felony does not violate the “multiple punishments” strand because “[i]t is possible, legally, to commit felony-firearm without committing second-degree murder.” In addition, as also discussed above, this Court in Robideau, 419 Mich at 466, concluded that the Double Jeopardy Clause does not prohibit multiple punishments for convictions and sentences of both first-degree criminal sexual conduct, MCL 750.520b(l)(c) (penetration under circumstances involving any “other felony”), and the underlying “other felony” used to prove the first-degree criminal sexual conduct.
Justice CAVANAGH relies on three decisions to support his conclusion that Whalen remains controlling authority. However, only one of these decisions involved a compound offense such as Michigan’s felony-murder statute. Rutledge v United States, 517 US 292; 116 S Ct 1241; 134 L Ed 2d 419 (1996), involved a lesser included offense and Whalen was merely cited for the proposition that convicting a defendant of both the greater offense and the lesser included offense violates double jeopardy. In United States v Stafford, 831 F2d 1479, 1483-1484 (CA 9, 1987), the court held that convicting the defendant of violating a statute that required proof of an “overt act in furtherance of the underlying unlawful activity” and the underlying unlawful activity did not violate double jeopardy because committing an overt act in furtherance of a crime is not the “same” as actually committing the crime. Finally, although United States v Chalan, 812 F2d 1302 (CA 10, 1987), did involve a compound offense, it was decided before Dixon, which expressly overruled the “same conduct” test that Whalen used, and it did not discuss whether only the abstract legal elements or the particular facts of the case should be considered.
Contrary to Justice Cavanagh’s assertion, post at 244, 251-252, 254, we certainly do recognize that the Blockburger test is a tool to be used to ascertain legislative intent and that it is not the exclusive tool for doing this. As this Court explained in Smith, 478 Mich at 316:
In interpreting "same offense” in the context of multiple punishments, federal courts first look to determine whether the legislature expressed a clear intention that multiple punishments be imposed. Where the Legislature does clearly intend to impose such multiple punishments, “ ‘imposition of such sentences does not violate the Constitution,’ ” regardless of whether the offenses share the “same elements.” Where the Legislature has not clearly expressed its intention to authorize multiple punishments, federal courts apply the “same elements” test of Blockburger to determine whether multiple punishments are permitted. [Citations omitted; see also n 3 of this opinion.]
The dissenting justices, on the other hand, would turn our (and the United States Supreme Court’s) double-jeopardy jurisprudence on its head by effectively holding that multiple punishments can only be imposed if the Legislature has expressly stated that multiple punishments for specific offenses are permitted. However, neither this Court nor the United States Supreme Court has ever adopted such a rule, and we will not do so here today. Instead, we continue to view the fact that the Legislature has authorized the punishment of two offenses that are not the “same offense,” i.e., each offense includes an element that the other does not, as a relatively clear legislative intent to allow multiple punish ments. Although Justice CAVANAGH states that he would not require “an explicit reference to multiple punishments and consecutive sentencing,” post at 254, we are at a loss as to how else the Legislature could sufficiently indicate to his satisfaction that multiple punishments are permitted given his conclusion that “[i]n the absence of clear legislative intent to the contrary, I would conclude that the Legislature did not intend to impose punishments for felony murder and its necessarily required predicate felony.” Post at 254. Likewise, although Justice Kelly states that she “doles] not suggest that the only way to discern whether the Legislature intended to permit multiple punishments is to find explicit language in the statute,” post at 265 n 41, she repeatedly states that “the felony-murder statute contains no language indicating an intent to permit multiple punishments” and that “[n]o conclusive evidence can he discerned that the Legislature intended to permit convictions for both felony murder and the predicate felony.” Post at 262, 263, 265. What short of an explicit reference would suffice under the standards of the dissenting justices? | [
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PER CURIAM.
The issue in this case is whether plaintiff may avail himself of the tolling provision of the Service-members Civil Relief Act (SCRA) when he failed to raise that provision in response to a motion for summary disposition by defendant. We hold that he may not. In lieu of granting leave to appeal, MCR 7.302(G)(1), we affirm the judgment of the Court of Appeals, but for a different reason. We vacate that portion of the Court of Appeals judgment holding that the SCRA tolling provision is discretionary; the tolling provision is mandatory. We hold, however, that the Court of Appeals did not err by refusing to consider the issue because the tolling provision may be waived if it is not raised in the trial court.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff, Robert Walters, was involved in an automobile accident with defendant, Nathan Nadell, on May 11, 2001. Plaintiff filed a complaint on February 26, 2004, that alleged that defendant was negligent. Plaintiff was unable to serve defendant before his original and second summonses expired because defendant was serving in the military. The period of limitations for plaintiffs action expired while he was attempting to perfect service of process.
On October 21,2004, plaintiff filed a second, separate complaint against defendant, raising the same claims against defendant as those in the first complaint. Plaintiff was issued a summons for the second action that expired on January 20, 2005. Defendant was served with the summons and complaint on December 10, 2004, at Fort Benning, Georgia. Defendant filed a motion seeking dismissal with prejudice on the ground that the period of limitations had expired before plaintiff filed his complaint for the second action. Plaintiff responded to defendant’s motion, arguing that the period of limitations was tolled pursuant to MCL 600.5853. The trial court granted summary disposition in favor of defendant and entered an order dismissing plaintiffs complaint with prejudice.
Plaintiff appealed, arguing that the period of limitations was tolled under MCL 600.5853. Plaintiff also argued, for the first time, that the tolling provisions of the SCRA required reversal. The Court of Appeals affirmed the trial court, albeit on different grounds, and declined to address plaintiffs SCRA argument, holding that it was unpreserved for appellate review and that the tolling provision of the SCRA was discretionary.
Plaintiff sought leave to appeal in this Court, arguing only that his claims were timely because the SCRA tolled the period of limitations.
II. STANDARD OF REVIEW
We review de novo the grant or denial of summary disposition. This case requires us to interpret provisions of the SCRA. Statutory interpretation is a question of law, which we review de novo. When interpreting a federal statute, “ ‘[o]ur task is to give effect to the will of Congress . . . .’ ” To do so, “[w]e start, of course, with the statutory text,” and “[u]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.” “When the words of a statute are unambiguous,.. . ‘judicial inquiry is complete.’ ”
III. THE SCRA’S TOLLING PROVISION IS MANDATORY
Plaintiff argues that the Court of Appeals erred by not addressing his SCRA argument because the tolling provision of the SCRA is mandatory and cannot be waived. We first address plaintiffs contention that the tolling provision of the SCRA is mandatory.
The former Soldiers’ and Sailors’ Civil Relief Act of 1940 underwent significant amendment in 2003 when Congress enacted the SCRA. Before the amendment, former 50 USC Appendix 525 provided in part:
The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court... by or against any person in military service .... [Emphasis added.]
The substantive equivalent of this provision is now in 50 USC Appendix 526(a), which provides in relevant part:
The period of a servicemember’s military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court... by or against the servicemember.... [Emphasis added.]
The United States Supreme Court interpreted former 50 USC Appendix 525 of the Soldiers’ and Sailors’ Civil Relief Act and held that it was “unambiguous, unequivocal, and unlimited.” We do not believe that the 2003 amendments inserted any ambiguity into the meaning of the tolling provision, and we similarly hold that current 50 USC Appendix 526 is “unambiguous, unequivocal, and unlimited.”
The Court of Appeals opined that the change from “shall not” to “may not” rendered the tolling discretionary. Although the term “shall” is clearly mandatory, and the term “may” is typically permissive, “may not,” in the context of 50 USC Appendix 526(a), is not permissive. “May not,” as it is used in 50 USC Appendix 526(a), has the same meaning and import as “cannot” or its predecessor, “shall not.” The provision clearly provides that the time that a servicemember is in military service is excluded from any period of limitations.
The Court of Appeals erred in its conclusion that the amendment rendered the tolling provision discretionary. We hold that the tolling provision, 50 USC Appendix 526(a), is mandatory. We must next consider whether the act nonetheless permits waiver of the mandatory tolling provision.
IV A PLAINTIFF WITH CLAIMS AGAINST A SERVICEMEMBER MAY WAIVE THE SCRA’S MANDATORY TOLLING PROVISION
The SCRA makes clear that the servicemember may waive the protections of the act. 50 USC Appendix 517(a) provides that “[a] servicemember may waive any of the rights and protections provided by this Act.” 50 USC Appendix 517(b) requires written waivers for certain actions that arise from disputes involving certain legal instruments, but in all other actions the rights and protections of the act may be waived by any other means.
Waiver under the SCRA is not limited to servicemembers. Congress set out the purpose of the SCRA in 50 USC Appendix 502:
(1) to provide for, strengthen, and expedite the national defense through protection extended by this Act to service-members of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and
(2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.
Thus, in order to strengthen the national defense, Congress enacted the SCRA to temporarily free service-members from the burden of participating in litigation. The tolling of periods of limitations in actions against servicemembers serves to “provide for, strengthen, and expedite the national defense” by protecting “the civil rights of servicemembers during their military service.” The benefits of the tolling provision to a plaintiff suing a servicemember are merely incidental to the protections that provision provides servicemembers.
Congress enacted the SCRA as a shield to protect servicemembers from having to respond to litigation while in active service, but manifestly indicated that the SCRA’s protections may be waived. Here, plaintiff is seeking to transform the SCRA into a sword to preserve his lawsuit without having timely invoked its provisions. It would be incongruent with the purpose of the SCRA to permit a servicemember to waive the rights and protections of the act, but bar a nonservicemember from waiving incidental benefits, and thereby provide, without exception, incidental benefits to a nonservicemember. The express purpose of the act is inconsistent with providing more protections to a nonservicemember than a servicemember. Because the purpose of the act is to protect servicemembers, we conclude that Congress did not intend to prohibit waiver by a nonservicemember. Therefore, we hold that the mandatory tolling provision of 50 USC Appendix 526(a) may be waived by a plaintiff asserting a claim against a service-member during the servicemember’s military service.
The final question we must resolve is whether plaintiff waived the tolling of the period of limitations in this case by failing to raise the tolling provision in the trial court.
V PLAINTIFF WAIVED THE SCRA’S MANDATORY TOLLING PROVISION
Michigan generally follows the “raise or waive” rule of appellate review. Under our jurisprudence, a litigant must preserve an issue for appellate review by raising it in the trial court. Although this Court has inherent power to review an issue not raised in the trial court to prevent a miscarriage of justice, generally a“failure to timely raise an issue waives review of that issue on appeal.”
The principal rationale for the rule is based in the nature of the adversarial process and judicial efficiency. By limiting appellate review to those issues raised and argued in the trial court, and holding all other issues waived, appellate courts require litigants to raise and frame their arguments at a time when their opponents may respond to them factually. This practice also avoids the untenable result of permitting an unsuccessful litigant to prevail by avoiding its tactical decisions that proved unsuccessful. Generally, a party may not remain silent in the trial court, only to prevail on an issue that was not called to the trial court’s attention. Trial courts are not the research assistants of the litigants; the parties have a duty to fully present their legal arguments to the court for its resolution of their dispute.
Plaintiffs cause of action accrued on May 11, 2001, and plaintiff filed the instant complaint on October 21, 2004. Without tolling, the period of limitations for plaintiffs claim expired on May 12, 2004. Defendant moved to dismiss plaintiffs complaint with prejudice, arguing that plaintiff had filed his complaint after the period of limitations expired. It is undisputed that plaintiff did not raise the tolling provision of the SCRA in response to defendant’s motion. Thus, under our “raise or waive” rule, it is undisputed that plaintiff waived the tolling provision.
It could be argued that the tolling provision cannot be waived because it is mandatory. However, as discussed, Congress did not intend to prohibit waiver by a nonservicemember. Moreover, our “raise or waive” rule permits waiver of otherwise mandatory statutory provisions. For example, our statute of limitations provision is mandatory, just like the tolling provision of the SCRA:
A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the period of time prescribed by this section.[ ]
It has long been the rule in Michigan that a defendant may waive a statute of limitations defense by failing to raise it in the trial court. Under the Michigan Court Rules, a defendant waives a statute of limitations defense by failing to raise it in his first responsive pleading. The defendant may cure his failure to raise the defense in his first responsive pleading by amending the pleading, but the defendant must, in any event, raise the defense in the trial court.
We hold that a tolling provision may be waived just as a statute of limitations defense may be waived. Consis tent with the rule against appellate review of issues not raised in the trial court, a plaintiff may waive the tolling of the period of limitations by failing to raise it in the trial court.
We are aware of decisions in other courts that reach the opposite conclusion, but those decisions are not binding, and we do not find them persuasive. Plaintiff failed to raise his SCRA argument in the trial court, but now seeks belatedly to use it as a sword to defeat dismissal. This would have the perverse effect of rendering the servicemember amenable to suit when the tolling provision was never invoked in the trial court. Therefore, we hold that plaintiff has waived the tolling provision of the SCRA, and the Court of Appeals did not err by not addressing the merits of plaintiffs SCRA argument.
VI. CONCLUSION
The tolling provision of the SCRA, 50 USC Appendix 526(a), is mandatory but not self-executing. A litigant pursuing a claim against a servicemember has a respon sibility to bring the tolling provision to the attention of the trial court if he desires to avail himself of its benefits. Plaintiff failed to raise the tolling provision of the SCRA. in the trial court; therefore he has waived his right to raise the provision as grounds for relief on appeal.
Affirmed in part and vacated in part.
Cavanagh, Corrigan, Young, and Markman, JJ., concurred.
50 USC Appendix 526(a).
As part of that action, plaintiff also filed a declaratory judgment action against the insurer of the automobile that he was operating at the time of the accident. The insurer is no longer a party to these proceedings.
Pursuant to former MCL 600.5805(9), now MCL 600.5805(10), the period of limitations expired on May 12, 2004.
Plaintiff also sought and obtained an amendment to the second summons he was issued in the first action. The second summons was amended to expire on January 20, 2005. Defendant was served with the amended summons, but he prevailed on a summary disposition motion, arguing that, under MCR 2.102(D), the court did not have authority to amend the second summons. Plaintiff has not appealed that decision.
Walters v Nadell, unpublished opinion per curiam of the Court of Appeals, issued March 23,2006 (Docket Nos. 263503 and 263504), pp 6-7.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev Bd, 472 Mich 479, 488; 697 NW2d 871 (2005).
Negonsott v Samuels, 507 US 99, 104; 113 S Ct 1119; 122 L Ed 2d 457 (1993), quoting Griffin v Oceanic Contractors, Inc, 458 US 564, 570; 102 S Ct 3245; 73 L Ed 2d 973 (1982).
BP America Production Co v Burton, 549 US 84, _; 127 S Ct 638, 643; 166 L Ed 2d 494, 502 (2006).
Connecticut Nat’l Bank v Germain, 503 US 249, 254; 112 S Ct 1146; 117 L Ed 2d 391 (1992), quoting Rubin v United States, 449 US 424, 430; 101 S Ct 698; 66 L Ed 2d 633 (1981).
See PL 76-861, 54 Stat 1178, as amended by PL 108-189, 117 Stat 2835. The SCRA is codified at 50 USC Appendix 501 et seq.
Conroy v Aniskoff, 507 US 511, 514; 113 S Ct 1562; 123 L Ed 2d 229 (1993).
See Ryan v Wayne Co Bd of Canvassers, 396 Mich 213, 216; 240 NW2d 236 (1976) (“[T]he phrase ‘may not be recounted’ means shall not be recounted.”).
We have recognized a distinction in Michigan law between the terms “waiver” and “forfeiture.” See Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 69-70; 642 NW2d 663 (2002). “Waiver” is an intentional and voluntary relinquishment of a known right, while “forfeiture” is “the failure to assert a right in a timely fashion.” Id. at 69. That distinction has relevance in some contexts in which certain, usually constitutional, rights may be waived but not forfeited. See Freytag v Internal Revenue Comm’r, 501 US 868, 895 n 2; 111 S Ct 2631; 115 L Ed 2d 764 (1991) (Scalia, J., concurring in part) (comparing the rights to counsel and trial by jury, which cannot be forfeited by any means short of waiver, to other rights that can be forfeited). In the civil procedure context, however, the term “waiver” is typically used in the colloquial sense, encompassing inaction that would technically constitute forfeiture. For example, FR Civ P 12(h)(1) provides that “[a] party waives any defense listed in [FR Civ P 12(b)(2) through (5)] by” failing to raise it in a motion or responsive pleading. (Emphasis added.) This, incidentally, is consistent with our own rules of civil procedure. See, e.g., MCR 2.111(F) and 2.116(D)(1). The SCRA generally serves to suspend rights and liabilities that would be enforced through civil litigation. See 50 USC Appendix 502(2) and 512(b). Indeed, the tolling of a period of limitations, which determines when a civil action may be brought, is distinctly a matter of civil procedure. Thus, we believe that Congress used the term “waive” in the SCRA in the manner that it is commonly used in civil procedure, permitting forfeiture as well as waiver. Accordingly, we use the term “waiver” in a manner consistent with the federal statute and court rules throughout this opinion.
50 USC Appendix 517(b).
50 USC Appendix 517 provides in its entirety:
(a) In general. — A servicemember may waive any of the rights and protections provided by this Act [50 USC Appendix 501 through 596], Any such waiver that applies to an action listed in subsection (b) of this section is effective only if it is in writing and is executed as an instrument separate from the obligation or liability to which it applies. In the case of a waiver that permits an action described in subsection Os), the waiver is effective only if made pursuant to a written agreement of the parties that is executed during or after the servicemember’s period of military service. The written agreement shall specify the legal instrument to which the waiver applies and, if the servicemember is not a party to that instrument, the servicemember concerned.
(b) Actions requiring waivers in writing. — The requirement in subsection (a) for a written waiver applies to the following:
(1) The modification, termination, or cancellation of—
(A) a contract, lease, or bailment; or
(B) an obligation secured by a mortgage, trust, deed, lien, or other security in the nature of a mortgage.
(2) The repossession, retention, foreclosure, sale, forfeiture, or taking possession of property that—
(A) is security for any obligation; or
(B) was purchased or received under a contract, lease, or bailment.
(c) Prominent display of certain contract rights waivers. — Any waiver in writing of a right or protection provided by this Act that applies to a contract, lease, or similar legal instrument must be in at least 12 point type.
(d) Coverage of periods after orders received. — For the purposes of this section—
(1) a person to whom section 106 [50 USC Appendix 516] applies shall be considered to be a servicemember; and
(2) the period with respect to such a person specified in subsection (a) or (b), as the case may be, of section 106 shall be considered to be a period of military service.
See 50 USC Appendix 517(a) (“A servicemember may waive any of the rights and protections provided by the Act.”).
In his dissent, the Chief Justice asserts that we have read a waiver provision for nonservicemembers into the SCRA. Post at 395. Our discussion merely establishes that Congress did not intend that the rights and protections of the SCRA would be unwaivable mandates. The Chief Justice implicitly recognizes this to be true by acknowledging that, absent a miscarriage of justice, plaintiff waived tolling pursuant to the SCRA Post at 397, citing Napier v Jacobs, 429 Mich 222, 232-233; 414 NW2d 862 (1987). Indeed, the only distinction between the majority opinion and the dissent is that we hold that there is no miscarriage of justice in permitting plaintiff to waive a mandatory tolling provision, just as we permit waiver of a mandatory statute of limitations defense, see n 30 of this opinion and accompanying text, but the dissent would remand this case to the Court of Appeals for further consideration of that issue. Post at 397.
See Napier, supra at 228.
Id.; Therrian v Gen Laboratories, Inc, 372 Mich 487, 490; 127 NW2d 319 (1964) (“Since defendant failed to raise such issues below, they are not available to it on appeal.”).
Napier, supra at 233 (“ ‘[Sjuch inherent power is to be exercised only under what appear to be compelling circumstances to avoid a miscarriage of justice or to accord a [criminal] defendant a fair trial.’ ”), quoting People v Farmer, 380 Mich 198, 208; 156 NW2d 504 (1968).
Napier, supra at 227.
See id. at 228-229.
Id. at 228.
See Kinney v Folkerts, 84 Mich 616, 625; 48 NW 283 (1891) (“Parties cannot remain silent, and thereby lie in wait to ground error, after the trial is over, upon a neglect of the court to instruct the jury as to something which was not called to its attention on the trial, especially in civil cases.”).
MCL 600.5805(1) (emphasis added).
See Moden v Superintendents of the Poor of Van Buren Co, 183 Mich 120, 125-126; 149 NW 1064 (1914); see also Roberts, supra at 67 (noting that “a defendant could effectively ‘waive’ any objections to plaintiffs fulfillment of the requirements of [MCL 600.5856(d) by] failfing] to invoke the pertinent statute of limitations after a plaintiff files suit____”); Lothian v Detroit, 414 Mich 160, 167; 324 NW2d 9 (1982) (“Similarly, [a statute of limitations] defense may be waived by failure to plead it, by express agreement not to assert it, or by conduct which estops the defendant from interposing it.”).
MCR 2.111(F)(3)(a).
Under MCR 2.118(A)(1), the defendant may amend its first responsive pleading “as a matter of course ... within 14 days after serving the pleading if it does not require a responsive pleading.” Otherwise the defendant may only amend its first responsive pleading “by leave of the court or by written consent of the adverse party.” MCR 2.118(A)(2).
We note that because we permit waiver of statute of limitations defenses, waiver of tolling those same periods of limitations does not present a “miscarriage of justice” that would permit appellate intervention. See Napier, supra at 233.
See, e.g., Ricard v Birch, 529 F2d 214 (CA 4, 1975); Kenney v Churchill Truck Lines, Inc, 6 Ill App 3d 983; 286 NE2d 619 (1972).
See Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004) (holding that, “[although lower federal court decisions may be persuasive, they are not binding on state courts”). In Ricard, supra at 216, the United States Court of Appeals for the Fourth Circuit held that the SCRA tolling provision could not be waived because “orderly rules of procedure do not require sacrifice of the rules of fundamental justice.” The Ricard holding (1) is inconsistent with the principal rationale for our waiver rule, (2) suggests an exception that would consume the rule, and (3) is inconsistent with our precedent permitting waiver of a statute of limitations defense. Thus, we do not follow its holding. | [
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] |
Kelly, J.
Plaintiffs Judith and Joseph Kuznar sued Raksha Corporation, doing business as Crown Pharmacy (hereafter Crown Pharmacy), and its nonpharmacist employee Valerie Randall for negligence in refilling a prescription that resulted in injury to Judith. The issue is whether the two-year statutory period of limitations for medical malpractice or the three-year period for ordinary negligence applies to plaintiffs’ claims.
We affirm the Court of Appeals conclusion that a pharmacy is not a licensed health facility or agency. In addition, we conclude that a pharmacy is not a licensed health-care professional. We hold, therefore, that a pharmacy cannot be directly liable for medical malpractice. But it can be directly liable for ordinary negligence for operating without having a licensed pharmacist on site and for allowing a nonpharmacist to dispense medications. Hence, plaintiffs’ claims of direct negligence on the part of the pharmacy are timely under the three-year period of limitations for ordinary negligence.
Because the pharmacy is not a licensed health facility or agency, the defendant nonpharmacist employee was not an employee of such a facility or agency. Neither was she a licensed health-care professional. As a consequence, plaintiffs’ claims alleging negligence by the nonpharmacist employee and vicarious liability for that negligence by the pharmacy may also proceed under the three-year statute of limitations for ordinary negligence.
We affirm the judgment of the Court of Appeals and remand the case to the circuit court for proceedings not inconsistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
On November 11, 2000, Joseph Kuznar took a prescription for Mirapex, 0.125 mg, to be refilled at Crown Pharmacy. His wife, Judith, was taking the medication on her physician’s orders to control the symptoms of restless leg syndrome. Defendant Valerie Randall refilled the prescription with 1 mg tablets of Mirapex, each tablet thus containing eight times the prescribed dosage. Randall was a Crown Pharmacy employee who was not a licensed pharmacist and was not acting under the supervision of a pharmacist.
Judith Kuznar took one of the 1 mg Mirapex tablets in the afternoon and two in the early evening of November 13, 2000. She became dizzy, agitated, and nauseated in the evening and lost consciousness during the night. At the Botsford General Hospital emergency room, her symptoms were determined to be an adverse reaction to the excessive dosage of Mirapex.
On October 7, 2003, the Kuznars filed a negligence lawsuit against both Crown Pharmacy and Randall. In count 17 of the complaint, plaintiffs alleged that Crown Pharmacy owed a duty to exercise reasonable care through its agents and employees when dispensing medications. In count 18, plaintiffs alleged that Crown Pharmacy owed a duty to avoid foreseeable injury when dispensing medications. In count 19, plaintiffs alleged that the pharmacy breached these duties by:
a. Failing to dispense the appropriate medication dosage and refilling a prescription instead with eight times the prescribed dosage.
b. Failing to timely recognize the error made in dispensing medications.
c. Allowing persons other than a licensed pharmacist to refill prescriptions.
d. Failing to have a licensed pharmacist available on site to oversee, supervise and control the actions of persons not pharmacists who refilled prescription[s].
In counts 22 to 24, plaintiffs alleged that Randall had a duty not to dispense medication if she was not a licensed pharmacist. Alternatively, plaintiffs alleged, she had a duty “to adhere to a standard of care to which she is held to avoid foreseeable injury in dispensing medications.” In count 25, plaintiffs alleged that Randall breached these duties by:
a. Dispensing medication which she was not qualified to dispense as she was not a licensed pharmacist.
b. Fading to dispense the appropriate medication dosage and refilling a prescription instead with eight times the prescribed dosage.
c. Failing to timely recognize the error made in dispensing medications.
d. Failing to consult with a licensed pharmacist before dispensing medications.
On August 9, 2004, defendants moved for summary disposition under MCR 2.116(C)(7) and (8). They contended that, because Randall was employed at a licensed health facility or agency, the complaint sounded in medical malpractice rather than in ordinary negligence. Defendants argued that the complaint failed to state a claim for ordinary negligence and was barred by the two-year statute of limitations for medical malpractice. The circuit court denied the motion without explanation.
The Court of Appeals affirmed the circuit court’s denial of defendants’ motion for summary disposition. It pointed out that, under MCL 600.5838a(l), a medical malpractice claim can be brought against a “licensed health facility or agency” as defined in article 17 of the Public Health Code. Because the licensure requirement applicable to pharmacies appears in article 15 of the code, and not in article 17, the Court of Appeals concluded that a pharmacy is not a “licensed health facility or agency” subject to medical malpractice claims.
The Court of Appeals noted that pharmacists are licensed health-care professionals subject to medical malpractice claims under MCL 600.5838a(l)(b). However, Randall was not a licensed pharmacist, and neither was Crown Pharmacy. The Court noted that MCL 600.5838a(l) contemplates that the negligent acts of unlicensed agents or employees of licensed health facilities or agencies may be subject to medical malpractice claims. But because a pharmacy is not a “licensed health facility or agency,” the Court opined, no medical malpractice had occurred in this case. The Court of Appeals concluded that plaintiffs’ complaint was timely under the three-year limitations period for ordinary negligence.
II. standard of review
Defendants sought leave to appeal in this Court. We review decisions on motions for summary disposition de novo. Such motions are properly granted under MCR 2.116(C)(7) when a statute of limitations bars a claim. In reviewing whether a motion under MCR 2.116(C)(7) was properly decided, we consider all documentary evidence and accept the complaint as factually accurate unless affidavits or other appropriate documents spe cifically contradict it.
Summary disposition is proper under MCR 2.116(C)(8) if the nonmoving party “has failed to state a claim on which relief can be granted.” Such claims must be “ ‘so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.’ ” In reviewing the outcome of a motion under MCR 2.116(C)(8), we consider the pleadings alone. We accept the factual allegations in the complaint as true and construe them in a light most favorable to the nonmoving party.
We also review questions of statutory interpretation de novo. Our main goal in doing so is to give effect to the intent of the Legislature. When a statute specifically defines a given term, that definition alone controls. The meaning accorded to undefined terms is determined in part by their placement in the statute and their purpose in the statutory scheme.
III. ANALYSIS
A. THE BRYANT REQUIREMENTS FOR MEDICAL MALPRACTICE
In Bryant, this Court held that, to be subject to the requirements for asserting medical malpractice, a claim must allege an action that (1) occurred within the course of a professional relationship and (2) poses questions of medical judgment outside the realm of common knowledge and experience.
A professional relationship exists if a person or an entity capable of committing medical malpractice was subject to a contractual duty to render professional health-care services to the plaintiff. Under the common law, only physicians and surgeons were potentially liable for medical malpractice. But in MCL 600.5838a(l), the Legislature expanded the scope of those who could be liable for medical malpractice. It provided for medical malpractice claims to be brought against “a person or entity who is or who holds himself or herself out to be a licensed health care professional, licensed health facility or agency, or an employee or agent of a licensed health facility or agency . . . ,”
The primary issue in this case is whether the pharmacy technician and the pharmacy are covered by MCL 600.5838a(l). We conclude that they are not. Because the professional relationship test is not satisfied, we need not consider whether the complaint poses questions of medical judgment that would require expert testimony.
B. A LICENSED HEALTH FACILITY OR AGENCY
The Court of Appeals correctly applied the relevant statutes in determining that licensed health facilities and agencies are those licensed under article 17 of the Public Health Code. Article 17, entitled “Facilities and Agencies,” provides its own definition of what is a health facility or agency in the form of a list. The list does not include pharmacies. All the entities listed do more than just dispense medication. They provide in- or out-patient or residential or emergency medical care or treatment. MCL 333.20115(1) allows the promulgation of administrative rules to “further define” this list. Neither party has identified any administrative expansion of the list.
Under the statutory definition, a pharmacy is not a licensed health facility or agency and cannot be directly liable for medical malpractice in that capacity. Nor can its agents and employees be liable for medical malpractice as agents or employees of a licensed health facility or agency. The Court of Appeals correctly held that Randall and Crown Pharmacy cannot be liable for medial malpractice under this rationale.
C. A LICENSED HEALTH-CARE PROFESSIONAL
Defendants and the Michigan Pharmacists Association urge us to hold that a pharmacy is a licensed health-care professional. We decline to do so.
A licensed health-care professional is “an individual licensed or registered under article 15 of the public health code ... and engaged in the practice of his or her health profession in a ... business entity.” The flaw in defendants’ proposition is that the Public Health Code defines “individual” to mean “a natural person.” Article 15 defines a “pharmacist” as “an individual licensed under this article to engage in the practice of pharmacy.” However, it does not define a pharmacy as an individual or a natural person.
Instead, “pharmacy” is defined as “a building or a part of a building in which the practice of pharmacy is conducted.” MCL 333.17711(1) provides that “a person shall not engage in the practice of pharmacy unless licensed or otherwise authorized by this article.” The Public Health Code defines “person” in relevant part as “an individual, partnership, cooperative, association, private corporation, personal representative, receiver, trustee, assignee, or other legal entity.” Although a business entity can operate a licensed pharmacy, there is no requirement that a business entity operating as a pharmacy must consist solely of licensed health-care professionals.
Rather, the standards for the operation of a pharmacy provide:
(1) A pharmacy shall not be operated unless licensed by this part.
(2) A pharmacy open for business shall be under the personal charge of a pharmacist.[ ] A pharmacist shall not simultaneously have personal charge of more than 1 pharmacy. The person to whom a pharmacy license is issued and the pharmacists on duty are responsible for compliance with federal and state laws regulating the distribution of drugs and the practice of pharmacy. Pharmacy services shall be conducted under the control and personal charge of a pharmacist.
(3) A penalty for violation of this part does not affect the pharmacy license of other than the place of business where the violation occurred.[ ]
These standards make clear that a license to operate a pharmacy can be issued to a nonpharmacist. But the holder of the pharmacy license cannot open a pharmacy for business unless a licensed pharmacist is physically present on site. Because a pharmacy may be operated by a nonpharmacist, a pharmacy and a pharmacist are not the same thing. Whereas a pharmacist is a licensed health care professional, a pharmacy is not.
Since Crown Pharmacy was not a licensed healthcare professional, it could not have had a professional relationship with plaintiffs. Because plaintiffs’ direct claim against the pharmacy fails the first prong of Bryant’s two-pronged test, it cannot sound in medical malpractice.
In count 19(c) and (d) of the complaint, plaintiffs alleged that Crown Pharmacy allowed nonpharmacists to refill prescriptions. They asserted that Crown did not have a licensed pharmacist on site to oversee, supervise, and control the activities of nonpharmacists. Plaintiffs essentially alleged that the holder of the pharmacy license in this case operated the pharmacy in violation of MCL 333.17741. These are allegations of direct liability on the part of Crown Pharmacy. Because the pharmacy itself is not a licensed health-care professional, its direct liability for violations of the statute lies in ordinary negligence. The claims in count 19(c) and (d) of the complaint are subject to the three-year statutory period of limitations for ordinary negligence and are not barred by the expiration of it.
The remaining allegations in plaintiffs’ complaint concern Randall’s direct liability for her own negligence in refilling the prescription and Crown Pharmacy’s vicarious liability for the negligence of its employee. Plaintiffs alleged that Randall was not a licensed pharmacist, and defendants have presented no documentary evidence to disprove this allegation.
On the basis of the allegations in plaintiffs’ complaint, Randall cannot be liable in medical malpractice. Rather, she is directly liable for her own ordinary negligence, and Crown Pharmacy is vicariously liable for the ordinary negligence of its employee.
IV CONCLUSION
A pharmacy is neither a licensed health facility or agency nor a licensed health-care professional and cannot be directly liable for medical malpractice. Hence, under the law, Crown Pharmacy was incapable of committing medical malpractice.
Plaintiffs alleged that the prescription was refilled by a nonpharmacist employee of Crown Pharmacy without the supervision of a pharmacist. Defendants have presented no evidence to the contrary. A nonpharmacist employee of a licensed pharmacy is neither a licensed health-care professional nor an employee or agent of a licensed health facility or agency.
Accordingly, plaintiffs’ claims of direct liability against Randall and Crown Pharmacy and their claims for vicarious liability against Crown Pharmacy sound in ordinary negligence. Because plaintiffs have stated valid claims of ordinary negligence, the trial court properly denied defendants’ motion for summary disposition under MCR 2.116(C)(8). The claims are not barred by the applicable three-year statute of limitations, and so the court also properly denied defendants’ motion for summary disposition under MCR 2.116(C)(7).
Accordingly, we affirm the judgment of the Court of Appeals and remand the case to the Wayne Circuit Court for further proceedings.
Taylor, C.J., and Cavanagh, Weaver, Corrigan, Young, and Markman, JJ., concurred with Kelly, J.
MCL 600.5805(6).
MCL 600.5805(10).
These are plaintiffs’ allegations in the complaint. We accept them as true for purposes of defendants’ motion for summary disposition under MCR 2.116(C)(7) and (8). Defendants characterize Randall as apharmacy technician.
Joseph Kuznar’s claims are derivative.
Kuznar v Raksha Corp, 272 Mich App 130; 724 NW2d 493 (2006).
MCL 333.20101 et seq.
MCL 333.16101 et seq.
MCL 600.5805(10).
See Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 419; 684 NW2d 864 (2004).
Id. We note that defendants based their motion for summary disposition exclusively on plaintiffs’ complaint.
Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999) (citation omitted).
Id.
Id.
Haynes v Neshewat, 477 Mich 29, 34; 729 NW2d 488 (2007).
Id. at 35.
Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999).
Bryant, 471 Mich at 422.
Id.
Id. at 420 n 8.
MCL 600.5838a(l).
Bryant, 471 Mich at 423.
MCL 600.5838a(l)(a).
MCL 333.20106(1) provides that “health facility or agency” means
(a) An ambulance operation, aircraft transport operation, non-transport prehospital life support operation, or medical first response service.
(b) A clinical laboratory
(c) A county medical care facility
(d) A freestanding surgical outpatient facility.
(e) A health maintenance organization.
(f) A home for the aged.
(g) A hospital.
(h) A nursing home.
(i) A hospice.
(j) A hospice residence.
(k) A facility or agency listed in subdivisions (a) to (h) located in a university, college, or other educational institution.
MCL 600.5838a(l)(b),
MCL 333.1105(1).
MCL 333.17707(2).
MCL 333.17707(4).
MCL 333.1106(2).
“Personal charge” means the immediate physical presence of a pharmacist. MCL 333.17707(1).
MCL 333.17741.
Defendants rely on two Court of Appeals cases for their claim that a pharmacy is a licensed health-care professional. See Becker v Meyer Rexall Drug Co, 141 Mich App 481; 367 NW2d 424 (1985); Simmons v Apex Drug Stores, Inc, 201 Mich App 250; 506 NW2d 562 (1993). In each case, a pharmacy was sued when a pharmacist incorrectly filled a prescription. Neither Becker nor Simmons specifically analyzed the distinction between a claim against a pharmacy and a claim against a pharmacist.
“The fact that a person has violated a safety statute may be admitted as evidence bearing on the question of negligence.” Klanseck v Anderson Sales & Service, Inc, 426 Mich 78, 86; 393 NW2d 356 (1986); cf. Orzel v Scott Drug Co, 449 Mich 550; 537 NW2d 208 (1995) (holding that a drug addict was not entitled to a recovery on the basis of the pharmacists’ alleged violation of the controlled-substance provisions of the Public Health Code because these provisions are not meant to protect persons who fraudulently obtain drugs).
Plaintiffs have not identified any officers or agents of Raksha Corporation responsible for the alleged violation of its statutory duty to operate the pharmacy only under the supervision of a pharmacist. However, because a corporation is a legal person, it is sufficient for the purposes of the complaint to allege its actions or failures as a legal person. See Theophelis v Lansing Gen Hosp, 430 Mich 473, 478; 424 NW2d 478 (1988), citing Jones v Martz & Meek Constr Co, Inc, 362 Mich 451, 455; 107 NW2d 802 (1961).
See Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 294-295; 731 NW2d 29 (2007) (“Vicarious liability ... rests on the imputation of the negligence of an agent to a principal.... [T]o succeed on a vicarious liability claim, a plaintiff need only prove that an agent has acted negligently.”).
For the first time in this Court, defendants argued that, by virtue of refilling the prescription, Randall held herself out as a licensed healthcare professional, as defined in MCL 600.5838a(l). We decline to consider this argument because defendants did not make it in the lower courts. | [
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YOUNG, J.
This case involves a partial taking of defendants’ property in connection with the construction of the M-6 highway. We are asked in this case to examine the scope of damages permitted under the phrase “just compensation” in article 10, § 2 of the 1963 Michigan Constitution. In addition to the fair market damages associated with the land taken, defendants also sought damages associated with the dust, dirt, noise, and related general effects of the M-6 project. However, the Uniform Condemnation Procedures Act (UCPA) specifically excludes compensation for the “general effects” of a project for which property is taken that are experienced by the general public or by property owners from whom no property is taken. The circuit court excluded general effects damages but the Court of Appeals reversed, holding that the UCPA’s limitation on damages was unconstitutional because it conflicted with the established constitutional meaning of “just compensation.”
Given the paucity of evidence indicating that, before 1963, those sophisticated in the law understood that just-compensation damages included “general effects” damages and contrary indications from pre-1963 case-law and secondary sources, we conclude that the presumption of the constitutionality of MCL 213.70(2) has not been overcome and hold that it is constitutional. Thus, the circuit court properly relied on MCL 213.70(2) to exclude evidence of “general effects” damages attributable to the M-6 highway. We reverse the Court of Appeals and remand to the circuit court for further proceedings consistent with this decision.
I. FACTS AND PROCEDURAL HISTORY
In connection with its construction of the M-6 limited-access freeway serving southern portions of Kent County, plaintiff Michigan Department of Transportation (MDOT) determined that it was necessary to condemn a portion of defendants’ two-acre parcel fronting Kenowa Avenue. The M-6 project called for MDOT to construct several bridge overpasses to accommodate existing roads such as Kenowa Avenue that would otherwise have been interrupted by the new freeway. MDOT estimated that it was necessary to take a portion of defendants’ land, approximately 49 feet by 120 feet, in order to construct the elevated overpass at Kenowa.
After defendants rejected MDOT’s offer of $4,200 for the strip of land, MDOT initiated a condemnation action under the UCEA in July 2001. Experts for both parties agreed that the strip of land had a fair market value of $3,800. However, defendants also sought an additional $48,200 in damages to the remaining property that defendants’ appraiser attributed to the “dust, dirt, noise, vibration, and smell” of nearby M-6.
On January 23, 2004, MDOT filed a motion in limine or, in the alternative, a motion for summary disposition under MCR 2.116(C)(8), seeking to exclude any evidence of the “general effects” damages. Because the parties’ experts agreed on the fair market value of the condemned property, MDOT argued it was entitled to summary disposition if the “general effects” evidence was excluded. In March 2004, the circuit court granted MDOT’s motion, relying on MCL 213.70(2), and later entered a final judgment awarding defendants $3,800 as full compensation for the taking as well as statutory attorney fees and interest.
The Court of Appeals reversed the circuit court, holding that the exclusion of “general effects” damages in MCL 213.70(2) was unconstitutional because it impermissibly conflicted with the established constitutional meaning of “just compensation.” The panel concluded that “any and all factors relevant to market value [must] be taken into consideration when determining the difference in the remaining property’s value before and after the taking.”
In addition, the panel, citing Campbell v United States, and decisions from other jurisdictions interpreting Campbell, held that in a partial taking, “ '[w]here the use of the land taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put, the effect of the whole improvement is properly to be considered in estimating the depreciation in value of the remaining land.’ ” The Court of Appeals remanded to the circuit court to evaluate whether the overpass construction was “integral and inseparable” to the M-6 project. On remand, the circuit court found that a question of fact existed regarding this issue. Consequently, the Court of Appeals again remanded to the circuit court “to allow the trier of fact to consider the experts’ testimony regarding the proper just compensation for the diminution in value of the remainder (that is, the portion of the Tomkins parcel left over after the government taking) that takes into account all relevant factors affecting its market value.” It subsequently denied MDOT’s motion for reconsideration.
MDOT filed an application for leave to appeal, which this Court granted.
II. STANDARD OF REVIEW
Questions of constitutional interpretation and statutory interpretation are questions of law reviewed de novo by this Court. This Court also reviews de novo a trial court’s decision to grant a motion for summary disposition.
III. RULES OF STATUTORY AND CONSTITUTIONAL INTERPRETATION
It is axiomatic that statutory language expresses legislative intent. “A fundamental principle of statutory construction is that ‘a clear and unambiguous statute leaves no room for judicial construction or interpretation.’ ” Where the statute unambiguously conveys the Legislature’s intent, “the proper role of a court is simply to apply the terms of the statute to the circumstances in a particular case.” Statutes are presumed constitutional, and this Court exercises the power to declare a law unconstitutional with extreme caution, never exercising it where serious doubt exists with regard to the conflict.
When interpreting our state constitution, this Court seeks the original meaning of the text to the ratifiers, the people, at the time of ratification. Technical legal terms must be interpreted in light of the meaning that those sophisticated in the law would have given those terms at the time of ratification.
IV ANALYSIS
In Silver Creek, this Court observed that the doctrine of eminent domain, the power of the government to take private property for a public use and with just compensation, is firmly established in both our federal and state constitutions. Dating back to the earliest days of statehood, Michigan’s various constitutions, including the most recent 1963 iteration, have reserved this power to the state. Const 1963, art 10, § 2 states, in relevant part, that “[pjrivate property shall not be taken for public use without just compensation ... .”
The Legislature enacted the UCPA in 1980 to make uniform the statutes that govern the exercise and procedure of eminent domain. Consistent with the constitutional mandate to award “just compensation,” the UCPA similarly demands that individuals receive “just compensation” when their property is taken by the government. When we interpret the UCPA in light of art 10, § 2, we must remember that “to the degree the Constitution has been construed to outline the nature of ‘just compensation,’ the statute must be similarly construed because no act of the Legislature can take away what the Constitution has given.” Thus, the Legislature, through the UCPA or any other statute, cannot lower the constitutional minimum of “just compensation” established by the people who ratified the 1963 Constitution.
In Silver Creek, we recognized that the phrase “just compensation” cannot be interpreted “merely by a careful reading of the phrase.” Indeed, this Court has held that “the whole of art 10, sec 2 has a technical meaning that must be discerned by examining the ‘purpose and history’ of the power of eminent domain.” “Just compensation” falls into the category of words and phrases that is not capable of definition merely by reference to a dictionary. Rather, it is a phrase freighted with constitutional significance in our jurisprudence, specifically in the law of eminent domain. Thus, we concluded in Silver Creek that, as a technical legal term of art, we are required to give the phrase “just compensation” the same meaning given by those sophisticated in the law when 1963 Const, art 10, § 2 was ratified in 1963. However, we cautioned elsewhere that arriving at a fixed meaning of “just compensation” before 1963 is complicated by the reality that in the past this phrase was “a legal term of art of enormous complexity.” The aptness of this observation is self-evident in this case.
The provision of the UCPA at issue in this case is MCL 213.70, which sets out the process for determining fair market value. It was amended by the Legislature in 1996, and the amendment, among other revisions, added subsection 2. This subsection states:
The general effects of a project for which property is taken, whether actual or anticipated, that in varying degrees are experienced by the general public or by property owners from whom no property is taken, shall not be considered in determining just compensation. A special effect of the project on the owner’s property that, standing alone, would constitute a taking of private property under section 2 of article X of the state constitution of 1963 shall be considered in determining just compensation. To the extent that the detrimental effects of a project are considered to determine just compensation, they may be offset by consideration of the beneficial effects of the project.
MCL 213.70(2) separates the “general effects of a project for which property is taken” from a “special effect of the project” on the property that on its own would constitute a taking under art 10, § 2. Under the statute, “general effects” damages are “not [to] be considered in determining just compensation.”
In this case, if the statute were applied to the partial taking of defendants’ property, defendants could not be compensated for the “dust, dirt, noise, vibration, and smell” created by M-6. These are general effects of the construction of M-6 that, in varying degrees, are experienced by the general public and property owners from whom no property has been taken. For example, any one of defendants’ neighbors whose property was not taken to construct M-6 would experience the same general effects of M-6 as defendants. We must decide whether the Legislature’s exclusion of these “general effects” damages contravenes the constitutional minimum of just compensation established by Const 1963, art 10, § 2.
The Court of Appeals described the basic rule of damages in a partial taking as the value of the property taken plus the remaining portion’s decrease in value that is attributable to the use made of the property taken. It held that the decrease or diminution in value of the remaining portion is determined by calculating the difference between the fair market value of the remaining property before and after the taking. In order to do this, the panel held that this Court’s precedent required that “ ‘any evidence that would tend to affect the market value of the property as of the date of condemnation is relevant ... .’ ” The Court of Appeals concluded that this broad, inclusive method of calculating the remaining parcel’s diminished fair market value must take into consideration the general effects of the project for which the property was taken.
Defendants and their supporting amici curiae like wise focus their attention on language in this Court’s decisions before 1963 indicating that in a partial taking the “decreased value of the residue of the parcel on account of the use made of the land taken is also allowable as compensation.” Under this pre-1963 formula for damages in a partial taking, defendants contend that the “use made of” their condemned strip of land was the construction of the M-6 highway, which included the Kenowa Avenue overpass. Defendants reason that they are entitled to compensation for the decreased value of the remainder of their property attributable to the dust, noise, vibration, smell, and similar disturbances created by M-6.
The Court of Appeals also held that there is a distinction between liability in inverse condemnation cases and damages in direct, partial condemnation cases. In Spiek v Dep’t of Transportation, this Court held that “[t]he right to just compensation, in the context of an inverse condemnation suit for diminution in value caused by the alleged harmful affects [sic] to property abutting a public highway, exists only where the landowner can allege a unique or special injury, that is, an injury that is different in kind, not simply in degree, from the harm suffered by all persons similarly situated.” The Court of Appeals declined to apply the rule of Spiek to this case because it held that Spiek was carefully limited to inverse condemnation cases where there had been no direct or physical invasion of the landowner’s property. In addition, the panel declined to follow the reasoning of State v Schmidt, a Texas Supreme Court case cited in Spiek that rejected the argument that damages are different in inverse and direct condemnation cases, noting that many other states had reached a conclusion opposite the Texas Supreme Court.
The Court of Appeals also distinguished In re Petition of State Hwy Comm’r (State Hwy Comm’r v Busch), which MDOT claimed was crucial to grasping the pre-1963 understanding of “just compensation.” The Busch Court, citing Campbell v United States, stated that “[t]he general rule applied when part of a parcel of land is condemned is that just compensation does not include the diminution in the value of the remainder caused by the acquisition of the adjoining lands of others for the same undertaking.” The Busch Court held that property owners could not be compensated for the effect of the taking of their neighbors’ property on their remaining parcel even though the property was taken for the same road construction project. The Court of Appeals below distinguished Busch on the basis that defendants were not directly claming damages from the taking of their neighbor’s land but, rather, for the diminution of value to their own property caused by the partial taking of their property for the M-6 freeway.
After considering the Court of Appeals’ reasons for ruling that MCL 213.70(2) is unconstitutional, we are persuaded that it erred. First, the rule on which the Court of Appeals relied is no more than a statement of general principles. It is true that a guiding principle when awarding just compensation in a condemnation suit is to “neither enrich the individual at the expense of the public nor the public at the expense of the individual” but to leave him “in as good a position as if his lands had not been taken.” Thus, in a partial taking, the formula to calculate the fair market value of the remainder parcel must account for the fact that damages will vary from case to case, depending on the unique circumstances of each taking. Restoring the individual to his position before the taking will require a flexible, case-by-case approach to damages.
However, mere recitation of these principles calling for flexibility does not settle the matter. The particular question posed here is whether those sophisticated in the law in 1963 relied on these principles to include “general effects” damages in a just-compensation award. The reality is that there is a paucity of pre-1963 Michigan caselaw that definitively establishes a clear answer to this question. A pregnant fact acknowledged by the parties is that there is no indication in any reported Michigan case that “general effects” damages were ever awarded before 1963.
Defendants and their supporting amici curiae cite numerous cases that they argue support the proposition that “general effects” damages were compensable before 1963. These cases state many of the general principles for awarding just compensation in a partial taking cited by the Court of Appeals that we have already mentioned. However, none of these cases explicitly endorses the principle that “general effects” damages are compensable in a partial taking. Instead, these cases appeared to focus on diminution or severance damages that were specific and unique to the remaining parcel, and not effects that were felt generally by the public.
One amicus curiae supporting defendants cites State Hwy Comm’r v Schultz, as an example of “general effects” damages being awarded in a partial taking case before 1963. According to this Court’s opinion, $300 of a $64,042.37 just-compensation award was attributed to “noise and disturbance.” The amicus argues that this brief mention of an award for “noise and disturbance” proves that before 1963 “general effects” damages were awarded routinely in partial takings.
We disagree with amicus that this is compelling evidence on which we could rest a conclusion that MCL 213.70(2) is unconstitutional. Schultz focused on the question whether the just-compensation award was erroneous because the jury took into consideration the existence of sand and gravel deposits on the land when the property had been used for farming purposes. This Court affirmed the award on the ground that it was supported by the evidence that the highest and best use of the property was for a gravel pit and that the amount and value of the available mineral deposits were relevant factors for the jury to consider. Certainly the loss of the value of the mineral deposits was a specific injury to the property. Schultz is a fragile foundation on which to rest the alleged unconstitutionality of MCL 213.70(2).
Second, we disagree with the Court of Appeals interpretation of Spiek. The Court of Appeals relied on two scholarly articles to conclude that liability in inverse condemnation and direct, partial condemnation cases is necessarily different and that the rule of damages from Spiek must be limited to the former. One problem with the panel’s conclusion is that Spiek likely addressed only inverse condemnation claims because that was the specific claim brought by the plaintiff. That the holding in Spiek was limited in that respect does not mean that those sophisticated in the law before 1963 applied a separate rule of damages for an actual, partial taking. As noted below, there is some counter-indication that the rule of damages in Spiek was not limited only to inverse condemnation cases.
There is no dispute that an inverse condemnation claim and an actual, partial taking differ in form. An inverse condemnation claim is not initiated by the government entity under the UCEA because it has not appropriated a property interest for public use. Thus, the property owner must establish that the government’s actions amounted to a constitutional “taking” of property. In an actual taking, liability for the taking has been conceded and the question is one of damages or “just compensation.” However, despite these formal differences, our review of pre-1963 caselaw does not suggest that “general effects” damages were treated differently in an actual, partial taking and an inverse condemnation case. Indeed, as discussed below, there is some evidence that this Court applied principles from inverse condemnation to direct, partial takings cases before the 1963 Constitution was ratified. Thus, although we do not necessarily rely on Spiek to uphold MCL 213.70(2), we disagree with the Court of Appeals conclusion that the rule of Spiek does not apply to partial takings.
Further, unlike the Court of Appeals, we find Busch, supra, helpful in answering whether MCL 213.70(2) is constitutional. Busch was decided before 1963 and certainly informed the understanding of those sophisticated in the law. The Busch Court denied the property owners compensation for “the diminution in value of the remainder caused by the acquisition of the adjoining lands of others for the same undertaking.” Busch reflected a commonsense limitation on damages in a partial taking that a property owner is not entitled to consequential damages arising from the taking of another individual’s property. Thus, to the extent that MCL 213.70(2) precludes “general effects” damages in a partial taking of defendants’ property arising from the acquisition of neighboring property for the M-6 freeway, it is entirely consistent with the pre-1963 common understanding of “just compensation” informed by Busch.
We find additional guidance from this Court’s plurality decision in State Hwy Comm’r v Watt, an instance where a particular type of “general effect” damage— diminution in value attributable to the diversion of traffic — was held to be not compensable under the 1908 Constitution. In Watt, the state highway commission took a strip of land on the east side of Watt’s property for highway purposes. The existing highway ran along the west side and northwest corner of Watt’s property where he operated a motel. Watt argued that as part of his just compensation he was entitled to the diminution in value of his remaining property attributable to the diversion of traffic from the old US-131, and from his motel, to the new US-131. The trial court declined to confirm the award that had compensated Watt for traffic diversion. This Court affirmed the trial court in a four-to-three decision. Chief Justice KAVANAGH authored the opinion, joined by Justices SMITH and O’HARA, holding that damages for diversion of traffic were not compensable in a partial taking. The opinion, quoting at length from a dissenting opinion in a Kansas Supreme Court case that decided a similar issue, concluded that “ ' "[t]he change in traffic flow in such a case is the result of the exercise of the police power or the incidental result of a lawful act, and is not the taking or damaging of a property right.” ’ ”
Justice KAVANAGH’s opinion also addressed the possibility that the state highway commission would later build a cul-de-sac near Watt’s property and potentially cut off highway access. Regarding whether the possible construction of the cul-de-sac would presently entitle Watt to additional damages, Justice KAVANAGH wrote:
The Fifth Amendment to the Federal Constitution and article 13 of the Michigan Constitution of 1908, under which appellants here claim a remedy, proscribe the taking of private property without just compensation. Compensable injury arises under those provisions, therefore, only from a taking of property rights.
From a reading of the cases dealing with the problem, it is observed that the property-right injury to be found and redressed in cul-de-sac situations is the entire or material cutting-off of the access, of an abutting owner, to the general system of highways. As will be noted later, it is only on that basis that an abutting owner can properly make the necessary claim of special damage, i.e., damage not incurred, in the same, greater or lesser degree, by the general public.[ ]
In view of defendants’ claim that those sophisticated in the law before 1963 uniformly believed that “general effects” damages were compensable in a partial taking, Watt undercuts that thesis. Moreover, there is an important similarity between a claim of damages for the diversion of traffic and a claim of damages for the “dust, dirt, noise, vibration, and smell” caused by a highway. Both are “general effects” damages felt by the general public that are incidental to the building of a highway.
Furthermore, in the absence of strong primary authority establishing a right to “general effects” damages in partial takings before 1963, a useful secondary source to which we turn to understand the pre-1963 meaning of “just compensation” is the scholarly writings of our venerable Michigan Supreme Court Justice Thomas M. Cooley. Justice Cooley noted the general rule that when the government undertakes a public work, there is no right to compensation if no legal right has been appropriated in the process:
It is a general rule, however, that the mere fact that one suffers incidental loss in consequence of the undertaking and construction of a public work, where nothing to which he has a legal right is actually appropriated, can never give him a claim to compensation.[ ]
Thus, according to Justice COOLEY, where there is such “incidental loss,” it is damnum absque injuria — loss without injury.
However, in a partial taking, Justice COOLEY wrote that “just compensation”
may perhaps depend on the effect which the appropriation may have on the owner’s interest in the remainder, to increase or diminish its value, in consequence of the use to which that taken is to be devoted, or in consequence of the condition of the condition in which it may leave the remainder in respect to convenience of use . .. ,[ ]
Justice COOLEY elaborated on this rule of damages, noting that those benefits or damages felt generally by the public were excluded from the calculation. He wrote that “mere incidental injuries or benefits, like those suffered and received by the community at large,. . . are to be excluded altogether from the computation.” Similarly, in Constitutional Limitations, Justice COOLEY stated that
there must be excluded from consideration those benefits which the owner receives only in common with the community at large in consequence of his ownership of other property, and also those incidental injuries to other property, such as would not give to other persons a right to compensation, while allowing those which directly affect the value of the remainder of the land not taken; such as the necessity for increased fencing, and the like.[ ]
These are, of course, only secondary authorities concerning the scope of damages recoverable for a partial taking. However, given the pervasive, perennial influence of Justice Cooley’s scholarly work on the development of Michigan law, these passages buttress the inference that those sophisticated in the law before 1963 understood that those “general effects” of a taking felt by the public are not compensable in a partial taking.
The reality is that there is negligible direct pre-1963 caselaw or other evidence that allows one to say with conviction that our ratifiers understood that a taking included recovery of “general effects” damages, while there is some evidence pointing to the opposite conclusion. Given the standard of review we must apply in a constitutional challenge to a statute, we conclude that there is insufficient evidence to overcome the presumption of constitutionality.
V RESPONSE TO THE DISSENT
The essential challenge of the dissent is that “just compensation” is not a term of art but is an ordinary phrase with a “commonsense” understanding — one that before 1963, Michigan constitutions required a jury of freeholders to determine. The dissent obviously assumes that, because a jury is given the responsibility to apply a legal standard to a set of facts, the jury also has unfettered discretion to define that standard. This thesis cannot be squared with how juries function generally in our judicial system and raises the question whether the dissent believes that any claim of damages, even the most absurd, could be properly excluded from a determination of “just compensation” as a matter of law.
Jurors in our system are instructed on the law; they do not determine the law. Thus, jurors are instructed by the court on the meaning of terms like “reasonable doubt,” “duty,” and “damages” — to name but a few such terms — all of which can be defined by laymen in a “commonsense way” but have legal meanings that diverge from their plain meaning. Thus, a jury cannot manufacture its own definition of “reasonable doubt” or any of the other similar legal constructs that we expect them to apply in any given case. It is not that juries are intellectually incapable of comprehending these concepts. Rather, we are recognizing that these terms and others have acquired technical, legal meanings over time, which a jury cannot abandon. Such is the case with “just compensation.”
While the dissent purports to revere Justice COOLEY, it assiduously ignores Justice COOLEY on this critical point. He stressed that the “common understanding” of a phrase in some cases is its technical meaning:
[I]t must not be forgotten, in construing our constitutions, that in many particulars they are but the legitimate successors of the great charters of English liberty, whose provisions declaratory of the rights of the subject have acquired a well-understood meaning, which the people must be supposed to have had in view in adopting them. We cannot understand these provisions unless we understand their history; and when we find them expressed in technical words, and words of art, we must suppose these words to be employed in their technical sense. When the constitution speaks of an ex post facto law, it means a law technically known by that designation; the meaning of the phrase having become defined in the history of constitutional law, and being so familiar to the people that it is not necessary to employ language of a more popular character to designate it. The technical sense in these cases is the sense properly understood, because that is the sense fixed upon the words in legal and constitutional history where they have been employed for the protection of popular rights.[ ]
The dissent’s position is also internally inconsistent. First, it endorses the “integral and inseparable” method of the Court of Appeals for determining whether “general effects” damages should be compensated, without acknowledging that that test would not place the property owner whose property is “separable” from the larger project in the same position he was in prior to the taking. This result is inconsistent with the dissent’s guiding principle for awarding “just compensation.” Further, the dissent fails to comment on the illogical outcome that results from its position when neighboring property owners suffer the same “general effects” damages but only one has experienced a partial taking. Presumably, only the property owner who suffered the partial taking, of even the smallest portion of property, can be compensated for “general effects” damages while the next door neighbor, suffering the same “general effects” damages, gets nothing. Certainly that result is an affront to principles of common sense and equity, over which the dissent claims exclusive domain, because it leaves one property owner in a better position than his neighbor for a common harm. Yet that is the result the dissent’s position would compel by striking down MCL 213.70(2).
VI. CONCLUSION
Our decision is not a reflection of what this Court believes “just compensation” should encompass in a partial taking. Rather, we have been presented with a question of constitutional law requiring that we ascertain the common understanding of those sophisticated in the law before 1963 believed this highly technical term of art to mean. Having done so, we have discovered no clear indication that “just compensation” included “general effects” damages before the ratification of our 1963 Constitution and thus hold that MCL 213.70(2) is constitutional. When the constitution places no limit on legislative prerogative, our Legislature is free to act to effectuate the policy of this state. Consequently, if it is desired that property owners in a partial taking be compensated for “general effects” damages, it is up to our Legislature to enlarge by statute the scope of “just compensation.”
We reverse the Court of Appeals judgment and remand to the circuit court for further proceedings consistent with this decision.
Taylor, C.J., and Corrigan and Markman, JJ., concurred with Young, J.
MCL 213.51 et seq.
MCL 213.70(2).
MDOT also named Byron Center State Bank and Chase Mortgage as defendants. However, they were later dismissed with prejudice by the circuit court’s May 2004 final judgment, which stated that these parties “shall not receive any compensation or other amounts arising out of MDOT’s acquisition of property in this proceeding.” They are not part of this appeal.
Dep’t of Transportation v Tomkins, 270 Mich App 153, 166; 715 NW2d 363 (2006).
Id.
266 US 368; 45 S Ct 115; 69 L Ed 328 (1924).
Andrews v Cox, 129 Conn 475; 29 A2d 587 (1942); City of Crookston v Erickson, 244 Minn 321; 69 NW2d 909 (1955).
Tomkins, 270 Mich App at 168, quoting Andrews, 129 Conn at 482.
478 Mich 903 (2007). The order granting leave to appeal, in addition to inviting amici to move for leave to file briefs, asked the parties to address:
(1) what was the ratifiers’ common understanding of the phrase “just compensation” when they ratified Const 1963, art 10, § 2, and was it commonly understood that “just compensation” in inverse condemnation cases was different than “just compensation” in direct, partial taking cases; and (2) whether § 20(2) of the Uniform Condemnation Procedures Act, MCL 213.70(2), impermissibly conflicts with this established meaning of “just compensation.” [Id.]
Co Rd Ass’n of Michigan v Governor, 474 Mich 11, 14; 705 NW2d 680 (2005); Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).
Perry v Golling Chrysler Plymouth Jeep, Inc, 477 Mich 62, 65; 729 NW2d 500 (2007).
In re Certified Question (Kenneth Henes Special Projects Procurement v Continental Biomass), 468 Mich 109, 113; 659 NW2d 597 (2003), quoting Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993).
In re Certified Question, 468 Mich at 113.
Phillips v Mirac, Inc, 470 Mich 415, 422; 685 NW2d 174 (2004).
Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004).
Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 376; 663 NW2d 436 (2003).
Id. at 374.
Every Michigan Constitution has included a provision requiring just compensation for a taking. While Michigan was still a territory, its 1835 Constitution stated that “[t]he property of no person shall be taken for public use, without just compensation therefor.” Const 1835, art 1, § 19. This provision carried forward into statehood. See Const 1850, art 18, § 14 (“The property of no person shall be taken for public use without just compensation therefor.”); see also Const 1908, art 13, § 1 (“Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law.”).
Under the 1850 and 1908 constitutions, the necessity of the taking and the compensation were to be determined by a jury of 12 freeholders. The 1908 Constitution also allowed for a panel of commissioners to resolve these questions. See, e.g., Const 1850, art 18, § 2 (“When private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the state, shall be ascertained by a jury of twelve freeholders... or by not less than three commissioners, appointed by the court of record, as shall be prescribed by law ....”); Const 1908, art 13, § 2 (“When private property is taken for the use or benefit of the public, the necessity for using such property and the just compensation to be made therefor, except when to be made by the state, shall be ascertained by a jury of 12 freeholders residing in the vicinity of such property, or by not less than 3 commissioners appointed by a court of record as shall be prescribed by law.... ”). This language was not carried forward into Const 1963, art 10, § 2.
Also, Michigan voters approved a 2006 ballot proposal that amended Const 1963, art 10, § 2. However, the amendment, passed after the condemnation suit was initiated in this case, is not applicable to the constitutional question presented here.
MCL 213.55(1).
Silver Creek, 468 Mich at 374.
Id. at 375.
Hathcock, 471 Mich at 471 (emphasis in original).
Silver Creek, 468 Mich at 376.
Hathcock, 471 Mich at 470.
The statute also permits the detrimental effects of the project to be offset by the project’s beneficial effects to determine just compensation.
Tomkins, 270 Mich App at 159, citing In re Widening of Fulton Street, 248 Mich 13, 20-21; 226 NW 690 (1929).
Tomkins, 270 Mich App at 159, citing Dep’t of Transportation v Sherburn, 196 Mich App 301, 305; 492 NW2d 517 (1992).
Tomkins, 270 Mich App at 159-160, quoting Dep ’t of Transportation v VanElslander, 460 Mich 127, 130; 594 NW2d 841 (1999) (emphasis in original).
In re Widening of Michigan Ave, Roosevelt to Livernois (Parcel 68), 280 Mich 539, 548-549; 273 NW 798 (1937) (citations omitted); see also In re Widening of Bagley Avenue, 248 Mich 1, 5; 226 NW 688 (1929).
See Electro-Tech, Inc v H F Campbell Co, 433 Mich 57, 88-89; 445 NW2d 61 (1989) (“An inverse or reverse condemnation suit is one instituted by a landowner whose property has been taken for public use ‘without the commencement of condemnation proceedings.’ Under Michigan law, a ‘taking’ for purposes of inverse condemnation means that governmental action has permanently deprived the property owner of any possession or use of the property.”) (Internal citation omitted.)
456 Mich 331, 348; 572 NW2d 201 (1998).
Tomkins, 270 Mich App at 162-163.
867 SW2d 769 (Tex, 1993).
Tomkins, 270 Mich App at 164-166.
326 Mich 183; 40 NW2d 111 (1949).
266 US 368, 45 S Ct 115, 69 L Ed 328 (1924). In Campbell, the United States government took possession of 1.81 acres belonging to Campbell’s roughly 70-acre parcel that would be part of a proposed federal nitrate plant. The government took possession of a number of parcels to accumulate the needed 1,300 acres for the plant. After erecting a few buildings and other miscellaneous structures, the government abandoned the project. The Supreme Court held that Campbell was not entitled to damages to his remaining property that were due to the acquisition of adjoining lands belonging to others. It held that “[t]he rule supported by better reason and the weight of authority is that the just compensation assured by the Fifth Amendment to an owner, a part of whose land is taken for public use, does not include the diminution in value of the remainder caused by the acquisition and use of adjoining lands of others for the same undertaking.” Id. at 372.
Busch, 326 Mich at 189.
Id. at 188.
Tomkins, 270 Mich App at 163. The Court of Appeals refers to Busch as In re Ziegler.
In re State Hwy Comm’r, 249 Mich 530; 229 NW 500 (1930).
The Court of Appeals also cited caselaw decided by this Court and the Court of Appeals after 1963, which is not helpful to determining the ratifiers’ common understanding except to the extent that the cases cited and relied on pre-1963 caselaw.
This Court has held that the Address to the People and the constitutional convention debates are at times relevant to determining the meaning of particular provisions to the ratifiers. Studier v Michigan Pub School Employees’ Retirement Bd, 472 Mich 642, 655-656; 698 NW2d 350 (2005); People v Nutt, 469 Mich 565, 574; 677 NW2d 1 (2004). The Address to the People stated that the decision to eliminate the procedures for eminent domain proceedings found in the 1908 Constitution “clearly indicates that proper procedures for the acquisition of private property for public use are to be determined by the legislature and that compensation for such property must be determined in proceedings in a court of public record.” In addition, the convention delegates’ rejection of a proposal to broaden the scope of eminent domain to property that was either “taken or damaged” suggests that the ratifiers did not intend to alter the state of Michigan’s pre-1963 eminent domain jurisprudence. 2 Official Record, Constitutional Convention 1961, pp 2580-2602. However, neither of these points sheds much light on the question whether “general effects” damages fall within the pre-1963 established definition of “just compensation.” Thus, resort to either of these interpretive aids is of limited value.
One amicus suggests the absence of caselaw on this question is due to the fact that, under earlier constitutions and condemnation statutes, the condemning agency was permitted to discontinue the taking before confirmation of the verdict. See Detroit v Empire Dev Co, 259 Mich 524, 526; 244 NW 150 (1932). If the just-compensation award was excessive, it was routine practice, according to amicus, for the condemning agency simply to walk away or find another way to accomplish the project. Thus, amicus speculates that an excessive award, particularly one involving “general effects” damages, would rarely be the subject of an appeal. However, in the absence of any reported pre-1963 cases explicitly addressing the availability of “general effects” damages, a contrary conclusion that “general effects” damages were never recoverable is equally plausible.
See, e.g Port Huron & S-W R Co v Voorheis, 50 Mich 506; 15 NW 882 (1883); Barnes v The Michigan Air Line R, 65 Mich 251; 32 NW 426 (1887); Grand Rapids, L & D R Co v Chesebro, 74 Mich 466; 42 NW 66 (1889); Comm’rs of Parks and Boulevards of Detroit v Moesta, 91 Mich 149; 51 NW 903 (1892); Comm’rs of Parks and Boulevards of Detroit v Chicago, D & C Grand Trunk Junction R Co, 91 Mich 291; 51 NW 934 (1892); Fitzsimons & Galvin, Inc v Rogers, 243 Mich 649; 220 NW 881 (1928); Johnstone v Detroit, GH & M R Co, 245 Mich 65; 222 NW 325 (1928); In re Widening of Bagley Avenue, 248 Mich 1; 226 NW 688 (1929); In re State Hwy Comm’r, 256 Mich 165, 239 NW 317 (1931); In re Dillman, 256 Mich 654; 239 NW 883 (1932); In re Widening of Michigan Avenue, Roosevelt to Livernois (Parcel 68), 280 Mich 539; 273 NW 798 (1937); In re Widening of Michigan Avenue (Rott’s Appeal), 299 Mich 544; 300 NW 877 (1941); In re Grand Haven Hwy, 357 Mich 20; 97 NW2d 748 (1959); State Hwy Comm’r v Eilender, 362 Mich 697; 108 NW2d 755 (1961).
For instance, in Voorheis, 50 Mich at 512-513, this Court set aside a just-compensation award that did not take into consideration the effect of the partial taking on the remainder of the owner’s homestead where the homestead consisted of both the lot subject to the taking and several contiguous lots from which no property was taken. In Barnes, 65 Mich at 253, this Court held that landowners could not file a nuisance action based on a taking of property for which they had already received just compensation where the railroad took no action inconsistent with the original purpose of the taking. In Moesta, 91 Mich at 155, we held that the property owner was entitled to recover for loss occasioned by the interruption of its business. In Chicago, D & C, 91 Mich at 293, we held that the question whether land used for warehouse purposes was less valuable due to the taking should have been submitted to the jury. In Johnstone, 245 Mich at 84-85, this Court held that where a taking violates or destroys a negative easement, the landowner is entitled to nominal damages for destruction of the easement and diminishment in value of the premises as a result of the use for which the property is taken. In In re Bagley Ave, 248 Mich at 6-7, we held that the jury was properly instructed that it could award damages to reconstruct the remaining portions of buildings partially taken by the city. In In re Widening of Michigan Avenue, 280 Mich at 551-552, this Court upheld a just-compensation award that was given in part to a lessee of the condemned property. In In re Grand Haven Hwy, 357 Mich at 26-32, this Court upheld a just-compensation award that took into account that the property owner was forced to move its entire facility to a new location as a result of the taking.
In short, all these cases were either inapposite to the issue in this case or they reviewed just-compensation awards that did not include “general effects” damages but, rather, included damages that were specific and unique to the property subject to the partial taking.
370 Mich 78; 120 NW2d 733 (1963).
Id. at 83.
Also, defendants’ reliance on pre-1963 language that property owners in a partial taking are entitled to compensation for the “use made of the land taken” does not prove that just compensation for that use would include “general effects” damages. The “use made of the land taken” could cause damage to the remaining property that is unique to that property and has nothing to do with general effects felt by the public.
Pesick, Eminent domain: Calculating just compensation in partial taking condemnation, 82 Mich B J 37-38 (2003) (citing 2A Nichols on Eminent Domain § 6.08[2] [rev ed 1993] and Silver Creek to conclude that “any attempt to employ [inverse condemnation’s rule of liability in an actual taking] conflicts with the established meaning of constitutional ‘just compensation’ that requires property owners to be compensated for the difference in a property’s value before and after the taking, and runs headlong into the Michigan Supreme Court’s requirement that just compensation must take into account ‘all factors relevant to market value.’ ”); Ackerman & Yanich, Just compensation and the framers’ intent: A constitutional approach to road construction damages in partial taking cases, 77 U Det Mercy L R 241, 254 (2000) (asserting that “[b]ecause the court in Spiek was careful to limit its holding to cases not involving a direct or physical invasion of a landowner’s property, the ruling has no applicability to eminent domain cases involving partial takings. Thus, Spiek does not abrogate the general rule regarding recovery of severance damages so as to require that damages be ‘different in kind’ from those suffered by other nearby landowners in order to be compensable.”). The Ackerman article cited two pre-1963 decisions, Rogers, supra, and Fulton Street, supra, for the general rule of damages in partial taking cases. None of these supports a clear basis for recovery of “general effects” damages in partial takings before 1963.
Also, the panel’s observation that a number of other states have recognized a distinction between damages in these two types of cases, and its decision to favor those jurisdictions, is unhelpful where other states’ eminent domain provisions are sometimes worded differently. For instance, the Court of Appeals cited City of Crookston v Erickson, 244 Minn 321, 325; 69 NW2d 909 (1955), for the rule that “it is sufficient that the damage is shown to have been caused by the taking of part of [the] property even though it is damage of a type suffered by the public as a whole.” However, Minnesota’s Constitution states in article 1, § 13, that “private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.” (Emphasis added.) Const 1963, art 10, § 2 does not require just compensation where private property is destroyed or damaged without a taking. As noted in n 38, supra, the delegates to the 1961 Constitutional Convention declined to add this type of broad language to Michigan’s eminent domain provision.
State Hwy Comm’r v Watt, 374 Mich 300, 314; 132 NW2d 113 (1965) (partial taking case citing Buhl v Fort Street Union Depot Co, 98 Mich 596 [1894], an inverse condemnation case).
Busch, 326 Mich at 189.
374 Mich 300; 132 NW2d 113 (1965).
The Ackerman article cited by the Court of Appeals acknowledged Watt as a case where this Court held that diminution in value due to traffic diversion was not compensable but limited it as the sole exception to the rule.
Justice Black concurred in the result. Thus, although a majority of this Court agreed on the result, only three justices agreed on a rationale. Justice Kelly authored a dissenting opinion joined by Justices Dethmers and Souris. Justice Adams did not participate.
Watt, 374 Mich at 311, quoting Riddle v State Hwy Comm, 184 Kan 603, 620; 339 P2d 301 (1959), quoting State, ex rel Merritt v Linzell, 163 Ohio St 97, 104; 126 NE2d 53 (1955).
Watt, 374 Mich at 312 (emphasis added).
Although Watt was a plurality decision, its holding that diversion of traffic is not an element of damages in condemnation proceedings was reaffirmed hy a clear majority of this Court in State Hwy Comm’r v Gulf Oil Corp, 377 Mich 309, 315; 140 NW2d 500 (1966), a case decided under the 1963 Constitution.
1 Cooley, The General Principles of Constitutional Law in the United States of America (1880), p 337.
Id. at 338.
1 Cooley, Constitutional Limitations (1st ed), p 565.
General Principles, pp 341-342 (citations omitted).
Constitutional Limitations, pp 569-570 (citations omitted).
See also Silver Creek, 468 Mich at 375 n 10, and accompanying text (rejecting Justice Weaver’s argument that “just compensation” is “obvious on its face”).
Presumably, the dissent’s view would preclude instructing a jury that “just compensation” does not include emotional damages. Moreover, the dissent’s position cannot be squared with earlier Michigan caselaw that has placed limits on “just compensation” in partial takings, such as Busch, supra, and Watt, supra.
Constitutional Limitations, pp 59-60.
In Spiek, 456 Mich at 332-333, a unanimous opinion signed by the dissenting justices in this case, this Court held that “noise, dust, vibration, and fumes experienced by owners of property along an interstate freeway” do not constitute a compensable taking unless “the damages incurred are unique, special, or peculiar, or in some way different in kind or character from the effects incurred by all property owners who reside adjacent to freeways or other busy highways.” Damages from the type of harm suffered by all persons adjacent to a highway are not recoverable even when the plaintiff suffers to a greater degree than other landowners; the harm must be different in character to be compensable. Id. at 339. The dissent would create an exception to Spiek and permit a property owner who suffers a partial taking to recover these exact types of “general effects” damages, even though adjacent property owners who have not experienced a partial taking but suffer the same general effects cannot recover damages. We are not, as the dissent suggests, upset that this outcome would be “unfair.” Post at 218 n 11. Rather, we are simply noting that the dissent’s constitutional exegesis is not self-evident, a priori, or intuitive, as it portrays the dissent. Its analysis, while framed as an appeal to “common sense,” is anything but, as the dissenting justice’s joinder in Spiek amply demonstrates. | [
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MARKMAN, J.
We heard oral argument on defendant employer’s application for leave to appeal to consider whether the burden-shifting analysis articulated by the Court of Appeals relieved claimant of the burden of proving that he was disabled from all jobs paying the maximum wages within his qualifications and training, as required by Sington v Chrysler Corp, 467 Mich 144; 648 NW2d 624 (2002). A workers’ compensation claimant bears the burden of proving that he has a disability under MCL 418.301(4), and that burden does not shift to the employer. MCL 418.851. The claimant must show more than a mere inability to perform a previous job. Once the claimant proves that he is disabled from all jobs within the claimant’s qualifications and training, the burden of production shifts to the employer contesting the claim to come forward with evidence to challenge the claimant’s proof of disability, and the employer is entitled to discovery before the hearing to enable the employer to meet this production burden. Here, claimant did not sustain his burden of proving by a preponderance of the evidence that he was disabled from all jobs within his qualifications and training. However, given the inconsistent application of the Sing-ton standard in the past, we believe that it would be equitable to allow claimant an opportunity to present his proofs with the guidance provided by this opinion. Accordingly, we reverse the Court of Appeals in part and remand the matter to the magistrate for a new hearing consistent with the procedures set forth in this opinion.
I. FACTS AND PROCEDURAL HISTORY
Claimant was a forklift driver for the employer from 1971 to 1999. During his last five years, claimant drove a forklift for about five hours a day and performed dispatch work by entering automotive part numbers on a keyboard or relaying information over the telephone the rest of the day. Claimant increasingly felt pain in his neck and arms until he could no longer work in the fall of 1999. Claimant’s physician opined that claimant’s physical activity at work caused repetitive trauma to his cervical spine and aggravated his existing rheumatoid arthritis. On February 15, 2000, claimant had surgery on his cervical spine.
Claimant filed a petition for workers’ compensation benefits based on a cervical spine disability. Both experts agreed that claimant was totally disabled from his job, but the employer’s expert asserted that the sole cause of the disability was claimant’s pre-existing rheumatoid arthritis. The magistrate granted claimant an open award of benefits, relying on Haske v Transport Leasing, Inc, Indiana, 455 Mich 628, 662; 566 NW2d 896 (1997), which defined “disability” as an injury that prevents the employee from performing any single job within his qualifications and training. The Workers’ Compensation Appellate Commission (WCAC) affirmed the finding that claimant’s disability was work-related, but remanded the case to the magistrate for reconsideration of the disability issue under the standard set forth in Sington, which overruled Haske during the pendency of this case.
Before the remand hearing, the employer filed a motion to compel claimant to submit to an interview by the employer’s vocational rehabilitation counselor, but the magistrate denied the motion. At the remand hearing, the employer’s vocational expert stated that he could not testify with regard to claimant’s wage-earning capacity because he needed to complete a ‘transferable-skills’ analysis but had not met with claimant and had only been retained four days before the hearing. Defense counsel requested an adjournment or continuance to allow the vocational expert to perform the analysis. The magistrate denied the employer’s motion to adjourn because the employer had failed to provide its expert with any of the information already in the employer’s possession.
At the remand hearing, claimant testified that he had graduated from high school but had no vocational training. Claimant attended college for brief periods both before and during his employment with the employer, but did not obtain a degree or certification. He had no typing or computer skills, and his only jobs before working for the employer consisted of driving a forklift for a refrigerator warehouse and stocking supplies and materials. Claimant had not worked since leaving his employment with the employer. The magistrate determined that claimant met the Sington standard for disability and again granted claimant an open award of benefits.
The WCAC affirmed, concluding that a claimant’s qualifications and training consist of the claimant’s previous jobs, how much the jobs paid, and the training the claimant received at those jobs. The WCAC stated that the claimant was not required to show other skills he possessed that might transfer to another job. The WCAC also concluded that the magistrate had not abused his discretion in denying the employer’s request for an adjournment and that the magistrate did not have the authority to compel claimant to meet with the vocational expert.
The employer sought leave to appeal in the Court of Appeals, but also sought bypass review in this Court. We entered an order denying the bypass application, but directing the Court of Appeals to grant the application and issue its opinion by October 1, 2006. The order stayed the WCAC’s opinion and stated that Boggetta v Burroughs Corp, 368 Mich 600; 118 NW2d 980 (1962), remained controlling authority. 475 Mich 875 (2006).
The Court of Appeals, in a split decision, affirmed the award of benefits, but vacated several portions of the WCAC opinion that were inconsistent with Sington and Boggetta, in particular discussions regarding loss of wages and partial disability. Stokes v DaimlerChrysler Corp, 272 Mich App 571, 588, 593-594, 597; 727 NW2d 637 (2006). The Court of Appeals held that suitable work “is not limited to the jobs on the employee’s resume, but, rather, includes any jobs the injured employee could actually perform upon hiring.” Id. at 588. However, the Court of Appeals then decided that the WCAC had not erred in holding that, “as a practical matter, an employee’s proofs will generally consist of the equivalent of the employee’s resume” and held that such proofs “in addition to evidence of a work-related injury causing the disability” were adequate to establish a “prima facie case of disability.” Id. at 589. The “prima facie case,” in turn, was adequate to establish a compensable disability unless the employer established the existence of real jobs within the employee’s training and experience that paid the maximum wage. Id. at 590. The Court of Appeals further stated that a transferable-skills analysis could be relevant in evaluating the claimant’s qualifications and training, but was not required. Id. at 590-591. Finally, the Court of Appeals held that the magistrate possessed the authority to order discovery, but had not abused his discretion in concluding that an interview was unnecessary in this case because the employer had sufficient information in the form of prior testimony to give to the vocational expert. Id. at 593-597.
The dissenting judge would have reversed the WCAC decision and remanded to the magistrate because the latter’s actions “effectively prevented defendant from preparing and presenting a defense,” the inquiry into whether claimant possessed any other transferable skills was improperly limited by considering only claimant’s employment history, and the WCAC erroneously concluded that the employer had the burden of proving the existence of jobs within the claimant’s qualifications and training. Id. at 598-601.
The employer sought leave to appeal in this Court. We directed the clerk to schedule oral argument on whether to grant the application or to take other peremptory action. 477 Mich 1097 (2007).
II. STANDARD OF REVIEW
Findings of fact made by the WCAC are conclusive in the absence of fraud. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 701; 614 NW2d 607 (2000). We review de novo questions of law in final orders of the WCAC. DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300 (2000).
III. ANALYSIS
A. BURDEN OF PROOF TO ESTABLISH A DISABILITY
A claimant under the Worker’s Disability Compensation Act (WDCA) must prove his entitlement to compensation and benefits by a preponderance of the evidence. MCL 418.851; Aquilina v Gen Motors Corp, 403 Mich 206, 211; 267 NW2d 923 (1978). MCL 418.301(4) provides:
As used in this chapter, “disability” means a limitation of an employee’s wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease. The establishment of disability does not create a presumption of wage loss.[ ]
Rea v Regency Olds/Mazda/Volvo, 450 Mich 1201, 1201 (1995), addressed the burden of proof required to establish a disability:
It is not enough for the claimant claiming partial disability to show an inability to return to the same or similar work. If the claimant’s physical limitation does not affect the ability to earn wages in work in which the claimant is qualified and trained, the claimant is not disabled.
Haske, supra at 662, overruled Rea, stating: “Where the employee has carried his burden of proving wage loss, he will, as a practical matter, have proven that he is unable to perform a single job within his qualifications and training, and, therefore, that he is disabled.”
Subsequently, MCL 418.301(4) was examined thoroughly in Sington, supra at 155-159:
As this language plainly expresses, a “disability” is, in relevant part, a limitation in “wage earning capacity” in work suitable to an employee’s qualifications and training. The pertinent definition of “capacity” in a common dictionary is “maximum output or producing ability.” Webster’s New World Dictionary (3d College ed). Accordingly, the plain language of MCL 418.301(4) indicates that a person suffers a disability if an injury covered under the WDCA results in a reduction of that person’s maximum reasonable wage earning ability in work suitable to that person’s qualifications and training.
So understood, a condition that rendered an employee unable to perform a job paying the maximum salary, given the employee’s qualifications and training, but leaving the employee free to perform an equally well-paying position suitable to his qualifications and training would not constitute a disability.
[T]he language of § 301(4) requires a determination of overall, or in other words, maximum, wage earning capacity in all jobs suitable to an injured employee’s qualifications and training.
Sington, supra at 161, continued by explicitly overruling the burden of proof set forth in Haske because it was inconsistent with MCL 418.301(4). At the same time, Sington, supra at 156-157, 161, reinstated the prior ruling of Rea, concluding that the procedure established in Rea was harmonious with the statute.
Thus, the standard for establishing a prima facie case of disability under Sington requires that the claimant prove a work-related injury, and that injury must result in a reduction of the claimant’s maximum wage-earning capacity in work suitable to his qualifications and training. Sington, supra at 155. The WCAC has struggled in consistently applying this standard since Sington.
B. BURDEN OF PROOF SINCE SINGTON
Since Sington, lower courts and tribunals have closely analyzed a claimant’s burden of proof, but the application of that standard has arguably been inconsistent. In Kethman v Lear Seating Corp, 2003 Mich ACO 205, p 6, the WCAC interpreted Sington to require the claimant to demonstrate
1. his work qualifications and training, and what jobs they translate to, and
2. that he has a work-related physical or mental impairment which does not permit him to perform jobs within his qualifications and training and that he has lost wages, and
3. that he is either unable to perform or cannot obtain employment at all those jobs within his qualifications and training that pay his maximum income, which are reasonably available.
The WCAC then stated that, after the claimant proves these three factors, the burden of going forward shifts to the employer, which may present evidence that there were jobs within the claimant’s qualifications, training, and physical limitations that were reasonably available. Id. at 7. This analysis, in our judgment, constitutes an accurate summation of the Sington standard.
In Peacock v Gen Motors Corp, 2003 Mich ACO 274, p 19, the WCAC sought to define “qualifications and training,” stating that this phrase encompasses formal education, work experience, special training, skills, and licenses. In addition, the WCAC described “suitable” jobs as a phrase that did not delimit the universe of potential jobs, but, rather, included “those jobs that afford a plaintiff an opportunity for consideration to be hired because he possesses the minimum experience, education, and skill.” Id. at 20. The WCAC’s definitions, in our judgment, again constitute accurate summations of these terms.
In Riley v Bay Logistics, Inc, 2004 Mich ACO 27, p 7, the WCAC attempted to harmonize existing caselaw by summarizing the Sington factors required to prove a threshold disability as follows:
1. Has plaintiff established the universe of jobs for which he is qualified and trained, and how much do they pay?
2. Has plaintiff established his work related physical or mental impairment, which does not permit him or her to perform jobs within his qualifications and training causing him to lose wages?
3. Has plaintiff established that he was either unable to perform (or obtain because such jobs were not reasonably available) all the jobs within his qualifications and training that pay his maximum wage (for the purpose of establishing his Section 301(4) threshold disability).
The WCAC also concluded that once the claimant establishes a prima facie case of disability, the burden of persuasion shifts to the employer. Id.
Numerous WCAC opinions have quoted the tests set forth in Kethman and Riley. However, these opinions have not always been consistent in their application of the Sington standard. There is a tendency to properly set forth the Sington standard, but then to apply the standard in a manner that effectively constitutes a reversion to Haske. One example is Riley itself, in which Sington was applied in a similar manner to that which occurred in the instant case.
While Riley scrupulously analyzed the Sington standard of proof, the application of that standard was less compelling. For example, the WCAC determined that the claimant’s work-related physical restrictions precluded him from performing each job that he had done in the past. Riley, supra at 6, 8. Taking into account that the claimant had only a ninth-grade education and lacked formal training, the WCAC concluded that the claimant was unable to perform any job within his qualifications. Id. The WCAC then inferred that the claimant had thereby established that he could no longer perform the jobs that paid the maximum wage that may have been available. Id. at 8. However, the WCAC opinion did not discuss the possibility that the claimant possessed any skills that could transfer to other job fields. In addition, there was no evidence presented regarding the availability of other jobs or the claimant’s job search efforts.
The WCAC continued to address the application of the Sington standard in Bacon v Bedford Pub Schools, 2005 Mich ACO 47. The WCAC stated that a claimant carries the burden of establishing which jobs fall within the claimant’s qualifications and training. Id. at 3. However, the WCAC determined that, because of the claimant’s limited education and lack of job training, her testimony regarding her work history, education, and physical condition was sufficient to establish the universe of jobs that the claimant was qualified and trained to perform. Id. at 4, 7. This analysis, we believe, effected a reversion to the Haske standard in the name of Sington.
Similarly, in Higgins v Delphi Automotive Sys, 2005 Mich ACO 136, p 2, the claimant had testified at the hearing regarding her education, work experience, and inability to return to any of her previous jobs because of her work-related injury. The magistrate found that the claimant’s job as an unskilled industrial production worker defined her universe of jobs because her previous jobs had been too remote to be significant. Id. The magistrate concluded that the claimant was disabled because her injury precluded her from performing any of the jobs she had done in the past for the same employer. Id. at 3. The WCAC affirmed, stating that the magistrate had found credible the claimant’s testimony that she was “unable to perform any of the jobs she previously had with defendant.” Id. at 5. Again, the WCAC effectively reverted to the Haske standard in describing the burden of proof.
On the other hand, in Stanton v Great Lakes Employment, 2003 Mich ACO 129, pp 2-3, the claimant’s work-related injury precluded him from being able to perform most of his previous jobs because they required him to stand all day. However, the claimant had applied for an estimated 50 jobs, some of which were the types of jobs he had performed in the past, and others were jobs that he had never performed. Id. at 1-2. The claimant had also contacted the previous employer from which he had earned his highest pre-injury wages but received no offer. Id. at 4. The WCAC determined that the claimant had satisfied the threshold level of disability on the basis of the following factors: the severity of the claimant’s injury; that most of his training and qualifications required significant standing and walking; that the claimant had proved his desire to return to work by applying for an estimated 50 jobs; that the claimant had not been offered employment by his employer or another employer; that the employer had not accommodated the claimant’s physical restrictions; and that no job had been made known to him for which he failed to apply. Id. at 3. The burden of going forward then shifted to the employer, which produced no evidence that there were actual jobs available at the maximum wage within the claimant’s qualifications and training. Id. at 4. Stanton’s application of the Sington standard represented a much more accurate and thorough analysis than the analyses of previous cases.
In Nowak v East Lansing, 2005 Mich ACO 83, pp 1-2, the claimant was a patrol officer who suffered a work-related injury to her knee. The WCAC stated that the magistrate’s finding that the claimant’s work-related injury prevented her from working as a patrol officer did not establish a disability under Sington. Id. at 4. The claimant had continued to work full-time as the head of the parking enforcement unit for the employer and received her full salary. Id. at 4, 8. The WCAC remanded to the magistrate to determine whether the claimant’s new position fell within her qualifications and training, whether it constituted “a regular job for which there was a substantial job market,” and whether the job paid the maximum salary. Id. at 8. If so, then the claimant would not be able to satisfy the definition of “disability” under Sington. Id. Again, this analysis comports with the standard set forth in Sington. If the employer was paying the claimant her full salary because the new job merited that salary, rather than as an accommodation for her injury, then the claimant had not suffered a loss in wage-earning capacity.
Stanton and Nowak represent accurate summations of what is required in the application of Sington to the facts of a WDCA case. A claimant must do more than demonstrate that his work-related injury prevents him from performing a previous job. Sington, supra at 161. It is insufficient to merely articulate the Sington standard and then overlook necessary steps in its application. Rather, MCL 418.301(4) requires that the claimant prove a limitation in “wage earning capacity in work suitable to his qualifications and training resulting from a personal injury or work related disease” to establish a prima facie case of disability. Therefore, the claimant must first prove a work-related injury. Sing-ton, supra at 155. Second, that injury must result in a reduction of the claimant’s wage-earning capacity in work suitable to his qualifications and training. Id. After reviewing the inconsistencies in the WCAC opinions since Sington, we set forth the following practical application of the Sington standard in this case.
First, the injured claimant must disclose his qualifications and training. This includes education, skills, experience, and training, whether or not they are relevant to the job the claimant was performing at the time of the injury. It is the obligation of the finder of fact to ascertain whether such qualifications and training have been fully disclosed.
Second, the claimant must then prove what jobs, if any, he is qualified and trained to perform within the same salary range as his maximum earning capacity at the time of the injury. Sington, supra at 157. The statute does not demand a transferable-skills analysis and we do not require one here, but the claimant must provide some reasonable means to assess employment opportunities to which his qualifications and training might translate. This examination is limited to jobs within the maximum salary range. There may be jobs at an appropriate wage that the claimant is qualified and trained to perform, even if he has never been employed at those particular jobs in the past. Id. at 160. The claimant is not required to hire an expert or present a formal report. For example, the claimant’s analysis may simply consist of a statement of his educational attainments, and skills acquired throughout his life, work experience, and training; the job listings for which the claimant could realistically apply given his qualifications and training; and the results of any efforts to secure employment. The claimant could also consult with a job-placement agency or career counselor to consider the full range of available employment options. Again, there are no absolute requirements, and a claimant may choose whatever method he sees fit to prove an entitlement to workers’ compensation benefits. A claimant sustains his burden of proof by showing that there are no reasonable employment options available for avoiding a decline in wages.
We are cognizant of the difficulty of placing on the claimant the burden of defining the universe of jobs for which he is qualified and trained, because the claimant has an obvious interest in defining that universe narrowly. Nonetheless, this is required by the statute. Moreover, because the employer always has the opportunity to rebut the claimant’s proofs, the claimant would undertake significant risk by failing to reasonably consider the proper array of alternative available jobs because the burden of proving disability always remains with the claimant. The finder of fact, after hearing from both parties, must evaluate whether the claimant has sustained his burden.
Third, the claimant must show that his work-related injury prevents him from performing some or all of the jobs identified as within his qualifications and training that pay his maximum wages. Id. at 158.
Fourth, if the claimant is capable of performing any of the jobs identified, the claimant must show that he cannot obtain any of these jobs. The claimant must make a good-faith attempt to procure post-injury employment if there are jobs at the same salary or higher that he is qualified and trained to perform and the claimant’s work-related injury does not preclude performance.
Upon the completion of these four steps, the claimant establishes aprima facie case of disability. The following steps represent how each of the parties may then challenge the evidence presented by the other.
Fifth, once the claimant has made a prima facie case of disability, the burden of production shifts to the employer to come forward with evidence to refute the claimant’s showing. At the outset, the employer obviously is in the best position to know what jobs are available within that company and has a financial incentive to rehabilitate and re-employ the claimant.
Sixth, in satisfying its burden of production, the employer has a right to discovery under the reasoning of Boggetta if discovery is necessary for the employer to sustain its burden and present a meaningful defense. Pursuant to MCL 418.851 and MCL 418.853, the magistrate has the authority to require discovery when necessary to make a proper determination of the case. The magistrate cannot ordinarily make a proper determination of a case without becoming fully informed of all the relevant facts. If discovery is necessary for the employer to sustain its burden of production and to present a meaningful defense, then the magistrate abuses his discretion in denying the employer’s request for discovery. For example, the employer may choose to hire a vocational expert to challenge the claimant’s proofs. That expert must be permitted to interview the claimant and present the employer’s own analysis or assessment. The employer may be able to demonstrate that there are actual jobs that fit within the claimant’s qualifications, training, and physical restrictions for which the claimant did not apply or refused employment.
Finally, the claimant, on whom the burden of persuasion always rests, may then come forward with additional evidence to challenge the employer’s evidence.
This precise sequence is not rigid, but rather identifies the nature of the proofs that must precede the fact-finder’s decision. Should it become evident in a particular case that a different sequence is more practical, the parties may present their evidence accordingly. However, the magistrate must ensure that all steps are completed in some fashion or another, that all the facts necessary to the determination of the case are presented, that each side has been accorded an adequate opportunity to respond to the other’s proofs, and that the statutory burden of proof is respected. After that point, the magistrate can properly determine whether the claimant has satisfied his obligations under MCL 418.301(4).
We reiterate that MCL 418.851 places the burden of proof on the claimant to demonstrate his entitlement to compensation and benefits by a preponderance of the evidence. This burden of persuasion never shifts to the employer, although the burden of production of evidence may shift between the parties as the case progresses. Because a claimant does not prove a “disability” under MCL 418.301(4) by merely demonstrating the inability to perform any previous jobs, the burden remains on the claimant to demonstrate that there are no available jobs within his qualifications and training that he can perform. Only after the claimant has first sustained this statutory burden of proof does the burden of production shift to the employer to show that there are jobs that the claimant can perform.
C. APPLICATION OF SINGTON STANDARD
The WCAC’s determination that claimant proved a work-related injury is conclusive because there is no evidence of fraud. Mudel, supra at 701. At issue is only whether claimant sustained his burden of proving that his work-related injury effected a reduction of his maximum wage-earning capacity in work suitable to his qualifications and training. Because this is a question of law, we review this issue de novo. DiBenedetto, supra at 401.
We hold that claimant did not satisfy his burden of establishing a disability. Claimant’s demonstration that he could no longer perform his job because of a work-related injury was simply insufficient to establish a “disability” under MCL 418.301(4). In holding to the contrary, we believe that the Court of Appeals and the WCAC short-circuited the requirements of Sington and effected a reversion to Haske.
Under Sington, claimant was required to demonstrate that the injury to his cervical spine limited his maximum wage-earning capacity in work suitable to his qualifications and training. Claimant merely testified regarding his employment and educational background. Claimant presented no evidence that he had even considered the possibility that he was capable of performing any job other than driving a forklift. Likewise, the lower court, the magistrate, and the tribunal seemingly assumed that because claimant had driven a forklift for so many years, that was all he was able to do and that he had acquired no additional skills throughout his life that might translate to other positions of employment. At a minimum, claimant was required by the WDCA to show that he had considered other types of employment within his qualifications and training that paid his maximum wages and that he was physically unable to perform any of those jobs or unable to obtain those jobs. There is no evidence in this case that claimant sought any post-injury employment or would have been willing to accept such employment within the limits of his qualifications, training, and restrictions.
The Court of Appeals opinion effectively relieved claimant of this burden of proof by concluding:
[T]o the extent the WCAC addressed the issue from the standpoint of the production of evidence, and held that as a practical matter, an employee’s proofs will generally consist of the equivalent of the employee’s resume — i.e., a listing and description of the jobs the employee held up until the time of the injury, the pay for those jobs, and a description of the employee’s training and education — and testimony that the employee cannot perform any of the jobs within his qualifications and training paying the maximum wage, the WCAC did not err. By producing such evidence, in addition to evidence of a work-related injury causing the disability, an employee makes a prima facie case of disability — a limitation in the employee’s maximum wage-earning capacity in all jobs suitable to the employee’s qualifications and training. The WCAC did not err in concluding that such a showing is adequate to establish disability in the absence of evidence showing that there is in fact real work within the employee’s training and experience, paying the maximum wage, that the employee is able to perform upon hiring. [Stokes, supra at 589.]
By finding that claimant had met his burden of proof under Sington, in the absence of evidence concerning other jobs for which he might have been qualified, the Court of Appeals suggested strongly that the burden of showing the existence of such jobs is on defendant. It is not.
In this case, claimant did not meet his burden of proving a disability under the WDCA because he only presented evidence of an inability to perform his prior job. However, even if claimant met his burden, the employer was effectively denied the opportunity to rebut claimant’s proofs. The employer’s pre-trial request to have claimant interviewed by the employer’s vocational expert was denied. The employer renewed this request at the remand hearing, but this request was also denied. Because claimant refused to meet with the employer’s vocational expert, and the magistrate was unwilling to compel an interview, the employer’s vocational expert could only provide speculative testimony regarding the effect of claimant’s injury on his wage-earning capacity. The employer’s expert testified that, after interviewing claimant, he would have completed a transferable-skills analysis based on claimant’s profile and work restrictions. Next, the employer’s expert would have contacted potential employers to determine job availability and wages for any jobs falling within claimant’s qualifications, training, and restrictions. The employer requested an adjournment or continuance to allow its expert to perform this analysis, but that request was also denied.
The employer was essentially denied the opportunity to ascertain claimant’s ability to perform other jobs. Not only did the magistrate’s ruling deprive the employer of the ability to present evidence of actual jobs in the marketplace that claimant could have obtained, but the employer was deprived of the ability to assess whether there were any jobs available within its own company that claimant could perform. While the employer was in the best position to know which openings were available within its company, it was not in a position to know all the skills and training claimant had acquired throughout his life that might be compatible with one of the jobs available. The employer was entitled to discovery before the hearing to enable it to meet its burden of coming forward with evidence to rebut claimant’s claim of disability.
IV RESPONSE TO THE DISSENT
The WDCA establishes a careful balance between the employee’s interest in receiving compensation when he suffers a disability as a result of a work-related injury and the employer’s interest in avoiding legally unsound workers’ compensation claims. This Court’s role is to avoid upsetting this bal ance in favor of either party and to ensure that the standards and preconditions for benefits established by the law are maintained. The dissent disregards this law and substitutes its own sense of the balance between the employer and the employee for that of the Legislature.
However, the preferences of the dissent notwithstanding, MCL 418.301(4) requires a workers’ compensation claimant to demonstrate a limitation or reduction in wage-earning capacity. This provision defines a workers’ compensation “disability” to mean a “limitation of an employee’s wage earning capacity in work suitable to his qualifications and training resulting from a personal injury or work related disease.” Thus, to be compensable, something more than an injury is required; specifically, the injury must result in a “limitation of [the] employee’s wage earning capacity” in work for which that employee is suited. Instead of taking this language at face value, the dissent remains wedded to the proposition set forth in Haske, and rejected in Sington, that a claimant may demonstrate a disability merely by showing an inability to perform a single job within his qualifications or training. Whatever the merits of this standard, it is simply not the standard that our Legislature has adopted. In today’s decision, we reiterate Sington’s holding and impose no new requirements on any workers’ compensation claimant. We attempt only to afford guidance in the application of Sington so that future claimants and employers will have the benefit of a consistent and workable standard in assessing their rights and obligations under the law.
Additionally, the employer is entitled to challenge the claimant’s evidence in support of a workers’ compensation claim, it is entitled to have the burden of proof in a workers’ compensation claim remain with the claimant, and it is entitled to secure evidence in its own behalf. In other words, the employer is entitled to avail itself of the law.
The dissent asserts, first, that the majority has indulged in “judicial creativity” to “effectively” require that a claimant provide a transferable-skills analysis in order to evidence a disability. Post at 300-302. Contrary to this assertion, such an analysis does not constitute a requirement on the part of a claimant. While the claimant must present some manner of assessment of alternative employment opportunities to which his qualifications and training might, or might not, translate — precisely to demonstrate that the injury has, in fact, “limited” his wage-earning capacity — this showing need not be in any particular form. The claimant must simply demonstrate in light of his injury that there are no reasonable employment options for avoiding a diminution in wages. If there are such options, a claimant’s wage-earning capacity has obviously not been “limited,” and he is not entitled to benefits; if there are not such options, then the claimant’s wage-earning capacity has equally obviously been limited, and he is entitled to benefits. This all makes eminent sense. There is nothing to be compensated for — at least not in terms of wage reduction — if there has been no reduction in the claimant’s ability to earn his maximum wages. Most people would not find this to be a very problematic understanding; only the dissent sees the sky falling. Sington requires nothing more than the kind of inquiry in which any reasonable person would engage if he became injured outside the workplace and could no longer perform his job. Such a person would naturally inquire, “Is there another job in which I am employable at a similar wage?” Because the dissent considers this too onerous a burden, it would simply read out of the statute any obligation of the claimant to demonstrate a limitation or reduction in his wage-earning capacity. The dissent demonstrates no alternative means by which a reduction in wage-earning capacity can be measured than by actually looking to see whether there are other jobs for which a claimant is qualified.
Claimant here presented no evidence that he considered whether there were any other jobs paying appropriate wages that he could perform, and for this reason his proofs were deficient. Nonetheless, the dissent repeatedly, and confidently, asserts that claimant cannot perform any other job for which he is qualified. It is unclear how the dissent could possibly make this assertion so assuredly. Does the dissent have access to secret information denied the rest of this Court? How can the dissent be certain that claimant cannot perform any other job when neither party has presented evidence to this effect? While the dissent may well be proven correct in the end, there is simply no basis in the present record for making this declaration. There is no way of knowing whether claimant is entitled to benefits until the correct legal standards have been applied, and these standards cannot be applied until the claimant has introduced evidence concerning his wage-earning capacity. Only then can the magistrate render an informed determination of eligibility.
The dissent next asserts that we have indulged in “judicial creativity” to invent the requirement that the employer may be entitled to discovery in attempting to rebut an employee’s claim. Post at 300-301. However, discovery is hardly a novel concept in workers’ compensation proceedings. Rather, it may sometimes be necessary to effect the legislative intent that some, but not all, workplace injuries entitle the worker to benefits; it may sometimes be necessary to enable the magistrate to make a fully informed decision regarding whether a claimant has proven a disability; and it may sometimes be necessary to afford an employer the opportunity to present a meaningful defense.
The dissent asserts that we have “create[d] a new rule of discovery in disability hearings” in holding that the employer has a right to discovery. Post at 307. However, there has been discovery for both sides before the hearing on a regular basis in workers’ compensation proceedings. In O’Brien v Federal Screw Works, 1998 Mich ACO 53, p 4, the WCAC, sitting en banc, affirmed the magistrate’s order directing the defendant to allow a tour of its plant, stating:
In examining the dissenting opinion, we cannot help noting that our colleagues would allow plaintiff to subpoena lab reports, material safety data sheets and any other relevant papers and documents. They would further allow depositions of defendant’s representatives (not specifically provided for in the statute except in the case of medical experts). However, they would not allow the magistrate to order a physical inspection of defendant’s premises, even during the trial (as they define that term), because of a lack of statutory authority.
We cannot agree with this narrow interpretation. As noted, there is no explicit statutory authority which allows for the deposing of lay witnesses. Rather, the common practice of magistrates has long been to err on the side of information rather than ignorance. For this reason, accommodations are regularly made for the taking of lay testimony where necessary (even of plaintiff on occasion) despite the lack of explicit statutory authority.
It is clear that discovery is an integral part of workers’ compensation proceedings that has been consistently upheld by the WCAC. See, e.g., White v Waste Mgt, 2004 Mich ACO 4, p 7 (holding that the employer’s entitlement to a meaningful defense was hindered when the magistrate precluded its vocational expert from meeting with the claimant); Nessel v Schenck Pegasus Corp, 2003 Mich ACO 272, pp 7-8 (stating that, to the extent the claimant or the employer has information regarding the claimant’s qualifications and training, as well as the availability of jobs, such information should be exchanged before the hearing rather than during the hearing); Rochon v Grede Foundries, Inc, 2000 Mich ACO 534, p 6 (upholding the magistrate’s order compelling the answer of more than 200 interrogatories because “magistrates have the power to compel discovery by way of exchange of information, documents, and answers to written interrogatories”).
It is clear from the requirement of MCL 418.301(4) that a claimant prove a limitation' in wage-earning capacity in work suitable to his or her qualifications and training that the Legislature intended to limit the universe of workplace injuries for which a claimant may recover compensation benefits. The only way to give meaningful effect to this intent is to ensure, where appropriate, that evidence is presented regarding the claimant’s qualifications and training, what jobs the claimant is qualified and trained to perform within the maximum salary range, and the claimant’s ability to perform and obtain any of those jobs. Such an analysis will sometimes require a certain amount of discovery in order for a claimant to be able to prove a disability under the statute.
The magistrate cannot make a proper determination of whether a claimant has proved a disability without becoming fully informed of all the relevant facts. The dissent asserts that our holding allowing discovery would deprive the magistrate of his discretion to allow discovery under MCL 418.851 and MCL 418.853. However, a magistrate’s discretion is no more absolute than it is in any other realm of judicial decision-making. In those cases in which a magistrate’s denial of discovery effectively deprives an employer of the right to present a meaningful defense, the magistrate, as a general matter, abuses his discretion.
The statute provides the magistrate with the authority and discretion to extract as much information from the parties as is necessary for the magistrate to make a proper determination in a case. A magistrate cannot make a proper determination without becoming fully informed of the facts regarding a claimant’s limitation in wage-earning capacity in work suitable to his qualifications and training. The disposition of a case on the basis of partial information might well under some circumstances constitute an abuse of discretion, especially when, as here, the restriction on disclosure effectively relieves a claimant of the obligation to satisfy his burden of proof.
The employer has the right to present a meaningful defense. Yet, the dissent would deprive the employer of any right to discovery and, consequently, any practical way of sustaining its burden of production. How would the employer necessarily know what skills or training an employee had obtained in the course of his life that might be compatible with an employment position? How would the employer necessarily be apprised of the myriad factors that would facilitate or impede an employee’s ability to secure an equivalent position in the event of an injury?
The dissent again confidently asserts that the employer here possessed sufficient information, in the form of claimant’s employee file and transcripts from prior hearings, for its expert to conduct a transferable-skills analysis. How does the dissent know this? Certainly, this assertion is inconsistent with the magistrate’s assessment of the testimony that defendant’s vocational expert “would need to meet with plaintiff to perform a transferable job skill analysis.” Moreover, as the dissenting commissioner noted, plaintiff attended college on three separate occasions after he began his employment with defendant, and that this training, however limited, “would be relevant in determining if he had any post injury job qualifications and training ----”
Even more significantly, what are the standards for the dissent’s assertions? If there had been no prior proceedings, would the employer be limited to its personnel files? Must an employer maintain personnel files in specific anticipation of someday having to do a wage-earning capacity analysis on an employee? How does an employer accurately establish wage-earning capacity without access to information from the best-informed person in the world concerning that subject: the claimant himself?
The dissent also alludes to the employer’s duty under MCL 418.319(1) to provide an injured employee with vocational rehabilitation services, but immediately takes issue with the employer’s right to interview the employee in this regard. Just as with the matter of discovery, it is unclear how the dissent would have the employer satisfy its obligation in this regard without affording it some means to access to necessary information. In both of these realms, the dissent prefers to deny the employer any ability to gather information necessary to defend itself.
V CONCLUSION
We reiterate that Sington overruled Haske and, therefore, that the procedures of the workers’ compensation process must reflect this change in the caselaw. The claimant bears the burden of proving a disability by a preponderance of the evidence under MCL 418.301(4), and the burden of persuasion never shifts to the employer. The claimant must show more than a mere inability to perform a previous job. Rather, to establish a disability, the claimant must prove a work-related injury and that such injury caused a reduction of his maximum wage-earning capacity in work suitable to the claimant’s qualifications and training. To establish the latter element, the claimant must follow these steps:
(1) The claimant must disclose all of his qualifications and training;
(2) the claimant must consider other jobs that pay his maximum pre-injury wage to which the claimant’s qualifications and training translate;
(3) the claimant must show that the work-related injury prevents him from performing any of the jobs identified as within his qualifications and training; and
(4) if the claimant is capable of performing some or all of those jobs, the claimant must show that he cannot obtain any of those jobs.
If the claimant establishes all these factors, then he has made a prima facie showing of disability satisfying MCL 418.301(4), and the burden of producing competing evidence then shifts to the employer. The employer is entitled to discovery before the hearing to enable the employer to meet this production burden. While the precise sequence of the presentation of proofs is not rigid, all these steps must be followed.
In this case, claimant did not sustain his burden of proving a disability. The Court of Appeals erred in holding that claimant sustained his burden of proving that he was disabled from all jobs within his qualifications and training because the existence of other jobs within his qualifications and training paying the maximum wages was not apparent. The Court of Appeals also erred by holding that evidence concerning whether claimant has reasonable employment options available for avoiding a diminution in his wages in a position within his qualifications and training is not part of a claimant’s proofs, and further erred by effectively shifting the burden of proof to the employer to demonstrate that there are jobs available within the claimant’s qualifications and training. Finally, the Court of Appeals erred in holding that the magistrate did not abuse his discretion by denying the employer’s expert the opportunity to interview claimant before the hearing. Given the inconsistent application of the Sington standard in the past, we believe that it would be equitable to allow claimant the opportunity to present his proofs with the guidance provided by this opinion. Accordingly, we reverse those portions of the Court of Appeals judgment and remand this matter to the magistrate for a new hearing consistent with the procedures set forth in this opinion.
Taylor, C.J., and Corrigan and Young, JJ., concurred with Markman, J.
In Boggetta, supra at 603, this Court quoted with approval the opinion of the Workmen’s Compensation Appeal Board (WCAB), which stated that a hearing referee’s responsibility is “ ‘broad enough to require the answering of interrogatories requested by one of the parties if such answers are necessary to a proper inquiry into the facts.’ ”
We do not address the issue of wage loss in this opinion, which, under MCL 418.301(4), is an issue entirely separate from the establishment of disability. Once a plaintiff makes a prima facie showing of disability, the plaintiff must also prove a wage loss. Sington, supra at 160 n 11.
MCL 418.851 provides, in pertinent part, that “[t]he worker’s compensation magistrate at the hearing of the claim shall make such inquiries and investigations as he or she considers necessary.” MCL 418.853 allows the magistrate to “administer oaths, subpoena witness, and to examine [] parts of the books and records ...
The procedures set forth in this opinion are more consistent with Sington than the procedures of the Court of Appeals, and Sington is more consistent with the statute than is Haske. Moreover, it must be said, although it does not influence this opinion, that the procedures set forth here will almost certainly lead to a far more efficient use of human and economic resources in Michigan than the procedures introduced by this Court in Haske. Injured employees who are able to continue to work will be encouraged to do so instead of having their skills wasted, workers’ compensation costs will be reduced for employers, and the competitiveness of Michigan as a workplace with other states will be enhanced. Not only does the dissent misconstrue these observations by ignoring our prefatory language, post at 319 and n 18, but one cannot help but glean from the dissent a sense that it is somehow better that a person who, while unable to perform Job A as a result of a workplace injury, could perform Job B at an equivalent compensation should be encouraged not to do so, thereby imposing higher workers’ compensation costs on his employer. To what conceivable end?
The dissent compares the general language of MCL 418.301(4) with the more specific language of MCL 418.385 to conclude that MCL 418.301(4) does not require affirmative proofs to demonstrate a limitation in wage-earning capacity. This conclusion is illogical. The Legislature used specific language in MCL 418.385 to require a claimant to submit to a medical examination. It does not follow that every other provision of the statute must use similarly specific language when more general language will suffice. In stating that the claimant must demonstrate a reduction in wage-earning capacity, MCL 418.301(4) is sufficiently clear in what it requires.
The dissent asserts that under Boggetta, which stated that a hearing referee has the authority to require discovery, Boggetta, supra at 603-604, the employer does not have a right to discovery. However, if a magistrate has the discretion to order discovery, and such discovery is necessary for the employer in a particular case to sustain its burden of production, then the magistrate does abuse his discretion in failing to order discovery and denying the employer the opportunity to present a defense. The dissent also asserts that Boggetta is not applicable because the statute it relied on has been modified. Boggetta, supra at 602-603, quoted with approval the WCAB opinion, which first cited Rule 7 of the workmen’s compensation department’s rules of practice, 1954 Mich Admin Code, R 408.7: “ ‘At the hearing in any case, the hearing referee may call witnesses and order the production of books, records, including hospital records, accounts and papers which he deems necessary for the purpose of making an award.’ ” This language reflected the authority granted under the predecessor to MCL 418.853, former MCL 413.3, which stated, in pertinent part: “The board or any member thereof shall have the power to administer oaths, subpoena witnesses and to examine such parts of the books and records of the parties to a proceeding as relate to questions in dispute.” The WCAB concluded that Rule 7 gave the hearing referee authority to carry out certain actions, but did not constitute an exhaustive list of what a hearing referee could do in workmen’s compensation proceedings. Boggetta, supra at 602. The WCAB then cited the predecessor to MCL 418.851, former MCL 413.8, which stated that a hearing referee “ ‘shall make such inquiries and investigations as it (he) shall deem necessary.’ ” Id. at 603. The WCAB concluded that the hearing referee’s responsibility was “ ‘broad enough to require the answering of interrogatories requested by one of the parties if such answers are necessary to a proper inquiry into the facts.’ ” Id. The “substantial alteration” in the statute that the dissent refers to, post at 311, is effectively that the language “at the hearing” was added in MCL 418.851. Applying Boggetta’s reasoning, this change would not alter the holding at all. These two provisions accord a magistrate the authority to require necessary discovery throughout the entire process of examining the case to render a proper decision regarding whether a claimant has proved a disability. They do not purport to constitute an exhaustive list of actions a magistrate may take. In addition, the WCAC, sitting en banc, addressed the meaning of this amendment in O’Brien, supra at 3, in which it held that the addition of this language was a result of statutory changes in 1985, in which the authority to assign cases was removed from the Bureau of Worker’s Disability Compensation and vested in the newly created Board of Magistrates. The language “The worker’s compensation magistrate at the hearing” was merely a replacement of the previous language, “The hearing referee assigned to any hearing.” Id. Therefore, the phrase “at the hearing” is a qualifier for the word “magistrate” and refers to the entire proceedings before the magistrate, and does not refer to only a portion of those proceedings. | [
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CAVANAGH, J.
We granted leave to appeal in this case to determine whether defendant Wayne County Treasurer’s efforts to provide notice of foreclosure proceedings to plaintiff Stella Sidun satisfied due process in light of Jones v Flowers, 547 US 220; 126 S Ct 1708; 164 L Ed 2d 415 (2006). Because the county treasurer failed to employ reasonable follow-up methods to notify plaintiff of the proceedings involving her property, we hold that plaintiffs due-process rights were violated. The Court of Appeals erred by concluding that the county treasurer’s efforts met the requirements described by Jones. Therefore, we reverse the judgment of the Court of Appeals and remand to the circuit court for further proceedings.
I. STATEMENT OF FACTS AND PROCEEDINGS
Plaintiffs mother, Helen Krist, owned a two-family dwelling at 2691 Commor Street in Hamtramck for several decades. In 1979, Krist executed a quitclaim deed conveying the Hamtramck property to herself and plaintiff as joint tenants. The deed stated that “HELEN KRIST... the address of which is 3233 StolzenfeldWarren, MI 48091” quitclaims the property “to HELEN KRIST and STELLA SIDUN, as joint tenants with right of survivorship and not as tenants in common, whose street number and postoffice address is 3233 Stolzenfeld-Warren, MI 48091 and 2681 Dorchester Birmingham, MI 48008 ...The deed was properly recorded with the Wayne County Register of Deeds.
Krist used the Hamtramck residence as rental property, taking primary responsibility for maintaining the property and collecting rent from its tenants. Plaintiff assisted Krist by driving her to the property to collect the rent and writing receipts. The utility bills for the property were sent to Krist’s residence in Warren, and plaintiff assisted Krist in paying them as well. Krist developed Alzheimer’s disease in the late 1990s. In 1998, Krist moved from her Warren residence to live with plaintiff and her husband in their Birmingham residence. Plaintiffs husband arranged to have the utility bills from the Hamtramck property sent to the Birmingham address. However, the Hamtramck city assessor and the county treasurer were not informed of Krist’s new address. The Warren house was sold several months after Krist moved to Birmingham.
Wayne County tax bills are mailed to the address of the taxpayer, as recorded by the local assessor. During the tax years of 1999 to 2003, the county treasurer mailed all tax bills for the Hamtramck property to Krist at the Warren residence, which was consistent with the Hamtramck city assessor’s records from that period. Plaintiff was not mentioned in the city assessor’s records. Krist and plaintiff failed to pay the county property taxes on the Hamtramck property for the tax years 2000 and 2001, resulting in a tax delinquency of $2,066.45.
In accordance with the General Property Tax Act (GPTA), MCL 211.1 et seq., the county treasurer sent two notices of tax delinquency by first-class mail, address correction requested, to Krist at the Warren address. Notice of tax delinquency was also sent by certified mail, return receipt requested, to Krist at the Warren address; it was returned as undeliverable. After the property was forfeited to the county treasurer, a petition for foreclosure was filed on June 14, 2002. The county treasurer took several additional steps required by MCL 211.78Í as part of the foreclosure proceedings. On the basis of the information located on the property’s deed, the county treasurer sent notice of the show-cause and foreclosure hearings by certified mail addressed to both Krist and plaintiff at the Warren address on December 18, 2002. The letter was returned as undeliverable. A representative of the county treasurer visited the property and posted notice of the foreclosure petition on the property, as the representative was unable to personally meet with the occupant. The county treasurer also published notification three times in the public-notice section of the Michigan Citizen, a community newspaper. However, notice was never sent to plaintiff’s Birmingham residence, which was on the recorded deed.
Krist died on January 1, 2003. A show-cause hearing regarding why the property should not be foreclosed was held on January 14, 2003. The foreclosure hearing was held on February 26, 2003. On March 10, 2003, a judgment of foreclosure was entered against the property and absolute title vested in the county treasurer. The county treasurer sold the property at auction for $52,000 to the owner of Krist’s former Warren residence. At the time of the purchase, the property had an appraised value of $85,000. Plaintiff and her husband learned of the sale from a tenant of the property, who contacted them after the new owner attempted to collect rent.
Plaintiff filed suit, alleging that she had been wrongfully deprived of her property without proper notice in violation of the GPTA and the Due Process Clause of the Michigan Constitution. The trial court denied plaintiffs motion for summary disposition and granted summary disposition for the county treasurer, ruling that the attempts to notify plaintiff satisfied due process and the requirements of the GPTA. Plaintiff appealed in the Court of Appeals, which, in a split decision, affirmed the trial court’s order. Plaintiff appealed in this Court; we vacated the judgment of the Court of Appeals and remanded for reconsideration in light of Jones. 475 Mich 882 (2006). On remand, the Court of Appeals, again in a split decision, reached the same result, holding that Jones did not compel a different conclusion because the county treasurer’s efforts to provide notice were sufficient to satisfy due process, particularly in light of the county’s follow-up measure of posting notice on the property. This Court granted plaintiffs application for leave to appeal. 480 Mich 864 (2007).
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision regarding a motion for summary disposition. Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000). This Court also reviews constitutional issues de novo. Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767 (2003).
III. CONSTITUTIONAL NOTICE REQUIREMENTS
The Due Process Clause of the Michigan Constitution states: “No person shall be... deprived of life, liberty or property, without due process of law.” Const 1963, art 1, § 17. The corresponding provision of the United States Constitution is applicable to Michigan through the Fourteenth Amendment, and provides in part, “nor shall any person ... be deprived of life, liberty, or property, without due process of law.” US Const, Am V. It is undisputed that plaintiff holds a property interest in the subject property; accordingly, she has a constitutional right to due process of law before the government takes title to the property.
Proceedings that seek to take property from its owner must comport with due process. A fundamental requirement of due process in such proceedings is “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950). Interested parties are “entitled to have the [government] employ such means ‘as one desirous of actually informing [them] might reasonably adopt’ to notify [them] of the pendency of the proceedings.” Dow v Michigan, 396 Mich 192; 240 NW2d 450 (1976), quoting Mullane, supra at 315. That is, the means employed to notify interested parties must be more than a mere gesture; they must be means that one who actually desires to inform the interested parties might reasonably employ to accomplish actual notice. Mullane, supra at 315. However, “[d]ue process does not require that a property owner receive actual notice before the government may take his property.” Jones, supra at 226. In this case, the county treasurer at tempted to notify plaintiff of the foreclosure proceedings, but actual notice was not achieved. Thus, the issue is whether the methods employed by the county treasurer were sufficient to satisfy due-process requirements.
A notification method may be reasonable and constitutional if employing the method is “reasonably certain to inform those affected,” or, when circumstances do not reasonably permit such notice, if the method employed is not substantially less likely to provide notice than other customary alternative methods. Mullane, supra at 315. Notably, Mullane recognized that the reasonableness of a particular method could vary, depending on what information the government had. That case concerned a New York law that merely required notice by publication to inform beneficiaries of a common trust fund that the fund was subject to judicial settlement. Id. at 309-310. The Court held that while notice by publication was constitutionally sufficient with regard to beneficiaries whose interests or addresses were unknown, notice by publication was insufficient for beneficiaries whose names and ad dresses were known by the government. “Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.” Id. at 318. Notice by publication was inadequate in the case of known beneficiaries “because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand.” Id. at 319.
Moreover, even if a statutory scheme is reasonably calculated to provide notice in the ordinary case, the United States Supreme Court has nevertheless “required the government to consider unique information about an intended recipient. . . .” Jones, supra at 230. The Court has explained that the “ ‘notice required will vary with [the] circumstances and conditions.’ ” Id. at 227 (citation omitted). The government’s knowledge that its attempt at notice has failed is a “ ‘circumstance and condition’ that varies the ‘notice required.’ ” Id. (citations omitted). In such a case, the adequacy of the government’s efforts will be evaluated in light of the actions it takes after it learns that its attempt at notice has failed. The Court explained, “[W]hen mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.” Id. at 225. “What steps are reasonable in response to new information depends upon what the new information reveals.” Id. at 234. For example, when certified mail is returned as “unclaimed,” it means either that the addressee still lives at that address but was not home when the mail was delivered and did not retrieve it, or that the addressee no longer resides at that address. Id. Under those circumstances, a reasonable follow-up measure aimed at the first possibility would be to resend the notice by regular mail. Id. Reasonable follow-up measures directed at the possibility that the addressee had moved would be to post notice on the front door or to send notice addressed to “occupant.” Id. at 235. Although the government must take reasonable additional steps to notify the owner, it is not required to go so far as to “search[] for [an owner’s] new address in the . . . phonebook and other government records such as income tax rolls.” Id. at 235-236. Ultimately, the Court did not prescribe the form of service that should be adopted in any given case, but simply observed that for purposes of its holding — which found the state’s follow-up actions insufficient — it sufficed that additional reasonable steps were available for the state to employ before taking the property. Id. at 238.
IV THE INITIAL ATTEMPT AT PROVIDING NOTICE
Applying the principles established by Múlleme and Jones to this case, we conclude that the measures taken by the county treasurer to inform plaintiff of the foreclosure proceedings were constitutionally deficient. When there are multiple owners of a piece of property, due process entitles each owner to notice of foreclosure proceedings. See Mennonite Bd of Missions v Adams, 462 US 791, 799; 103 S Ct 2706; 77 L Ed 2d 180 (1983). The notice provisions of the GPTA seek to fulfill this obligation. After the foreclosing governmental unit has determined the owners of a property interest in the subject property, it must send notice by certified mail to those owners at “the address reasonably calculated to apprise those owners” of the foreclosure proceedings. MCL 211.78i(2). Pursuant to this provision, the county treasurer sent certified mail, addressed to both Krist and plaintiff, to the Warren residence. At the time the letter was sent, sending mail to Krist at the Warren address was a method reasonably calculated to notify her of the proceedings because that address was on file with the Hamtramck city assessor. Moreover, the deed confirmed that Krist lived at the Warren residence. However, using the same Warren address to contact both property owners was not reasonable in light of the information known by the county treasurer.
To identify all interest-holders in the property under MCL 211.78i(l), the county treasurer was required to consult the deed to the property. And, in fact, the county treasurer did consult the deed and discover plaintiffs property interest. But it was unreasonable for the county treasurer to assume that both property holders resided at the Warren address when the deed denotes two property holders with different last names and references two separate addresses. Further, the initial reference linking Krist to the Warren residence supports the inference that the Birmingham address belongs to plaintiff, the other owner. The beginning of the deed states, “HELEN KRIST, formerly HELEN CHWALEBA, survivor of herself and ANDREW CHWALEBA, her former husband, ... the address of which is 3233 Stolzenfeld-Warren, MI 48091 Quit Claims to HELEN KRIST AND STELLA SIDUN” the subject property. Immediately following this reference, the deed repeats the Warren address and mentions the Birmingham address for the first time; it lists Krist’s name first and plaintiff’s name second and then provides Krist’s address first and plaintiff’s address second. Although the deed does not specifically state, “the following is Sidun’s address,” a reasonable person would be able to infer that the second address is plaintiff’s address given that plaintiffs name is the second name listed immediately above the addresses. Accordingly, the deed did not support the county treasurer’s interpretation that both Krist and plaintiff resided at the single address, because that would leave the Birmingham address unexplained. The county treasurer also knew that Krist alone was listed as the taxpayer for the property at the Warren address. In light of all the information, a reasonable person would deduce that Krist was connected to the Warren address, while plaintiff was connected to the Birmingham address. Accordingly, a person who actually wished to notify both property owners would have sent a letter to the Birmingham address, rather than operating as if it were never mentioned in the deed.
If the government provides notice by mail, due process requires it to be mailed to an “address reasonably calculated to reach the person entitled to notice.” Dow, supra at 211. The address “reasonably calculated to reach [plaintiff],” a person who was entitled to notice, was her home address that was listed on the recorded deed in defendant’s possession. Because defendant had plaintiffs address at hand but failed to mail notice to her at that address, defendant failed to accord plaintiff minimal due process.
Our holding does not categorically require foreclosing entities to search for and send notice to additional addresses whenever multiple owners are entitled to notice of foreclosure. And neither due process nor the GPTA generally requires a foreclosing entity to send notice to all addresses that the entity has, or could have, discovered. The guiding principle remains that notice must be “reasonably calculated” to apprise interested parties of the action and to provide them an opportunity to be heard. Mullane, supra at 314; Dow, supra at 211. Under different circumstances, sending notice to multiple owners at one address may well satisfy this standard. But here, the deed in the treasurer’s possession listed two owners and two addresses, and, in light of the deed’s wording, sending notice to both owners at the first address only was constitutionally insufficient.
V THE FOLLOW-UP NOTIFICATION MEASURES
The follow-up measures taken by the county treasurer were insufficient to rectify the failed attempt to notify plaintiff. When the county treasurer learned that the certified mail sent to the Warren address had been returned, it was alerted that Krist, plaintiff, or both either did not live there or had not been home at the time. As additional steps, the county treasurer posted notice on the Hamtramck property and published notice. These both may be reasonable follow-up measures, as Jones recognized. However, Jones also indicated that what constitutes a reasonable follow-up measure depends on the circumstances, including what information the government had both before and after its failed attempt.
In this case, the county treasurer knew that there were two owners and two addresses listed on the deed, but it only sent notice to one address. When that notice failed with respect to both owners, a reasonable additional step would have been to attempt sending notice to the other address in the deed, whether addressed to Krist, plaintiff, or both. A person who actually desired to inform a real-property owner of an impending tax sale of a house she owns would not fail to send notice to the second of two addresses on the recorded deed that such person had in his possession, especially when the notice sent to the other address came back unclaimed. The reasonable alternative measure of sending notice to the Birmingham address was obviously available to the county treasurer, as Jones requires, since the county treasurer had already consulted the deed to identify plaintiff as a property owner.
This step is far from asking the government to conduct a search for a new address in a phone book or income-tax rolls. See Jones, supra at 235-236. The burden on the government would have been slight; defendant would not have had to search for plaintiffs address because it was in the recorded deed that the county treasurer had already consulted, and it only involved exploring one alternative address. Thus, while the county treasurer should have sent notice to the Birmingham address when it first attempted to contact both property owners, it particularly should have done so when it learned that its initial methods of providing notice had failed. The address “reasonably calculated to reach [plaintiff],” Dow, supra at 211, a person who was entitled to notice, was her home address that was listed on the recorded deed in defendant’s possession. Simi larly, “ ‘one desirous of actually’ . . . notifying] [plaintiff] of the pendency of the proceedings,” Dow, supra at 211, quoting Mullane, supra at 315, would certainly have mailed notice to plaintiffs home address that was listed on the recorded deed in defendant’s possession, particularly when the notice mailed to the other address listed on the deed was returned unclaimed. “This is especially true when, as here, the subject matter of the [notice] concerns such an important and irreversible prospect as the loss of a house.” Jones, supra at 230.
It is worth noting that the government’s constitutional obligation to provide notice is not excused by an owner’s failure to keep his or her address updated in governmental records. A party’s ability to take steps to safeguard its own interests does not relieve the government of its constitutional obligation. Id. at 232. Similarly, “the common knowledge that property may become subject to government taking when taxes are not paid does not excuse the government from complying with its constitutional obligation of notice before taking private property.” Id. On the contrary, “an interested party’s ‘knowledge of delinquency in the payment of taxes is not equivalent to notice that a tax sale is pending.’ ” Id. at 232-233, quoting Mennonite Bd, supra at 800. Thus, while plaintiff should have been more diligent regarding the tax liability on her property, the government may not take that property without providing due process of law.
VI. CONCLUSION
Given that plaintiffs due-process rights were violated, the circuit court erred in denying her motion for summary disposition and granting summary disposition for the county treasurer. Further, at the time plaintiff filed her claim, she sought only money damages, not to set aside the judgment of foreclosure. Indeed, the GPTA specifically precludes claims seeking to modify judgments of foreclosure and limits causes of action arising under the act to claims for money damages. However, while plaintiffs appeal was pending, we decided In re Petition by Wayne Co Treasurer, 478 Mich 1; 732 NW2d 458 (2007), in which we held unconstitutional the provisions of the GPTA that vest absolute title in the foreclosing governmental unit without allowing the circuit court to modify judgments of foreclosure if an owner has been deprived of due process. Id. at 10-11. Plaintiff is such an owner; thus, the provisions of the GPTA that limit her remedy to money damages and strip the circuit court of jurisdiction to set aside the foreclosure are unenforceable against her. We reverse the Court of Appeals judgment and remand the case to the circuit court for further proceedings consistent with this opinion.
Taylor, C.J., and Weaver, Kelly, Corrigan, Young, and MARKMAN, JJ., concurred with CAVANAGH, J.
Sidun v Wayne Co Treasurer, unpublished opinion per curiam of the Court of Appeals, issued January 19, 2006 (Docket No. 264581).
Sidun v Wayne Co Treasurer (On Remand), unpublished opinion per curiam of the Court of Appeals, issued August 15, 2006 (Docket No. 264581).
“The state has no proper interest in taking a person’s property for nonpayment of taxes without proper notice and opportunity for a hearing at which the person can contest the state’s right to foreclose and cure any default determined.” Dow, supra at 210 (applying Mullane v Central Hanover Bank & Trust Co, 339 US 306; 70 S Ct 652; 94 L Ed 865 [1950]).
While plaintiff also alleged violations of the GPTA, we will not review the disposition of these claims. As a practical matter, any remedies available to plaintiff are contingent on her constitutional claim since MCL 211.78(2) states in relevant part, “The failure of this state or a political subdivision of this state to follow a requirement of this act relating to the return, forfeiture, or foreclosure of property for delinquent taxes shall not be construed to create a claim or cause of action against this state or a political subdivision of this state unless the minimum requirements of due process accorded-under the state constitution of 1963 or the constitution of the United States are violated.” See also MCL 211.78i(10), which states, “The failure of the foreclosing governmental unit to comply with any provision of this section shall not invalidate any proceeding under this act if the owner of a property interest or a person to whom a tax deed was issued is accorded the minimum due process required under the state constitution of 1963 and the constitution of the United States.”
MCL 211.78i(2) provides in relevant part:
[T]he foreclosing governmental unit or its authorized representative shall determine the address reasonably calculated to apprise those owners of a property interest of the show cause hearing under section 78j and the foreclosure hearing under section 78k and shall send notice of the show cause hearing under section 78j and the foreclosure hearing under section 78k to those owners, and to a person entitled to notice of the return of delinquent taxes under section 78a(4), by certified mail, return receipt requested, not less than 30 days before the show cause hearing.
MCL 211.78i(l) state's in part: “The foreclosing governmental unit shall initiate a search of records identified in subsection (6) to identify the owners of a property interest in the property who are entitled to notice under this section of the show cause hearing under section 78j and the foreclosure hearing under section 78k.” The first type of records specified in subsection 6 are land title records in the office of the county register of deeds. MCL 211.78i(6)(a).
MCL 211.781(1) provides:
If a judgment for foreclosure is entered under section 78k and all existing recorded and unrecorded interests in a parcel of property are extinguished as provided in section 78k, the owner of any extinguished recorded or unrecorded interest in that property who claims that he or she did not receive any notice required under this act shall not bring an action for possession of the property against any subsequent owner, but may only bring Em action to recover monetary damages as provided in this section. | [
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Markman, J.
At issue in this case is (1) whether defendant Tri-County Metro Narcotics Squad (TCM) has standing to appeal the decision of the Court of Appeals despite prevailing on every issue in that Court, (2) if so, whether TCM is a juridical entity subject to suit, and (3) whether TCM is a “state agency” that may only be sued in the Court of Claims. We conclude that, because TCM was aggrieved by the Court of Appeals decision, which permitted plaintiffs to bring a subsequent suit on the same grounds in a different court, TCM has standing to appeal that decision. We further conclude that TCM is a juridical entity subject to suit. Finally, we hold that TCM is not a state agency under MCL 600.6419(l)(a). Accordingly, the Court of Appeals erred in requiring suit to be filed in the Court of Claims. For these reasons, we affirm in part the judgment of the Court of Appeals, we reverse in part that judgment, and we remand this case to the Ingham Circuit Court for further proceedings in conformity with this opinion.
I. FACTS AND PROCEDURAL HISTORY
The underlying events in this case unfolded in 1999, when plaintiff Iskandar Manuel agreed to assist TCM in combating area drug dealers. TCM, an entity formed under an interlocal agreement between various units of local, state, and federal government, assisted Manuel in portraying himself as a drug dealer in order to earn the trust of local drug dealers and thereby secure evidence against them.
Although the partnership between Manuel and TCM existed for several years, the relationship ultimately soured. Manuel alleged that agents of TCM negligently exposed him and his family to danger by acting in such a manner that targeted drug dealers could readily deduce Manuel’s cooperation with law enforcement. After several such alleged incidents, Manuel and members of his family filed the instant complaint in November 2003 in the Ingham Circuit Court. In an amended complaint, plaintiffs alleged 11 counts against TCM, various signatories to the interlocal agreement that created TCM, and several individuals associated with TCM. The complaint alleged that defendants had committed gross negligence, intentionally or negligently inflicted emotional distress on plaintiffs, violated plaintiffs’ constitutional rights by subjecting them to a state-created danger, and breached an express or implied contract with plaintiffs. The only claim relevant in the instant case is the breach-of-contract claim.
The trial court granted summary disposition to defendants, holding that plaintiffs had failed to state a cause of action on all counts. With regard to the breach-of-contract claim, the trial court concluded that the statute of frauds, MCL 566.132(l)(b), required a written agreement; because plaintiffs relied on an oral contract between Manuel and TCM, they failed to adequately substantiate their claim. The trial court dismissed plaintiffs’ claims for failure to state a cause of action, and dismissed all 11 counts with prejudice.
The Court of Appeals affirmed, concluding that the trial court had properly dismissed the claims of gross negligence, infliction of emotional distress, and state-created danger. Manuel v Gill, 270 Mich App 355, 375, 380-381; 716 NW2d 291 (2006). With regard to the breach-of-contract claim, the Court of Appeals concluded that the trial court had erroneously determined that the statute of frauds was implicated. Id. at 376-377. However, “because the TCM is operated under the direction and supervision of the MSf^... the TCM is equivalent to a state agency.” Id. at 377. Any claim brought against a state agency must be brought in the Court of Claims, not a circuit court. Id. at 377-378, citing MCL 600.6419. “Accordingly, albeit for the wrong reason, the trial court properly granted summary disposition for the TCM on the Manuels’ breach of contract claim.” Id. at 378. Thus, the Court of Appeals permitted suit to be brought against TCM in the Court of Claims on the breach-of-contract claim.
Despite obtaining an affirmance of the trial court’s dismissal in the Court of Appeals, TCM filed an application for leave to appeal in this Court, asking us to consider whether the Court of Appeals properly concluded that TCM is a “state agency.” We denied the application for leave to appeal. 477 Mich 1067 (2007). However, we subsequently granted TCM’s motion for reconsideration, vacated our previous order, and ordered oral argument on whether to grant the application. 480 Mich 929 (2007).
II. STANDARD OF REVIEW
“Whether a party has standing is a question of law that we review de novo.” Michigan Citizens for Water Conservation v Nestlé Waters North America, Inc, 479 Mich 280, 291; 737 NW2d 447 (2007). We review de novo a trial court’s grant of summary disposition. Wesche v Mecosta Co Rd Comm, 480 Mich 75, 83; 746 NW2d 847 (2008). We also consider questions of statutory and contractual interpretation de novo. Ross v Auto Club Group, 481 Mich 1, 6; 748 NW2d 552 (2008); Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005).
III. ANALYSIS
A. APPELLATE STANDING
The first issue we must address is whether TCM has standing to appeal the decision of the Court of Appeals. In order to have appellate standing, the party filing an appeal must be “aggrieved.” People v Hopson, 480 Mich 1061, 1061 (2008); Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 291; 715 NW2d 846 (2006). This requirement stems from the fact that this Court’s “judicial power,” established by Const 1963, art 6, § 1, extends only to “ ‘a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute, and one in which the plaintiff has suffered a “particularized” or personal injury.’ ” Federated, supra at 292, quoting Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 615; 684 NW2d 800 (2004). This Court recently clarified the requirement that a party seeking appellate standing must be aggrieved:
“To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency.” ... An aggrieved party is not one who is merely disappointed over a certain result. Rather, to have standing on appeal, a litigant must have suffered a concrete and particularized injury, as would a party plaintiff initially invoking the court’s power. The only difference is a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case. [Federated, supra at 291-292, quoting In re Trankla Estate, 321 Mich 478, 482; 32 NW2d 715 (1948).]
Federated further explained: “ ‘ “A party who could not benefit from a change in the judgment has no appeal-able interest.” ’ ” Federated, supra at 291 n 2, quoting Ford Motor Co v Jackson (On Rehearing), 399 Mich 213, 226; 249 NW2d 29 (1976) (citation omitted).
What makes this case unusual is that the appellant, TCM, was a prevailing party in the Court of Appeals. That is, the Court of Appeals decided each issue in TCM’s favor and affirmed the trial court’s grant of summary disposition to TCM. Ordinarily, a party who prevails on every claim cannot be considered to be aggrieved by a court’s ruling. However, a prevailing party may possess appellate standing if, despite the judgment in its favor, it has nonetheless suffered a concrete and particularized injury as a result of the Court of Appeals decision.
Given the disparities between the holdings of the trial court and the Court of Appeals, TCM suffered a concrete harm in the Court of Appeals, and hence, in our judgment, may fairly be considered to be an aggrieved party. The trial court held that plaintiffs’ complaint was too conclusory and thus was insufficient to state a claim for breach of contract, and that the contract claim was further barred by the statute of frauds. Accordingly, it dismissed the contract claim with prejudice. On appeal, the Court of Appeals affirmed the dismissal of the contract claim, albeit on separate jurisdictional grounds. Although it held that the complaint was sufficient to state a claim and that the statute of frauds was inapplicable, it also concluded that plaintiffs’ claim had to be filed in the Court of Claims because TCM is a “state agency.” Manuel, supra at 376-378. Accordingly, the Court of Appeals judgment permitted plaintiffs to refile the contract claims in the Court of Claims. Hence, before the Court of Appeals judgment, plaintiffs’ lawsuit against TCM had been dismissed with prejudice; however, after this judgment, the contract claim was revived. Plaintiffs had only to file it in a different court and, in fact, subsequently did so. Because the decision of the Court of Appeals revived the contract claim, TCM was aggrieved by that decision and therefore has standing to appeal.
B. JURIDICAL ENTITY
TCM asserts that the suit against it should be dismissed because it is not a “juridical entity” — that is, it is not an entity that can be rendered subject to suit. TCM was formed pursuant to the Urban Cooperation Act (UCA), MCL 124.501 et seq. Both the trial court and the Court of Appeals concluded that, under the UCA, TCM was subject to suit, relying on MCL 124.507(2), which states:
A separate legal or administrative entity created by an interlocal agreement shall possess the common power specified in the agreement and may exercise it in the manner or according to the method provided in the agreement. The entity may be, in addition to its other powers, authorized in its own name to make and enter into contracts, to employ agencies or employees, to acquire, construct, manage, maintain, or operate buildings, works, or improvements, to acquire, hold, or dispose of property, to incur debts, liabilities, or obligations that, except as expressly authorized by the parties, do not constitute the debts, liabilities, or obligations of any of the parties to the agreement, to cooperate with a public agency, an agency or instrumentality of that public agency, or another legal or administrative entity created by that public agency under this act, to make loans from the proceeds of gifts, grants, assistance funds, or bequests pursuant to the terms of the interlocal agreement creating the entity, and to form other entities necessary to further the purpose of the interlocal agreement. The entity may sue and be sued in its own name. [Emphasis added.]
TCM is a “separate legal or administrative entity created by an interlocal agreement.” The second sentence of MCL 124.507(2) enumerates a range of activities that such an entity “may be... authorized” to undertake, such as entering contracts and acquiring buildings. The phrase “may be authorized” indicates that the entity is not necessarily entitled to undertake such actions; rather, the entity “may be authorized” to do so, but absent an authorization the entity would not be able to act.
In contrast to the second sentence of MCL 124.507(2), the third sentence simply states: “The entity may sue and be sued in its own name.” This language indicates that an entity created pursuant to the UCA, such as TCM, may be sued. The third sentence does not contain the qualifying language of the second sentence, which lists certain activities in which an entity “may be authorized” to engage. This difference in language strongly suggests that the Legislature intended to distinguish between activities that must be
authorized and activities that do not require authorization. Because the third sentence of MCL 124.507(2) states categorically that an entity may sue and be sued, we conclude that TCM is a juridical entity subject to suit.
TCM raises two arguments against this conclusion. TCM first focuses on the term “may” in the third sentence: “The entity may sue and be sued in its own name.” It argues that “may” indicates that an entity may be sued only if the agreement creating the entity so specifies. However, the term “may” is relevantly defined as being “used to express opportunity or permission . .. .” Random House Webster’s College Dictionary (1997). In general, our courts have said that the term “may” is “permissive,” Murphy v Michigan Bell Tel Co, 447 Mich 93, 120; 523 NW2d 310 (1994), as opposed to the term “shall,” which is considered “mandatory,” People v Couzens, 480 Mich 240, 250; 747 NW2d 849 (2008). In MCL 124.507(2), the term “may” indicates that an entity created by an interlocal agreement is susceptible to being held to account in a court of law. That is, MCL 124.507(2) first states, in the active voice, that an entity “may sue.” This indicates that an entity is granted the discretionary ability to decide whether to bring suit. MCL 124.507(2) then uses the passive voice, stating that an entity “may be sued.” This statement similarly indicates that persons suffering an injury from an entity are granted the discretionary ability to sue the entity. In other words, “may” here is permissive: it grants permission to persons injured to sue the entity. Because MCL 124.507(2) states that “[a]n entity may sue and be sued in its own name,” the Legislature has signaled that such an entity may potentially be sued and is susceptible to suit.
TCM also argues that the interlocal agreement must specifically authorize suit under MCL 124.505(c), which states:
A joint exercise of power pursuant to this act shall be made by contract or contracts in the form of an interlocal agreement which may provide for:
(c) The precise organization, composition, and nature of any separate legal or administrative entity created in the interlocal agreement with the powers designated to that entity.
TCM contends that because the contract creating the entity “may provide for ... [t]he precise organization, composition, and nature” of the entity, the formative contract must specify every aspect of such an entity; in particular, before an entity may be brought to court, the interlocal agreement must specify that the entity is subject to suit, for otherwise the “nature” of the entity would not permit a legal action against it. However, TCM’s reliance on MCL 124.505(c) is, in our judgment, misplaced, because that statute states generally that aspects of an entity’s nature may be specified in the interlocal agreement; on the other hand, MCL 124.507(2) states specifically that at least one aspect must be understood as characterizing an entity— namely, that it “may sue and be sued.” Thus, even if we assume that the amenability to suit can be described as an aspect of an entity’s “nature,” because the more specific provision prevails over the more general, Fluor Enterprises, Inc v Dep’t of Treasury, 477 Mich 170, 181; 730 NW2d 722 (2007), MCL 124.505(c) does not suggest that specific authorization is required before suit may be brought against TCM.
C. STATE AGENCY
Because TCM is a juridical entity subject to suit, we must now consider TCM’s final argument, that the Court of Appeals erroneously held that TCM was a “state agency” and thereby subject to suit in the Court of Claims. MCL 600.6419(l)(a) of the Revised Judicature Act (RJA) indicates that the Court of Claims has exclusive jurisdiction “[t]o hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms, or agencies.” Hence, if the Court of Appeals correctly concluded that TCM is a “state agency,” then jurisdiction was proper only in the Court of Claims, barring any other law to the contrary. TCM contends that it is not a state agency, and hence that plaintiffs’ original suit may proceed as originally filed in the Ingham Circuit Court.
The RJA does not define the term “state agency.” Although the dictionary relevantly defines “agency” as “a government bureau or administrative division,” Random House Webster’s College Dictionary (1997), this definition does not afford guidance in distinguishing between what is a bureau or division of the government and what is not, and hence ultimately is not helpful.
The meaning of statutory terms may also be deduced from their context, under the principle of noscitur a sociis. Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham, 479 Mich 206, 215; 737 NW2d 670 (2007). A court does not “construe the meaning of statutory terms in a vacuum.” Tyler v Cain, 533 US 656, 662; 121 S Ct 2478; 150 L Ed 2d 632 (2001). “Rather, we interpret the words ‘in their context and with a view to their place in the overall statutory scheme.’ ” Id., quoting Davis v Michigan Dep’t of Treasury, 489 US 803, 809; 109 S Ct 1500; 103 L Ed 2d 891 (1989). “ ‘It is a familiar principle of statutory construction that words grouped in a list should be given related meaning.’ ” G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421-422; 662 NW2d 710 (2003), quoting Third Nat’l Bank in Nashville v Impac Ltd, Inc, 432 US 312, 322; 97 S Ct 2307; 53 L Ed 2d 368 (1977).
Here, MCL 600.6419(l)(a) lists the following state entities: “departments, commissions, boards, institutions, arms, or agencies.” State law establishes various “departments,” such as the Department of State, MCL 16.125, the Department of the Attorney General, MCL 16.150, and the former Department of Labor, MCL 16.475, which is now the Department of Labor and Economic Growth. Numerous laws create “commissions,” such as the former Michigan Superconducting Super Collider Commission, which subsequently had its powers and duties transferred to the Department of Labor and Economic Growth. MCL 3.814(1); MCL 3.821. State law also creates a “state board of assessors.” MCL 207.1. The University of Michigan is designated an “institution” under MCL 390.1. Although we are unaware of any law creating an “arm” of the state, we note that the term is commonly defined as “an administrative or operational branch of an organization: an investigative arm of the government.” Random House Webster’s College Dictionary (1997). These statutes indicate that the other terms listed in MCL 600.6419(l)(a) besides “agencies” commonly refer to entities created by state law, thereby suggesting that one aspect of a state agency is that it is created pursuant to state law.
Another statute sheds further light on the meaning of “state agency.” MCL 600.6458 explains how a judgment against a state entity in the Court of Claims should be paid:
(1) In rendering any judgment against the state, or any department, commission, board, institution, arm, or agency, the court shall determine and specify in that judgment the department, commission, board, institution, arm, or agency from whose appropriation that judgment shall be paid.
(2) Upon any judgment against the state or any department, commission, board, institution, arm, or agency becoming final, . . . the clerk of the [Court of Claims] shall certify to the state treasurer the fact that that judgment was entered . . . and the claim shall thereupon be paid from the unencumbered appropriation of the department, commission, board, institution, arm, or agency if the state treasurer determines the unencumbered appropriation is sufficient for the payment. In the event that funds are not available to pay the judgment . . . , the state treasurer shall instruct the clerk of the court of claims to issue a voucher against an appropriation made by the legislature for the payment of judgment claims .... [Emphasis added.]
A judgment against a “state agency” is paid out of the “appropriation” made to or for the agency by the Legislature. MCL 600.6458 thus indicates that a state agency receives funding from the state government, through an act of the Legislature. Thus, a second aspect of a state agency for purposes of MCL 600.6419(1) (a) is that such an agency is funded, at least in part, by the state government.
In addition to considering relevant statutes to ascertain the meaning of “state agency,” we should also consider prior caselaw. In Hanselman v Wayne Co Concealed Weapon Licensing Bd, 419 Mich 168; 351 NW2d 544 (1984), we considered whether a concealed weapons licensing board was a “state board” under the Administrative Procedures Act of 1969 (APA), which defines “agency” as “a state... board .. . created by the constitution, statute, or agency action.” MCL 24.203(2). Because it was undisputed that the board at issue had been “created by... statute,” Hanselman, supra at 183, the critical issue in Hanselman was whether the board was a “state” board. To make this determination, Hanselman adopted a general test, addressing “the characteristics of the board, the relationship between the board and the state, and the functions performed by the board.” Id. at 184. Hanselman argued that the board did not have the characteristics of a state entity because only one of its three members was a state official and the board acted by majority vote, the statute granted wide discretion to the board, the board had only local jurisdiction, and each board acted independently of any other concealed weapons licensing board. Id. at 187-192. Hanselman then argued that the relationship between the board and the state did not indicate that the board was a state entity, because no state agency controlled the decisions of the individual boards, each board exercised wide discretion, and the state did not control the participating local officials. Id. at 193-195. Finally, Hanselman contended that the board did not serve state functions because “a majority of the concealed weapon licensing board members [are] local officials who exercise their discretion according to local consideration.” Id. at 196. For these reasons, Hanselman concluded that a concealed weapons licensing board was not a “state board.” Id. at 196-197.
This review of Hanselman reveals substantial overlap in the relevant factors identified. Accordingly, we consider it necessary to refine the test enunciated in that case. In our judgment, Hanselman focused on two discrete inquiries: first, whether the state ultimately controlled the board, either through statutes that restricted a board’s discretion or through a state employee’s exercise of power on the board, and, second, whether the purposes served by the entity focused on local interests or statewide interests.
In light of the relevant statutes and Hanselman, we conclude that a reviewing court should consider the following factors to determine if an entity is a state agency under MCL 600.6419(l)(a): (1) whether the entity was created by the state constitution, a state statute, or state agency action, (2) whether and to what extent the state government funds the entity, (3) whether and to what extent a state agency or official controls the actions of the entity at issue, and (4) whether and to what extent the entity serves local purposes or state purposes. This test essentially constitutes a “totality of the circumstances” test to determine the core nature of an entity, see Hanselman, supra at 186-187, i.e., whether it is predominantly state or predominantly local; hence, the fact that one factor suggests that the entity is an agency of the state is not necessarily dispositive.
Applying this test, we conclude that TCM is not a state agency. First, TCM was created pursuant to an agreement between various local entities, as well as the MSP and the Federal Bureau of Investigation. Hence, TCM was not specifically created by any state constitutional provision, state statute, or state agency action; rather, local actors were required to take affirmative steps to create TCM. Accordingly, this first factor suggests that TCM is a local entity.
Second, TCM is not ultimately controlled by any state entity or official. Although the MSP exercises control over the daily operations of TCM, all of TCM’s activities are subject to the ultimate control of the command board, which is composed of a representative from each of the entities that created TCM. This command board acts by majority vote. Because only one state official sits on the command board, the state cannot unilaterally exercise control over TCM’s activities. Rather, TCM is preponderantly governed by local officials. Accordingly, the second factor suggests that TCM is a local entity, not a state entity.
Third, according to the briefs of the parties, TCM is not funded by the state government, thereby further suggesting that TCM is not a state agency.
Finally, TCM primarily serves predominantly local purposes. The object of TCM is to fight drug distribu tion within three counties: Ingham, Clinton, and Eaton. Indeed, the very name, “Tri-County Metro Narcotics Squad,” indicates the local purpose of TCM. Although one could obviously argue that suppression of drug distribution in these counties will also have a salutary effect on the state as a whole, the primary purpose of TCM is to deter local drug distribution, for the benefit of the local community. Accordingly, this factor also suggests that TCM is not a state agency.
In light of the foregoing factors, we conclude that TCM is not a state agency, and thus plaintiffs were not required to file suit in the Court of Claims. Rather, plaintiffs properly filed the instant suit in the Ingham Circuit Court.
IV CONCLUSION
We conclude that TCM, despite being the prevailing party in the Court of Appeals, has standing to appeal the decision of that Court because it was nonetheless aggrieved by the Court of Appeals decision. Moreover, we agree with the Court of Appeals that, under MCL 124.507(2), defendant TCM is a juridical entity that is subject to suit. Finally, we conclude that the Court of Appeals erred in concluding that TCM is a “state agency” under MCL 600.6419(1)(a). Instead, we hold that TCM is not a state agency, and thus plaintiffs were not required to file suit in the Court of Claims. Accordingly, we affirm the judgment of the Court of Appeals in part, reverse it in part, and remand this case to the Ingham Circuit Court for further proceedings consistent with this opinion.
Taylor, C.J., and Corrigan and Young, JJ., concurred with Markman, J.
TCM was created pursuant to an agreement between the Michigan State Police (MSP), the Ingham County Sheriffs Office, the Eaton County Sheriffs Department, the Clinton County Sheriffs Department, the Lansing Police Department, the East Lansing Police Department, the Lansing Township Police Department, and the Lansing office of the Federal Bureau of Investigation. The overarching responsibility for TCM rests in its command board; each of the signatories to the interlocal agreement appoints one representative to the command board. Day-today operations are run by a representative of the MSE
MCL 566.132 provides:
(1) In the following cases an agreement, contract, or promise is void unless that agreement, contract, or promise, or a note or memorandum of the agreement, contract, or promise is in writing and signed with an authorized signature by the party to be charged with the agreement, contract, or promise:
(b) A special promise to answer for the debt,' default, or misdoings of another person.
We asked the parties to consider:
(1) whether, in light of the statement in the Court of Appeals judgment that a breach of contract action against [TCM] was possibly viable in the Court of Claims, TCM was an aggrieved party entitled to appeal, despite the Court of Appealsafflrmance of the Ingham Circuit Court’s grant of summary disposition on all grounds; and (2) whether the Court of Appeals erred in ruling that TCM is equivalent to a state agency. [480 Mich 929 (2007).]
The most compelling objection to this conclusion is that any injury to TCM is merely hypothetical, because there was no certainty that plaintiffs would, in fact, sue TCM in the Court of Claims. To have standing, a party’s injury must be “actual or imminent,” not “conjectural or hypothetical.” Nat’l Wildlife Federation, supra at 628. Whatever the merits of this argument immediately after the Court of Appeals decision, this argument is now moot because plaintiffs have already filed the contract claim against TCM in the Court of Claims. Hence, TCM’s injury is not hypothetical; TCM is currently facing an actual lawsuit because of the Court of Appeals decision. Accordingly, TCM’s injury is not conjectural or hypothetical.
Moreover, as argued above, MCL 124.507(2) distinguishes between activities that must be “authorized” before an entity may undertake them and activities that do not require such authorization. Essentially, TCM asks this Court to rewrite the statute to include the permission to sue and be sued in the list of activities that must be authorized. However, “our job is not to rewrite the statute and we direct plaintiff to the Legislature for any relief that might be forthcoming.” Numerick v Krull, 265 Mich App 232, 235; 694 NW2d 552 (2005).
Although Hanselman addressed the APA, and not the BJA, which is at issue in this case, it did consider whether a board was a “state” board. Similarly, the critical issue here is whether TCM — which assuredly is an “agency” of some sort — is a “state” agency. Because Hanselman addressed a similar issue, we find Hanselman pertinent to this case.
The licensing board consisted of the director of the Department of State Police, the county prosecuting attorney, and the county sheriff. Hanselman, supra at 188.
We note that Hanselman concluded that the fact that an entity had been created by a state statute did not necessarily require a finding that the entity was a “state” entity. Hanselman, supra at 187. We agree that this factor is not dispositive; however, when an entity is created not by a state statute but pursuant to local action, as is the case here, this fact suggests that the entity is not a “state” entity.
However, state employees of the MSP who work with TCM are paid with state funds. This limited use of state money does not, in our judgment, detract from the conclusion that TCM itself is not principally funded by the state. | [
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Per CURIAM.
At issue in this wrongful-death, medical-malpractice action is whether plaintiffs notice of intent was sufficient with respect to the defendant physician, Michael A. Lauer, M.D. The trial court granted defendants’ motion for summary disposition, holding that plaintiffs notice of intent was not sufficient, and the Court of Appeals reversed with respect to the grant of summary disposition to Lauer. 272 Mich App 621; 728 NW2d 471 (2006).
Regarding causation, the notice of intent states: “If the standard of care had been followed, [David] Waltz would not have died on October 11, 2001.” This statement does not describe the “manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice,” as required by MCL 600.2912b(4)(e). Even when the notice is read in its entirety, it does not describe the manner in which the breach was the proximate cause of the injury. When so read, the notice merely indicates that Lauer caused a perforation and that he then failed to do several things that he presumably should have done, such as perform a pericardiocentesis in a timely manner. However, the notice does not describe the manner in which these actions or the lack thereof caused Waltz’s death. As this Court explained in Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 699-700 n 16; 684 NW2d 711 (2004) (Roberts II), “it is not sufficient under this provision to merely state that defendants’ alleged negligence caused an injury. Rather, § 2912b(4)(e) requires that a notice of intent more precisely contain a statement as to the manner in which it is alleged that the breach was a proximate cause of the injury.” (Emphasis in original.)
Although the instant notice of intent may conceivably have apprised Lauer of the nature and gravamen of plaintiffs allegations, this is not the statutory standard; § 2912b(4)(e) requires something more. In particular, it requires a “statement” describing the “manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice.” MCL 600.2912b(4)(e). The notice at issue here does not contain such a statement.
On the other hand, as we also explained in Roberts II, 470 Mich at 694, § 2912b(4) does not require a plaintiff to provide statements in the notice that “ultimately [must] be proven, after discovery and trial, to be correct and accurate in every respect.” We recognize that a “notice of intent is provided at the earliest stage of a medical malpractice proceeding,” id. at 691, and, thus, a plaintiff need only “specify what it is that she is claiming under each of the enumerated categories in § 2912b(4),” id. at 701 (emphasis in original). As long as these claims are made in good faith, the notice is not rendered insufficient simply because it is later discovered that the claims are imperfect or inaccurate in some respect. Id. at 692 n 7.
This Court has already held that a defective notice of intent does not toll the period of limitations. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 64; 642 NW2d 663 (2002) (Roberts I). Plaintiff now argues that even if the notice here did not toll the period of limitations, under MCL 600.5856(a) and MCL 600.2912d(l), the filing of the complaint and the affidavit of merit did toll the period. See Kirkaldy v Rim, 478 Mich 581; 734 NW2d 201 (2007) (holding that the filing of the complaint and affidavit of merit tolls the period of limitations, at least until the sufficiency of the affidavit is successfully challenged). We respectfully disagree.
MCL 600.2912b(l) states that “a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.” MCL 600.2912b(4) states that the “notice given to a health professional or health facility under this section shall contain a statement of at least all of the following....” Therefore, a plaintiff cannot commence an action before he or she files a notice of intent that contains all the information required under § 2912b(4). See Roberts I, 466 Mich at 64 (holding that the period of limitations is not tolled unless notice is given in compliance with all the provisions of § 2912b[4]). Because plaintiffs notice of intent here did not contain all the information required under § 2912b(4), she could not have commenced an action. Therefore, her complaint and affidavit of merit could not have tolled the period of limitations.
This case is distinguishable from Kirkaldy, because there the plaintiff presumably filed a notice of intent that satisfied § 2912b (4) (e). We concluded that the plaintiffs subsequent filing of a complaint and an affidavit of merit, which was later determined to be defective, tolled the period of limitations until the affidavit’s sufficiency was successfully challenged. In this case, however, plaintiff failed to file a notice of intent that satisfied the requirements of § 2912b (4) (e), and, thus, plaintiff was not yet authorized to file a complaint and an affidavit of merit. Therefore, the filing of the complaint and the affidavit of merit that plaintiff was not yet authorized to file could not possibly have tolled the period of limitations.
Because we conclude that plaintiffs notice of intent with regard to Lauer did not satisfy the requirements of § 2912b (4) (e), we reverse in part the judgment of the Court of Appeals and reinstate the trial court’s order granting summary disposition to Lauer. Finally, we deny plaintiffs application for leave to appeal as a cross-appellant because we are not persuaded that we should review the question presented.
Taylor, C.J., and Corrigan, Young, and Markman, JJ., concurred.
The dissent contends that the notice does contain such a statement because, according to the dissent, it states that “Lauer negligently caused Waltz’s death by the continued administration of an anticoagulant after internal bleeding was detected.” Post at 567. However, contrary to the dissent’s contention, this statement cannot be found anywhere in the notice of intent. Instead, the notice only states that defendants “[flailed to timely recognize the perforation and stop the anticoagulation and order an eehoeardiogram[.]” Nowhere in the notice does plaintiff state the “manner in which [this failure] was the proximate cause of the injury claimed in the notice.” MCL 600.2912b(4)(e).
The dissent complains that defendant waited until it was “too late to correct an alleged deficiency” to raise it. Post at 565. However, as we explained in Roberts I, 466 Mich at 59, “MCL 600.2912b places the burden of complying with the notice of intent requirements on the plaintiff and does not implicate a reciprocal duty on the part of the defendant to challenge any deficiencies in the notice before the complaint is filed.” Further, the case the dissent rehes on for its position that “dismissal on the basis of a deficient notice of intent [is] inappropriate when there was no prejudice to the recipient,” post at 570, citing Lisee v Secretary of State, 388 Mich 32; 199 NW2d 188 (1972), did not involve the notice of intent specifically required by § 2912b. Further, in Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 213; 731 NW2d 41 (2007), this Court, in contrast to the holding in Lisee, 388 Mich at 45, made clear that a prejudice requirement cannot be read into a statutory notice provision that does not itself contain such a requirement. The Rowland Court’s approach is most consistent with our goal to uphold the Legislature’s intent by honoring the Legislature’s choice of language. Our adherence to Rowland explains why we treat the statutory language at issue here differently from how Lisee treated the statutory language at issue in that case.
MCL 600.5856(a) states that the filing of a complaint tolls the period of hmitations. MCL 600.2912d(l) requires a medical-malpractice plaintiff to file an affidavit of merit with the complaint.
The dissent argues that, pursuant to MCL 600.2301, we should remand this case to the trial court to allow plaintiff to amend her notice of intent. MCL 600.2301 provides:
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.
As discussed above, because the notice of intent was deficient, no action is pending, and § 2301 only applies to pending actions. In addition, § 2301 only applies to a “process, pleading, or proceeding.” Although the dissent acknowledges that a notice of intent is not a pleading, it argues that a notice of intent is a “proceeding.” Post at 568 and n 6. However, contrary to the dissent’s contention, our decision in Fildew v Stockard, 256 Mich 494; 239 NW 868 (1932), did not even discuss the meaning of the term “proceeding.” Moreover, any discussion in Fildew regarding whether the statute permitted amendment was dictum in light of the fact that the Court first concluded that the defendants had waived any objection to the plaintiffs misdescription in the summons and the affidavits for writs of garnishment of the state in which the defendant company was incorporated. Id. at 496. Likewise, our decision in Tudryck v Mutch, 320 Mich 99, 107; 30 NW2d 518 (1948), did not discuss the meaning of the term “proceeding.” Nor did we apply the predecessor of § 2301 to amend the settlement agreement in Tudryck, as demonstrated by the fact that we found it “unnecessary to [even] determine [whether] the settlement agreement was defective ....” Id. Neither of these cases stands in any way for the proposition that a notice of intent constitutes a “proceeding.” | [
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Court of Appeals No. 287433. | [
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Orders Granting Oral Argument in Cases Pending on Application for Leave to Appeal May 8, 2009:
We direct the clerk to schedule oral argument on whether to grant the application or take other peremptory action. MCR 7.302(G)(1). The parties shall submit supplemental briefs within 56 days of the date of this order addressing the following issues: (1) whether a school district’s use of government resources for a payroll deduction plan for contributions made by members of plaintiff Michigan Education Association (MEA) to MEA’s political action committee is either an “expenditure” or a “contribution” under § 6 of the Michigan Campaign Finance Act (MCFA), MCL 169.206; (2) whether § 57(1) of the MCFA, MCL 169.257(1), prohibits a school district from expending government resources for such a payroll deduction plan if the costs of the plan are prepaid by the MEA; and (3) whether a school district has the authority to collect and deliver payroll deductions for such contributions. The parties should not submit mere restatements of their application papers. | [
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] |
Court of Appeals No. 278567. | [
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] |
Court of Appeals No. 279521. | [
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] |
Summary Disposition May 29, 2009:
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration, as on leave granted, of whether 25 points were properly assessed for offense variable 13 (MCL 777.43), and whether the trial court satisfied the provisions of MCL 767.61a when, without objection by the defendant, it reviewed documents but did not call witnesses in determining that the defendant was a sexually delinquent person. 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. Court of Appeals No. 287411.
Weaver, J. I would not remand this case because I am not persuaded that this Court should take action, particularly where it appears that the second issue was not even preserved for appeal.
Young, J. I join the statement of Justice WEAVER. | [
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] |
Court of Appeals No. 287053. | [
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] |
Leave to Appeal Granted June 23, 2009:
On order of the Court, the application for leave to appeal the June 5, 2008, judgment of the Court of Appeals is considered, and it is granted, limited to the issue whether the legislative sentencing guidelines, MCL 777.1 et seq., applied to the defendant’s sentence and, if so, whether the defendant is entitled to be resentenced. The parties may wish to compare the result in this case with the result in People v Walton, unpublished opinion per curiam of the Court of Appeals, issued June 3, 2008 (Docket No. 276161).
We further order the St. Joseph Circuit Court, in accordance with Administrative Order No. 2003-3, to determine whether the defendant is indigent and, if so, to appoint counsel to represent the defendant in this Court.
Kelly, C.J. I would also grant leave to appeal with respect to the defendant’s challenge to the constitutionality of MCL 768.27a, for the reasons set forth in my dissenting statement in People v Xiong, 483 Mich 951 (2009). | [
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] |
Court of Appeals No. 282121. | [
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Court of Appeals No. 279431. | [
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] |
Court of Appeals No. 277240. | [
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] |
The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 283349. | [
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] |
Court of Appeals No. 286613.
Hathaway, J., did not participate. | [
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Court of Appeals No. 289856. | [
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] |
Court of Appeals No. 283620. | [
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] |
Court of Appeals No. 278831.
Hathaway, J., did not participate. | [
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] |
Court of Appeals No. 284494. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 286763. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 285533. | [
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] |
Court of Appeals No. 279500. | [
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Court of Appeals No. 281481.
Kelly, C.J., and Cavanagh and Hathaway, JJ. We would grant leave to appeal. | [
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] |
Court of Appeals No. 278790. | [
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Court of Appeals No. 278169. | [
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] |
The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 283877. | [
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] |
Court of Appeals No. 279001. | [
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] |
Court of Appeals No. 277098. | [
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] |
Reconsideration Denied April 17, 2009:
Court of Appeals No. 285208. | [
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Court of Appeals No. 290803. | [
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-51
] |
Court of Appeals No. 285270. | [
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] |
Court of Appeals No. 286560. | [
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] |
Court of Appeals No. 279588.
Hathaway, J. I would grant leave to appeal. | [
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] |
Court of Appeals No. 280212. | [
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] |
Court of Appeals Nos. 281464 and 281465. | [
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Court of Appeals No. 278955. | [
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] |
Court of Appeals No. 287960. | [
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] |
Court of Appeals No. 286317. | [
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Court of Appeals No. 285651. | [
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] |
Court of Appeals No. 281551. | [
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] |
Court of Appeals No. 285291.
Cavanagh, J., did not participate due to a familial relationship with counsel of record. | [
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Court of Appeals No. 277214. | [
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] |
Court of Appeals No. 279924. | [
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] |
Court of Appeals No. 275750. | [
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] |
Summary Disposition April 10, 2009:
Pursuant to MCR 7.302(G)(1), we vacate the judgment of the Court of Appeals and we remand this case to the Ingham Circuit Court. In light of the unique procedural facts of this case, the circuit court shall afford the plaintiff direct review of his challenge to the defendant’s hearings officer’s decision, as presented in File No. 04-001149-AA. Court of Appeals No. 277809. | [
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Leave to Appeal Denied June 3, 2009:
Court of Appeals No. 277762.
Kelly, C.J., and Cavanagh, J. We would grant leave to appeal. | [
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] |
Court of Appeals No. 280429. | [
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We direct the clerk to schedule oral argument on whether to grant the application or take other peremptory action. MCR 7.302(G)(1). We order the Wayne Circuit Court, in accordance with Administrative Order No. 2003-3, to promptly determine whether the defendant is indigent and, if so, to immediately appoint Julie E. Gilfix, if feasible, to represent the defendant in this Court. If this appointment is not feasible, the trial court shall, within the same time frame, appoint other counsel to represent the defendant in this Court. At oral argument, the parties shall address whether evidence that a child was present in the home when the defendant was in possession of concealed drugs and weapons is legally sufficient to support the defendant’s conviction for doing an act that tended to cause a child to become neglected or delinquent so as to tend to come under the jurisdiction of the juvenile division of the probate court. MCL 750.145. The parties may file supplemental briefs within 42 days of the appointment of appellate defense counsel, but they should not submit mere restatements of their application papers. Court of Appeals No. 278826. | [
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Court of Appeals No. 287270.
Hathaway, J., did not participate. | [
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Leave to Appeal Denied January 9, 2009:
The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 283337.
Hathaway, J., did not participate. | [
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] |
Court of Appeals No. 257333.
Kelly, C.J., and Cavanagh, J. We would grant leave to appeal. | [
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] |
Court of Appeals No. 290555. | [
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Summary Disposition January 16, 2009:
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for reconsideration of that part of the defendant’s application challenging the imposition of attorney fees in light of People v Trapp (On Remand), 280 Mich App 598 (2008), and the prosecution’s concessions that the trial court failed to articulate that it considered the defendant’s ability to pay the cost of his court-appointed attorney at the time of sentencing and that a remand is necessary to enable the court to do so. 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. Court of Appeals No. 283172. | [
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Court of Appeals No. 286315. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 285357.
Hathaway, J., did not participate. | [
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] |
Court of Appeals No. 287375. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 285185. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 286443. | [
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] |
Pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals. The Court of Appeals erred in ruling that, because Mahar/EWIE, LLC’s (the LLC) operating agree ment is ambiguous regarding whether the members of the LLC must agree to dissolution notwithstanding a termination date listed in the articles of organization, the Washtenaw Circuit Court’s grant of summary disposition to the plaintiffs on their claim for judicial dissolution of the LLC must be reversed. MCL 450.4801 provides that “[a] limited liability company is dissolved and its affairs shall be wound up when the first of the following occurs: (1) automatically at the time specified in the articles of organization.” Accordingly, any ambiguity in the operating agreement is irrelevant, given the termination date specified in the articles of organization. We remand this case to the Washtenaw Circuit Court for reconsideration of the plaintiffs’ motion for summary disposition on their claim for judicial dissolution, in light of MCL 450.4515(l)(b), which provides that if a member of a limited liability company establishes that the acts of managers or members in control of a limited liability company are illegal or fraudulent or constitute willfully unfair and oppressive conduct toward the limited liability company or the member, “the circuit court may issue an order or grant relief as it considers appropriate, including . .. the cancellation or alteration of a provision in the articles of organization.” We do not disturb the Court of Appeals’ reversal of the circuit court’s grant of summary disposition to the plaintiffs on the defendant’s counterclaim and third-party complaint. 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. Court of Appeals No. 276646. | [
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Court of Appeals No. 289248. | [
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] |
Court of Appeals No. 277259. | [
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] |
Reconsiderations Denied May 27, 2009:
Court of Appeals No. 285529. | [
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] |
Court of Appeals No. 276849. | [
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] |
Court of Appeals No. 283970. | [
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-70
] |
Court of Appeals No. 289308. | [
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CORRIGAN, J.
(dissenting). I respectfully dissent from the order denying defendant’s application for leave to appeal. I would grant leave to appeal in this no-fault insurance case involving an award of attorney fees. The Court of Appeals majority erroneously concluded that defendant’s delay in paying personal protection insurance (PIP) benefits was unreasonable. In my view, the dissenting judge in the Court of Appeals properly articulated the governing legal principles. Univ Rehabilitation Alliance, Inc v Farm Bureau Gen Ins Co, 279 Mich App 691, 704-706 (2008).
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant’s insured suffered serious brain injuries when her boyfriend allegedly pushed her from a moving motor vehicle. The insured’s boyfriend was criminally charged for this assault. Defendant, Farm Bureau General Insurance Company, the no-fault insurer, initially refused to pay the claim of plaintiff, University Rehabilitation Alliance, Inc., for benefits on the ground that if the insured’s injuries resulted from an assault, they are exempt from no-fault coverage under MCL 500.3106(4). Plaintiff filed suit, challenging defendant’s initial refusal to pay PIP benefits. After the insured’s boyfriend was acquitted of criminal assault, defendant voluntarily paid plaintiffs claim with interest. Nevertheless, plaintiff asserted that defendant’s delay was unreasonable and moved for attorney fees under MCL 500.3148(1). The trial court awarded plaintiff attorney fees. The majority in the Court of Appeals affirmed, while the dissent concluded that defendant’s delay in paying PIP benefits was reasonable because binding precedent exempts injuries resulting from an assault in a motor vehicle from no-fault coverage.
II. REASONABLENESS UNDER MCL 500.3148(1)
When a no-fault insurer refuses or delays payment of PIP benefits, it has the burden of justifying its refusal or delay under MCL 500.3148(1). Ross v Auto Club Group, 481 Mich 1, 11 (2008). “The insurer can meet this burden by showing that the refusal or delay is the product of a legitimate question of statutory construction, constitutional law, or factual uncertainty.” Id. When a reviewing court makes this inquiry, the determinative factor “is not whether the insurer ultimately is held responsible for benefits, but whether its initial refusal to pay was unreasonable.” Id.
Defendant’s initial refusal to pay benefits was reasonable. Until defendant learned that the insured’s boyfriend had been acquitted of criminal assault, it was legitimately factually uncertain about the true cause of its insured’s injury. Relying on authority from this Court, defendant properly believed that PIP benefits were not payable if the insured’s injuries arose from a criminal assault. McKenzie v Auto Club Ins Ass’n, 458 Mich 214, 225-226 (1998); Bourne v Farmers Ins Exch, 449 Mich 193, 198 (1995); Thornton v Allstate Ins Co, 425 Mich 643, 659 (1986). In Ross, this Court concluded that the defendant’s denial of benefits was reasonable because the defendant had “relied on a factually similar Court of Appeals decision to adopt a reasonable position on an issue of first impression.” Id. at 15. Here, defendant similarly adopted a reasonable position in rebanee on analogous precedent. Additionally, defendant rebed on this Court’s seemingly blanket statement that “assaults occurring in a motor vehicle are not closely related to the transportational function of a motor vehicle.” McKenzie, supra at 222. I see no appreciable distinction between defendant’s position here and that of the defendant in Ross. In both cases, the defendants relied on earlier caselaw concerning similar issues to adopt a reasonable position regarding payment of benefits. Indeed, as soon as defendant learned that its insured’s boyfriend had been acquitted of criminal assault, it voluntarily paid plaintiff more than $187,908 of benefits and $16,000 of interest. Consequently, defendant’s initial refusal to pay was not unreasonable under the circumstances.
Moreover, defendant had a separate legitimate question of statutory interpretation regarding MCL 500.3105. The only competing versions of the events involved intentional conduct: Did the boyfriend assault the insured, or did she jump from the moving vehicle? A claimant’s bodily injury is accidental “unless suffered intentionally by the injured person or caused intentionally by the claimant.” MCL 500.3105(4). In this case, defendant’s attempted investigation of the veracity of the insured’s claim that her boyfriend had assaulted her was stymied by the ongoing criminal investigation. Defendant could not interview the criminal defendant-boyfriend. Moreover, during his criminal trial, the insured’s boyfriend testified that defendant’s insured had jumped from the moving vehicle. In contrast, the insured testified that her boyfriend had pushed her. The jury apparently accepted the boyfriend’s version of events and acquitted him of all charges. On these facts, the contest is between two versions of “intentional” conduct, and under one version of events, the injuries suffered by the insured were not “accidental” because the insured’s injuries were “suffered intentionally ... or caused intentionally by the claimant.” MCL 500.3145(4). If its insured intentionally jumped from the moving vehicle (in what appears to me to be) an apparent suicide attempt, defendant could not have unreasonably delayed in making PIP payments because there was no “accidental” injury. This is a second ground for a determination that the delay in payment reasonable.
III. JUSTICE WEAVER’S CONSISTENT INTERPRETATION OF MCL 500.3105
This Court recently heard arguments in a case involving the award of no-fault benefits under MCL 500.3105 to a fleeing felon aiming a firearm at a pursuing police officer. Although we ultimately denied leave in Budget Rent-a-Car Sys, Inc v Detroit, two of my colleagues issued separate statements expressing divergent interpretations of MCL 500.3105. Justice Markman described the result as “extremely troubling,” but nevertheless agreed with this Court and the Court of Appeals that “the law is clear that an insurer is required to pay personal protection insurance benefits for any ‘accidental bodily injury arising out of the ... use of a motor vehicle as a motor vehicle . . . .’ ” Justice WEAVER dissented, explaining that “[t]he claimant was not entitled to no-fault benefits because his injuries did not arise out of an ‘accidental bodily injury’ as defined in MCL 500.3105. The injuries sustained by the claimant occurred as a result of the claimant’s use of a vehicle rented from the plaintiff for the commission of criminal acts.” Justice Weaver further reasoned that, “[wjhile the claimant may not have intended to be injured, he ‘caused’ his injuries by intentionally engaging in criminal behavior that put him at risk of injury and in fact resulted in his injuries.” Accordingly, Justice Weaver concluded: “Because the claimant did not act, or refrain from acting, ‘for the purpose of averting injury to ... any person including himself,’ the claimant’s injuries were not ‘accidental.’ . .. Any remedy for plaintiffs error in mistakenly paying the claimant no-fault benefits for injury stemming from the claimant’s intentional criminal activity must be pursued against the claimant.” My colleagues’ differing interpretations of MCL 500.3105 further suggest that a legitimate issue of statutory interpretation indeed existed in this case.
IV ADDITIONAL RELEVANT CASELAW
Several decisions underscore my conclusion regarding the existence of a legitimate question of statutory interpretation. In American Alternative Ins Co, Inc v York, 470 Mich 28, 32 (2004), the Court held that under MCL 500.3135(3)(a), “courts are to review only whether the defendant intended to cause the harm that resulted.” Therefore, even though the evidence revealed that the tortfeasor drove a vehicle while intoxicated and subsequently crashed into an ambulance, none of the evidence supported “a finding that [the tortfeasor] actually intended to collide with the ambulance and cause damage to it. Thus, under the language of the statute, because [the tortfeasor] did not intend to cause damage to the ambulance, he is immune from suit.” Id. at 32-33. Similarly, in Amerisure Ins Co v Auto-Owners Ins Co, 262 Mich App 10, 19 (2004), the Court of Appeals reasoned that “[a]n injured person acts intentionally under the no-fault act if he intended both the act causing the injury and the injury itself, and the finder of fact must focus on the person’s subjective intent.” (Emphasis in original.) Accordingly, the Court of Appeals held that the trial court did not abuse its discretion in considering a person’s level of intoxication as one factor when deciding whether he intended to injure himself. Id.
The caselaw concerning the issue of intent in no-fault insurance cases, however, continues to engender a variety of holdings. In Schultz v Auto-Owners Ins Co, 212 Mich App 199, 201 (1995), the Court of Appeals affirmed a trial court’s decision to grant summary disposition, thereby precluding the claimant from receiving PIP benefits. When faced with factual circumstances markedly similar to the facts in this case, the Court of Appeals explained that
the evidence showed that [the claimant] quarrelled with his girlfriend. He then jumped from a moving van that he was driving. Statements he made before jumping established that he did so either to elicit the girlfriend’s sympathy or to arouse feelings of guilt in her. Consequently, plaintiffs intent to cause himself injury can be inferred from the facts. He did not meet his burden of showing no intent to injure himself when he jumped, and defendant’s motion for summary disposition was properly granted.[ ]
Unlike the conclusion in Amerisure, the Schultz Court stated that “the fact that [the claimant] claimed to be voluntarily intoxicated at the time of the incident would not vitiate or mitigate his intent.” Moreover, in Miller v Farm Bureau Mut Ins Co, 218 Mich App 221, 225-226 (1996), the Court of Appeals held that the insured’s suicide attempt in crashing his vehicle into a tree was intentional and that the insured therefore was not entitled to PIP benefits, even though the insured was suffering from mental illness. Additionally, this Court has held that a driver who was shot while occupying a motor vehicle was not entitled to benefits where shots were fired during the continuation of an argument that had begun before the automobile chase and the involvement of automobiles was incidental under MCL 500.3105(1). Marzonie v Auto Club Ins Ass’n, 441 Mich 522, 534 (1992).
Accordingly, because the Court of Appeals erred when it concluded that defendant’s initial refusal to pay benefits was unreasonable, I would grant defendant’s application for leave to appeal.
Markman, J. I join the statement of Justice Corrigan.
MCL 500.3105(1) requires an insurer to pay PIP benefits for any “accidental bodily injury arising out of the . . . use of a motor vehicle as a motor vehicle . . . .” MCL 500.3105(4) further provides:
Bodily injury is accidental as to a person claiming personal protection insurance benefits unless suffered intentionally by the injured person or caused intentionally by the claimant. Even though a person knows that bodily injury is substantially certain to be caused by his act or omission, he does not cause or suffer injury intentionally if he acts or refrains from acting for the purpose of averting injury to property or to any person including himself.
Budget Rent-a-Car Sys, Inc v Detroit, 482 Mich 1098 (2008).
Budget Rent-a-Car Sys, supra at 1098-1099 (Markman, J., concurring).
Budget Rent-a-Car Sys, Inc v Detroit, supra at 1099-1100 (WEAVER, J., dissenting).
Id. at 1100.
Id. at 1101.
Except for Justice Markman, who filed a separate concurring opinion, the full Court signed the opinion per curiam issued in American Alternative Ins Co, Inc. Id. at 33.
See Miller v Farm Bureau Mut Ins Co, 218 Mich App 221, 226 (1996) (“One acts intentionally [for purposes of the no-fault act] if he intended both the act and the injury.”) (emphasis in original).
Chief Justice Kelly was a member of the Court of Appeals panel in Schultz.
Schultz, supra at 201-202.
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] |
The defendant’s motion to correct the presentence report was a successive motion for relief from judgment, which is prohibited by MCR 6.502(G). Court of Appeals No. 284140. | [
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] |
Court of Appeals No. 278571. | [
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The defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). Court of Appeals No. 284965. | [
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12,
9,
-23,
-45,
-14,
2,
56,
11,
14,
-26,
-19,
-4,
-30,
8,
12,
-34,
16,
-6,
2,
-22,
-32,
-19,
7,
28,
82,
28,
19,
-69,
9,
31,
20,
-33,
-47,
-4,
-7,
-1,
-13,
0,
-14,
26,
-29,
7,
-25,
-62,
-13,
-33,
30,
-72,
-20,
37,
1,
-6,
9,
15,
38,
29,
-13,
4,
23,
30,
-20,
26,
15,
18,
36,
44,
-11,
28,
-4,
25,
62,
86,
-65,
21,
39,
29,
9,
6,
55,
43,
7,
10,
-11
] |
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