MICHIGAN REPORTS
CASES DECIDED
IN THE
SUPREME COURT
OF
MICHIGAN
FROM
January 27, 2005 to July 6, 2005
DANILO ANSELMO
REPORTER OF DECISIONS
VOL. 472
FIRST EDITION
2005
Copyright 2005, by Michigan Supreme Court
The paper used in this publication meets the minimum
requirements of American National Standard for Information
Sciences—Permanence of Paper for Printed Library Materials,
ANSI Z39.48-1984.
SUPREME COURT
T
ERM
E
XPIRES
J
ANUARY
1
OF
C
HIEF
J
USTICE
CLIFFORD W. TAYLOR, L
AINGSBURG
.................................................... 2009
J
USTICES
MICHAEL F. CAVANAGH, E
AST
L
ANSING
............................................. 2007
ELIZABETH A. WEAVER, G
LEN
A
RBOR
............................................... 2011
MARILYN KELLY, B
LOOMFIELD
H
ILLS
.................................................... 2013
MAURA D. CORRIGAN, G
ROSSE
P
OINTE
P
ARK
...................................... 2007
ROBERT P. YOUNG, J
R
., G
ROSSE
P
OINTE
P
ARK
...................................... 2011
STEPHEN J. MARKMAN, M
ASON
........................................................ 2013
C
OMMISSIONERS
GLEN M. BIS, C
HIEF
C
OMMISSIONER
1
MICHAEL J. SCHMEDLEN, C
HIEF
C
OMMISSIONER
2
SHARI M. OBERG, D
EPUTY
C
HIEF
C
OMMISSIONER
2
JOHN K. PARKER DON W. ATKINS
TIMOTHY J. RAUBINGER JÜRGEN O. SKOPPEK
LYNN K. RICHARDSON DANIEL C. BRUBAKER
KATHLEEN A. FOSTER MICHAEL S. WELLMAN
NELSON S. LEAVITT GARY L. ROGERS
DEBRA A. GUTIERREZ-M
C
GUIRE RICHARD B. LESLIE
PATRICK J. WRIGHT
3
FREDERICK M. BAKER, J
R
.
ANNE-MARIE HYNOUS VOICE KATHLEEN M. DAWSON
4
RUTH E. ZIMMERMAN
5
S
TATE
C
OURT
A
DMINISTRATOR:
CARL L. GROMEK
C
LERK:
CORBIN R. DAVIS
C
RIER:
DAVID G. PALAZZOLO
R
EPORTER OF
D
ECISIONS:
DANILO ANSELMO
1
Died February 13, 2005.
2
From March 18, 2005.
3
To June 17, 2005.
4
From March 7, 2005.
5
From July 1, 2005.
iii
COURT OF APPEALS
T
ERM
E
XPIRES
J
ANUARY
1
OF
C
HIEF
J
UDGE
WILLIAM C. WHITBECK, L
ANSING
................................................... 2011
C
HIEF
J
UDGE
P
RO
T
EM
MICHAEL R. SMOLENSKI, G
RAND
R
APIDS
....................................... 2007
Judges
DAVID H. SAWYER,
G
RAND
R
APIDS
.................................................. 2011
WILLIAM B. MURPHY,
G
RAND
R
APIDS
............................................. 2007
MARK J. CAVANAGH,
R
OYAL
O
AK
................................................... 2009
RICHARD ALLEN GRIFFIN,
T
RAVERSE
C
ITY
.................................... 2009
1
JANET T. NEFF, G
RAND
R
APIDS
.......................................................... 2007
KATHLEEN JANSEN,
S
T.
C
LAIR
S
HORES
............................................ 2007
E. THOMAS FITZGERALD,
O
WOSSO
................................................ 2009
HELENE N. WHITE,
D
ETROIT
............................................................ 2011
HENRY WILLIAM SAAD,
B
LOOMFIELD
H
ILLS
.................................... 2009
RICHARD A. BANDSTRA,
G
RAND
R
APIDS
........................................ 2009
JOEL P. HOEKSTRA,
G
RAND
R
APIDS
.................................................. 2011
JANE E. MARKEY,
G
RAND
R
APIDS
..................................................... 2009
PETER D. O’CONNELL,
M
T.
P
LEASANT
............................................. 2007
HILDA R. GAGE,
B
LOOMFIELD
H
ILLS
.................................................. 2007
MICHAEL J. TALBOT,
G
ROSSE
P
OINTE
F
ARMS
.................................... 2009
KURTIS T. WILDER,
C
ANTON
............................................................ 2011
BRIAN K. ZAHRA,
N
ORTHVILLE
......................................................... 2007
PATRICK M. METER,
S
AGINAW
......................................................... 2009
DONALD S. OWENS,
W
ILLIAMSTON
................................................... 2011
JESSICA R. COOPER,
B
EVERLY
H
ILLS
................................................ 2007
KIRSTEN FRANK KELLY,
G
ROSSE
P
OINTE
P
ARK
............................... 2007
CHRISTOPHER M. MURRAY,
G
ROSSE
P
OINTE
F
ARMS
........................ 2009
PAT M. DONOFRIO,
C
LINTON
T
OWNSHIP
............................................. 2011
KAREN FORT HOOD,
D
ETROIT
......................................................... 2009
BILL SCHUETTE,
M
IDLAND
............................................................... 2009
STEPHEN L. BORRELLO,
S
AGINAW
.................................................. 2007
C
HIEF
C
LERK:
SANDRA SCHULTZ MENGEL
R
ESEARCH
D
IRECTOR:
LARRY S. ROYSTER
1
Resigned June 26, 2005.
iv
CIRCUIT JUDGES
T
ERM
E
XPIRES
J
ANUARY
1
OF
1. MICHAEL R. SMITH, J
ONESVILLE
,..................................... 2009
2. ALFRED M. BUTZBAUGH, B
ERRIEN
S
PRINGS
,.................. 2007
JOHN M. DONAHUE, S
T
.J
OSEPH
,.................................... 2011
CHARLES T. L
A
SATA, B
ENTON
H
ARBOR
,............................ 2011
PAUL L. MALONEY, S
T
.J
OSEPH
, ...................................... 2009
3. DAVID J. ALLEN, D
ETROIT
,................................................ 2009
WENDY M. BAXTER, D
ETROIT
,......................................... 2007
ANNETTE J. BERRY, P
LYMOUTH
, ...................................... 2007
GREGORY D. BILL, N
ORTHVILLE
T
WP
.,.............................. 2007
SUSAN D. BORMAN, D
ETROIT
,.......................................... 2009
ULYSSES W. BOYKIN, D
ETROIT
, ....................................... 2009
MARGIE R. BRAXTON, D
ETROIT
, ..................................... 2011
HELEN E. BROWN, G
ROSSE
P
OINTE
P
ARK
,........................ 2009
WILLIAM LEO CAHALAN, G
ROSSE
I
LE
,........................... 2007
BILL CALLAHAN, D
ETROIT
, ............................................. 2009
JAMES A. CALLAHAN, G
ROSSE
P
OINTE
, ........................... 2011
MICHAEL J. CALLAHAN, B
ELLEVILLE
, ............................. 2009
JAMES R. CHYLINSKI, G
ROSSE
P
OINTE
W
OODS
, ............... 2011
ROBERT J. COLOMBO, J
R
., G
ROSSE
P
OINTE
,.................... 2007
SEAN F. COX, C
ANTON
T
WP
.,.............................................. 2011
DAPHNE MEANS CURTIS, D
ETROIT
,............................... 2009
CHRISTOPHER D. DINGELL, T
RENTON
,......................... 2009
GERSHWIN ALLEN DRAIN, D
ETROIT
, ............................ 2011
MAGGIE DRAKE, D
ETROIT
,............................................... 2011
PRENTIS EDWARDS, D
ETROIT
, ........................................ 2007
VONDA R. EVANS, D
EARBORN
, .......................................... 2009
EDWARD EWELL, J
R
., D
ETROIT
, ....................................... 2007
PATRICIA SUSAN FRESARD, G
ROSSE
P
OINTE
W
OODS
, .... 2011
JOHN H. GILLIS, J
R
., G
ROSSE
P
OINTE
,.............................. 2009
WILLIAM J. GIOVAN, G
ROSSE
P
OINTE
F
ARMS
, ................... 2009
DAVID ALAN GRONER, G
ROSSE
P
OINTE
P
ARK
, ................ 2011
RICHARD B. HALLORAN, J
R
., D
ETROIT
,.......................... 2007
AMY PATRICIA HATHAWAY, G
ROSSE
P
OINTE
P
ARK
,........ 2007
v
T
ERM
E
XPIRES
J
ANUARY
1
OF
CYNTHIA GRAY HATHAWAY, D
ETROIT
,.......................... 2011
DIANE MARIE HATHAWAY, G
ROSSE
P
OINTE
P
ARK
, ......... 2011
MICHAEL M. HATHAWAY, D
ETROIT
, ............................... 2011
THOMAS EDWARD JACKSON, D
ETROIT
,........................ 2007
VERA MASSEY JONES, D
ETROIT
, .................................... 2009
MARY BETH KELLY, G
ROSSE
I
LE
,..................................... 2009
TIMOTHY MICHAEL KENNY, L
IVONIA
,.......................... 2011
ARTHUR J. LOMBARD, G
ROSSE
P
OINTE
F
ARMS
,................ 2009
KATHLEEN I. MACDONALD, G
ROSSE
P
OINTE
W
OODS
, .... 2011
SHEILA GIBSON MANNING, D
ETROIT
, .......................... 2011
KATHLEEN M. McCARTHY, D
EARBORN
, .......................... 2007
WADE H. M
C
CREE, D
ETROIT
, ............................................ 2007
WARFIELD MOORE, J
R
., D
ETROIT
,................................... 2009
BRUCE U. MORROW, D
ETROIT
,......................................... 2011
JOHN A. MURPHY, P
LYMOUTH
T
WP
., ................................ 2011
SUSAN BIEKE NEILSON, G
ROSSE
P
OINTE
W
OODS
,........... 2009
MARIA L. OXHOLM, D
ETROIT
,.......................................... 2007
LITA MASINI POPKE, C
ANTON
, ....................................... 2011
DANIEL P.RYAN,R
EDFORD
,............................................... 2007
MICHAEL F. SAPALA, G
ROSSE
P
OINTE
P
ARK
, .................... 2007
RICHARD M. SKUTT, D
ETROIT
, ........................................ 2007
LESLIE KIM SMITH, N
ORTHVILLE
T
WP
.,........................... 2007
VIRGIL C. SMITH, D
ETROIT
, ............................................. 2007
JEANNE STEMPIEN, N
ORTHVILLE
,................................... 2011
CYNTHIA DIANE STEPHENS, D
ETROIT
, ........................ 2007
CRAIG S. STRONG, D
ETROIT
,............................................ 2009
BRIAN R. SULLIVAN, G
ROSSE
P
OINTE
P
ARK
,..................... 2011
DEBORAH A. THOMAS, D
ETROIT
,.................................... 2007
EDWARD M. THOMAS, D
ETROIT
, ..................................... 2009
ISIDORE B. TORRES, G
ROSSE
P
OINTE
P
ARK
,..................... 2011
MARY M. WATERSTONE, D
ETROIT
,................................. 2007
CAROLE F. YOUNGBLOOD, G
ROSSE
P
OINTE
,................... 2007
ROBERT L. ZIOLKOWSKI, N
ORTHVILLE
,.......................... 2009
4. EDWARD J. GRANT, J
ACKSON
,........................................... 2011
JOHN G. M
C
BAIN, J
R
., R
IVES
J
UNCTION
,............................ 2009
CHARLES A. NELSON, J
ACKSON
,...................................... 2007
CHAD C. SCHMUCKER, J
ACKSON
,.................................... 2011
5. JAMES H. FISHER, H
ASTINGS
, .......................................... 2009
6. JAMES M. ALEXANDER, B
LOOMFIELD
H
ILLS
, ................... 2009
MARTHA ANDERSON, T
ROY
,........................................... 2009
STEVEN N. ANDREWS, B
LOOMFIELD
H
ILLS
, ..................... 2009
RAE LEE CHABOT, F
RANKLIN
, .......................................... 2011
MARK A. GOLDSMITH, H
UNTINGTON
W
OODS
, .................. 2007
vi
T
ERM
E
XPIRES
J
ANUARY
1
OF
NANCI J. GRANT, W
EST
B
LOOMFIELD
,................................ 2009
DENISE LANGFORD-MORRIS, W
EST
B
LOOMFIELD
,......... 2007
CHERYL A. MATTHEWS, S
YLVAN
L
AKE
, .......................... 2011
JOHN JAMES M
C
DONALD, F
ARMINGTON
H
ILLS
, .............. 2011
FRED M. MESTER, B
LOOMFIELD
H
ILLS
,............................. 2009
RUDY J. NICHOLS, C
LARKSTON
, ........................................ 2009
COLLEEN A. O’BRIEN, R
OCHESTER
H
ILLS
, ....................... 2011
DANIEL PATRICK O’BRIEN, H
OLLY
, .............................. 2011
WENDY LYNN POTTS, B
IRMINGHAM
,................................ 2007
GENE SCHNELZ, N
OVI
,.................................................... 2009
EDWARD SOSNICK, B
LOOMFIELD
H
ILLS
, ........................... 2007
DEBORAH G. TYNER, F
RANKLIN
, ..................................... 2007
MICHAEL D. WARREN, J
R
., B
EVERLY
H
ILLS
,.................... 2007
JOAN E. YOUNG, B
LOOMFIELD
V
ILLAGE
,............................. 2011
7. DUNCAN M. BEAGLE, F
ENTON
,....................................... 2011
JOSEPH J. FARAH, G
RAND
B
LANC
,.................................... 2011
JUDITH A. FULLERTON, F
LINT
,..................................... 2007
JOHN A. GADOLA, F
ENTON
, ............................................. 2009
ARCHIE L. HAYMAN, F
LINT
,............................................ 2007
GEOFFREY L. NEITHERCUT, F
LINT
,............................. 2007
DAVID J. NEWBLATT, L
INDEN
,......................................... 2011
ROBERT M. RANSOM, F
LUSHING
,..................................... 2009
1
RICHARD B. YUILLE, F
LINT
, ........................................... 2009
8. DAVID A. HOORT, P
ORTLAND
,............................................ 2011
CHARLES H. MIEL, S
TANTON
, .......................................... 2009
9. STEPHEN D. GORSALITZ, P
ORTAGE
, .............................. 2011
J. RICHARDSON JOHNSON, P
ORTAGE
, ........................... 2007
RICHARD RYAN LAMB, K
ALAMAZOO
,................................ 2007
PHILIP D. SCHAEFER, P
ORTAGE
,..................................... 2011
WILLIAM G. SCHMA, K
ALAMAZOO
,.................................... 2009
10. FRED L. B ORCHARD, S
AGINAW
, ....................................... 2011
LEOPOLD P. BORRELLO, S
AGINAW
,................................. 2007
WILLIAM A. CRANE, S
AGINAW
,......................................... 2011
LYNDA L. HEATHSCOTT, S
AGINAW
,................................. 2007
ROBERT L. KACZMAREK, F
REELAND
,.............................. 2009
11. CHARLES H. STARK, M
UNISING
, ...................................... 2009
12. GARFIELD W. HOOD, P
ELKIE
, .......................................... 2009
13. THOMAS G. POWER, T
RAVERSE
C
ITY
,............................... 2011
PHILIP E. RODGERS, J
R
., T
RAVERSE
C
ITY
,....................... 2009
14. JAMES M. GRAVES, J
R
., M
USKEGON
, ................................ 2007
TIMOTHY G. HICKS, M
USKEGON
, ..................................... 2011
1
Retired May 31, 2005.
vii
T
ERM
E
XPIRES
J
ANUARY
1
OF
WILLIAM C. MARIETTI, N
ORTH
M
USKEGON
, .................... 2011
JOHN C. RUCK, W
HITEHALL
,.............................................. 2009
15. MICHAEL H. CHERRY, C
OLDWATER
, ................................. 2009
16. JAMES M. BIERNAT, S
R
., C
LINTON
T
WP
., ......................... 2011
RICHARD L. CARETTI, F
RASER
,....................................... 2011
MARY A. CHRZANOWSKI, H
ARRISON
T
WP
., ..................... 2011
DIANE M. DRUZINSKI, C
LINTON
T
WP
.,............................ 2009
PETER J. MACERONI, C
LINTON
T
WP
.,.............................. 2009
DONALD G. MILLER, H
ARRISON
T
WP
., ............................. 2007
DEBORAH A. SERVITTO, M
T.
C
LEMENS
, ......................... 2009
EDWARD A. SERVITTO, J
R
., W
ARREN
,............................. 2007
MARK S. SWITALSKI, R
AY
T
WP
., ..................................... 2007
MATTHEW S. SWITALSKI, C
LINTON
T
WP
.,...................... 2009
ANTONIO P.VIVIANO,C
LINTON
T
WP
.,............................. 2011
TRACEY A. YOKICH, S
T
.C
LAIR
S
HORES
,........................... 2013
17. GEORGE S. BUTH, G
RAND
R
APIDS
, ................................... 2011
KATHLEEN A. FEENEY, R
OCKFORD
, ................................ 2009
DONALD A. JOHNSTON, III, G
RAND
R
APIDS
, .................. 2007
DENNIS C. KOLENDA, R
OCKFORD
,................................... 2007
DENNIS B. LEIBER, G
RAND
R
APIDS
, ................................. 2007
STEVEN MITCHELL PESTKA, G
RAND
R
APIDS
,............... 2011
JAMES ROBERT REDFORD, E
AST
G
RAND
R
APIDS
, .......... 2011
PAUL J. SULLIVAN, G
RAND
R
APIDS
, .................................. 2009
DANIEL V. ZEMAITIS, G
RAND
R
APIDS
,.............................. 2009
18. LAWRENCE M. BIELAWSKI, L
INWOOD
,........................... 2009
WILLIAM J. CAPRATHE, B
AY
C
ITY
,................................. 2011
KENNETH W. SCHMIDT, B
AY
C
ITY
,................................. 2007
19. JAMES M. BATZER, M
ANISTEE
,......................................... 2009
20. CALVIN L. BOSMAN, G
RAND
H
AVEN
, ................................ 2011
WESLEY J. NYKAMP,H
OLLAND
,........................................ 2009
EDWARD R. POST, G
RAND
H
AVEN
, .................................... 2011
JON VAN ALLSBURG, H
OLLAND
,...................................... 2013
21. PAUL H. CHAMBERLAIN, B
LANCHARD
,............................ 2011
MARK H. DUTHIE, M
T.
P
LEASANT
, ................................... 2013
22. ARCHIE CAMERON BROWN, A
NN
A
RBOR
, ..................... 2011
TIMOTHY P. CONNORS, A
NN
A
RBOR
, .............................. 2007
MELINDA MORRIS, A
NN
A
RBOR
, ...................................... 2007
DONALD E. SHELTON, S
ALINE
,....................................... 2009
DAVIDS.SWARTZ,A
NN
A
RBOR
,........................................ 2009
23. RONALD M. BERGERON, S
TANDISH
, ............................... 2009
WILLIAM F. MYLES, E
AST
T
AWAS
, .................................... 2009
24. DONALD A. TEEPLE, S
ANDUSKY
, ..................................... 2009
25. THOMAS L. SOLKA, M
ARQUETTE
, ..................................... 2011
viii
T
ERM
E
XPIRES
J
ANUARY
1
OF
JOHN R. WEBER, M
ARQUETTE
,.......................................... 2009
26. JOHN F. KOWALSKI, A
LPENA
, .......................................... 2009
27. ANTHONY A. MONTON, P
ENTWATER
,.............................. 2007
TERRENCE R. THOMAS, N
EWAYGO
,................................ 2009
28. CHARLES D. CORWIN, C
ADILLAC
,..................................... 2009
29. JEFFREY L. MARTLEW, D
E
W
ITT
,.................................... 2011
RANDY L. TAHVONEN, E
LSIE
,......................................... 2009
30. LAURA BAIRD, O
KEMOS
,.................................................... 2007
WILLIAM E. COLLETTE, E
AST
L
ANSING
,......................... 2009
JOYCE DRAGANCHUK, L
ANSING
, .................................... 2011
JAMES R. GIDDINGS, W
ILLIAMSTON
, ................................ 2011
JANELLE A. LAWLESS, O
KEMOS
,..................................... 2009
PAULA J.M. MANDERFIELD, E
AST
L
ANSING
, .................. 2007
BEVERLEY NETTLES-NICKERSON, O
KEMOS
,.............. 2009
31. JAMES P.ADAIR,P
ORT
H
URON
,......................................... 2007
PETER E. DEEGAN, P
ORT
H
URON
, ................................... 2011
DANIEL J. KELLY, F
ORT
G
RATIOT
,..................................... 2009
32. ROY D. GOTHAM, B
ESSEMER
,............................................ 2009
33. RICHARD M. PAJTAS, C
HARLEVOIX
, .................................. 2009
34. MICHAEL J. BAUMGARTNER, P
RUDENVILLE
, ................. 2011
35. GERALD D. LOSTRACCO, O
WOSSO
, ................................. 2009
36. WILLIAM C. BUHL, P
AW
P
AW
, .......................................... 2007
PAUL E. HAMRE, L
AWTON
,................................................ 2009
37. ALLEN L. GARBRECHT, B
ATTLE
C
REEK
,.......................... 2011
JAMES C. KINGSLEY, A
LBION
, ......................................... 2009
STEPHEN B. MILLER, B
ATTLE
C
REEK
,............................. 2011
CONRAD J. SINDT, H
OMER
, .............................................. 2007
38. JOSEPH A. COSTELLO, J
R
., M
ONROE
,............................. 2009
MICHAEL W. L
A
BEAU, M
ONROE
,....................................... 2007
MICHAEL A. WEIPERT, M
ONROE
, .................................... 2011
39. HARVEY A. KOSELKA, A
DRIAN
, ....................................... 2009
TIMOTHY P.PICKARD,A
DRIAN
,....................................... 2007
40. MICHAEL P. HIGGINS, L
APEER
, ....................................... 2009
NICK O. HOLOWKA, I
MLAY
C
ITY
, ..................................... 2011
41. MARY BROUILLETTE BARGLIND, I
RON
M
OUNTAIN
, ..... 2011
RICHARD J. CELELLO, I
RON
M
OUNTAIN
,.......................... 2009
42. PAUL J. CLULO, M
IDLAND
,................................................. 2009
THOMAS L. LUDINGTON, S
ANFORD
,............................... 2007
43. MICHAEL E. DODGE, E
DWARDSBURG
, ............................... 2011
44. STANLEY J. LATREILLE, H
OWELL
, ................................. 2007
DAVID READER, H
OWELL
,................................................. 2011
46. ALTON T. DAVIS, G
RAYLING
,.............................................. 2011
DENNIS F. MURPHY, G
AYLORD
,........................................ 2009
ix
T
ERM
E
XPIRES
J
ANUARY
1
OF
47. STEPHEN T. DAVIS, E
SCANABA
, ........................................ 2011
48. HARRY A. BEACH, O
TSEGO
,.............................................. 2009
GEORGE R. CORSIGLIA, A
LLEGAN
, ................................. 2011
49. SCOTT P. HILL-KENNEDY, B
IG
R
APIDS
,.......................... 2007
2
LAWRENCE C. ROOT, B
IG
R
APIDS
, ................................... 2007
3
50. NICHOLAS J. LAMBROS, S
AULT
S
TE
.M
ARIE
, .................. 2007
51. RICHARD I. COOPER, L
UDINGTON
,................................... 2009
52. M. RICHARD KNOBLOCK, B
AD
A
XE
, .............................. 2009
53. SCOTT LEE PAVLICH, C
HEBOYGAN
, ................................. 2011
54. PATRICK REED JOSLYN, C
ARO
,...................................... 2007
55. KURT N. HANSEN, G
LADWIN
,............................................ 2009
4
56. THOMAS S. EVELAND, D
IMONDALE
,................................. 2007
CALVIN E. OSTERHAVEN, G
RAND
L
EDGE
,....................... 2009
57. CHARLES W. JOHNSON, P
ETOSKEY
,................................. 2007
2
From May 31, 2005.
3
Retired February 11, 2005.
4
Retired July 5, 2005.
x
DISTRICT JUDGES
T
ERM
E
XPIRES
J
ANUARY
1
OF
1. MARK S. BRAUNLICH, M
ONROE
, ..................................... 2009
TERRENCE P. BRONSON, M
ONROE
, ................................ 2007
JACK VITALE, M
ONROE
, .................................................... 2011
2A. NATALIA M. KOSELKA, A
DRIAN
, ..................................... 2011
JAMES E. SHERIDAN, A
DRIAN
, ........................................ 2009
2B. DONALD L. SANDERSON, H
ILLSDALE
, ............................ 2009
3A. DAVID T. COYLE, C
OLDWATER
,........................................... 2009
3B. JEFFREY C. MIDDLETON, T
HREE
R
IVERS
, ...................... 2009
WILLIAM D. WELTY, T
HREE
R
IVERS
,................................. 2007
4. PAUL E. DEATS, E
DWARDSBURG
,......................................... 2009
5. GARY J. BRUCE, S
T
.J
OSEPH
, ............................................ 2011
ANGELA PASULA, S
TEVENSVILLE
,...................................... 2009
SCOTT SCHOFIELD, N
ILES
,............................................. 2009
LYNDA A. TOLEN, S
TEVENSVILLE
,...................................... 2007
DENNIS M. WILEY, S
T
.J
OSEPH
, ....................................... 2011
7. ARTHUR H. CLARKE, III, S
OUTH
H
AVEN
,........................ 2009
ROBERT T. HENTCHEL, P
AW
P
AW
,................................. 2011
8-1. QUINN E. BENSON, K
ALAMAZOO
,...................................... 2009
ANNE E. BLATCHFORD, K
ALAMAZOO
,.............................. 2011
PAUL J. BRIDENSTINE, K
ALAMAZOO
,............................... 2007
CAROL A. HUSUM, K
ALAMAZOO
, ....................................... 2011
8-2. ROBERT C. KROPF, P
ORTAGE
,........................................... 2009
8-3. RICHARD A. SANTONI, K
ALAMAZOO
,................................ 2009
VINCENT C. WESTRA, K
ALAMAZOO
, ................................. 2011
10. SAMUEL I. DURHAM, J
R
., B
ATTLE
C
REEK
,....................... 2011
JOHN R. HOLMES, B
ATTLE
C
REEK
,................................... 2007
FRANKLIN K. LINE, J
R
., M
ARSHALL
,................................ 2009
MARVIN RATNER, B
ATTLE
C
REEK
,.................................... 2009
12. CHARLES J. FALAHEE, J
R
., J
ACKSON
, ............................. 2009
JOSEPH S. FILIP,J
ACKSON
, ............................................... 2011
JAMES M. JUSTIN, J
ACKSON
, ............................................ 2007
R. DARRYL MAZUR, J
ACKSON
, .......................................... 2009
14A. RICHARD E. CONLIN, A
NN
A
RBOR
,.................................. 2009
J. CEDRIC SIMPSON, Y
PSILANTI
, ...................................... 2007
KIRK W. TABBEY, S
ALINE
,................................................. 2011
14B. JOHN B. COLLINS, Y
PSILANTI
,.......................................... 2009
xi
T
ERM
E
XPIRES
J
ANUARY
1
OF
15. JULIE CREAL GOODRIDGE, A
NN
A
RBOR
, ...................... 2007
ELIZABETH POLLARD HINES, A
NN
A
RBOR
,.................. 2011
ANN E. MATTSON, A
NN
A
RBOR
, ....................................... 2009
16. ROBERT B. BRZEZINSKI, L
IVONIA
, ................................. 2009
KATHLEEN J. M
C
CANN, L
IVONIA
,.................................... 2007
17. KAREN KHALIL, R
EDFORD
, ............................................... 2011
CHARLOTTE L. WIRTH, R
EDFORD
,.................................. 2009
18. C. CHARLES BOKOS, W
ESTLAND
, ..................................... 2009
GAIL McKNIGHT, W
ESTLAND
,............................................ 2007
19. WILLIAM C. HULTGREN, D
EARBORN
, .............................. 2011
MARK W. SOMERS, D
EARBORN
, ......................................... 2009
RICHARD WYGONIK, D
EARBORN
,..................................... 2007
1
20. LEO K. FORAN, D
EARBORN
H
EIGHTS
, ................................. 2007
MARK J. PLAWECKI, D
EARBORN
H
EIGHTS
, ........................ 2009
21. RICHARD L. HAMMER, J
R
., G
ARDEN
C
ITY
,...................... 2009
22. SYLVIA A. JAMES, I
NKSTER
, .............................................. 2007
23. GENO SALOMONE, T
AYLOR
, ............................................ 2007
WILLIAM J. SUTHERLAND, T
AYLOR
,.............................. 2009
24. JOHN T. COURTRIGHT, A
LLEN
P
ARK
,.............................. 2009
RICHARD A. PAGE, A
LLEN
P
ARK
,...................................... 2011
25. DAVID A. BAJOREK, L
INCOLN
P
ARK
, ................................ 2009
DAVID J. ZELENAK, L
INCOLN
P
ARK
, ................................. 2011
26-1. RAYMOND A. CHARRON, R
IVER
R
OUGE
, ......................... 2009
26-2. MICHAEL F. CIUNGAN, E
CORSE
, ..................................... 2009
27. RANDY L. KALMBACH, W
YANDOTTE
, ............................... 2007
28. JAMES A. KANDREVAS, S
OUTHGATE
, ............................... 2009
29. LAURA REDMOND MACK, W
AYNE
, ................................ 2011
30. BRIGETTE R. OFFICER, H
IGHLAND
P
ARK
, ....................... 2011
31. PAUL J. PARUK, H
AMTRAMCK
,............................................ 2009
32A. ROGER J. L
A
ROSE, H
ARPER
W
OODS
, ................................ 2009
33. JAMES KURT KERSTEN, T
RENTON
, ................................ 2009
MICHAEL K. McNALLY, T
RENTON
,................................... 2007
EDWARD J. NYKIEL, G
ROSSE
I
LE
, .................................... 2011
34. TINA BROOKS GREEN, N
EW
B
OSTON
,............................. 2007
BRIAN A. OAKLEY, R
OMULUS
,........................................... 2011
DAVID M. PARROTT, B
ELLEVILLE
,..................................... 2009
35. MICHAEL J. GEROU, P
LYMOUTH
,...................................... 2011
RONALD W. LOWE, C
ANTON
, ............................................ 2007
JOHN E. M
AC
DONALD, N
ORTHVILLE
,................................ 2009
36. DEB ORAH ROSS ADAMS, D
ETROIT
, ................................ 2011
LYDIA NANCE ADAMS, D
ETROIT
, .................................... 2011
TRUDY D
UN
COMBE ARCHER, D
ETROIT
,......................... 2007
MARYLIN E. ATKINS, D
ETROIT
, ....................................... 2007
JOSEPH N. BALTIMORE, D
ETROIT
, ................................. 2009
NANCY M
C
CAUGHAN BLOUNT, D
ETROIT
,..................... 2009
DAVID MARTIN BRADFIELD, D
ETROIT
, ......................... 2009
1
From March 14, 2005.
xii
T
ERM
E
XPIRES
J
ANUARY
1
OF
IZETTA F. BRIGHT, D
ETROIT
,............................................ 2011
DONALD COLEMAN, D
ETROIT
,......................................... 2007
NANCY A. FARMER, D
ETROIT
,.......................................... 2007
DEBORAH GERALDINE FORD, D
ETROIT
, ...................... 2011
RUTH ANN GARRETT, D
ETROIT
, ..................................... 2007
JIMMYLEE GRAY, D
ETROIT
,.............................................. 2009
KATHERINE HANSEN, D
ETROIT
,..................................... 2011
BEVERLY J. HAYES-SIPES, D
ETROIT
,.............................. 2009
PAULA G. HUMPHRIES, D
ETROIT
,................................... 2011
PATRICIA L. JEFFERSON, D
ETROIT
, ............................... 2009
VANESA F. JONES-BRADLEY, D
ETROIT
, ......................... 2007
DEBORAH L. LANGSTON, D
ETROIT
, ............................... 2007
WILLIE G. LIPSCOMB, J
R
., D
ETROIT
, ............................... 2009
LEONIA J. LLOYD, D
ETROIT
,............................................. 2011
MIRIAM B. MARTIN-CLARK, D
ETROIT
,........................... 2011
DONNA R. MILHOUSE, D
ETROIT
, .................................... 2007
B. PENNIE MILLENDER, D
ETROIT
,................................. 2011
JEANETTE O’BANNER-OWENS, D
ETROIT
, .................... 2009
MARK A. RANDON, D
ETROIT
, ........................................... 2009
KEVIN F. ROBBINS, D
ETROIT
,........................................... 2007
DAVID S. ROBINSON, J
R
., D
ETROIT
,................................. 2007
C. LORENE ROYSTER, D
ETROIT
,...................................... 2007
RUDOLPH A. SERRA, D
ETROIT
,........................................ 2007
TED WALLACE, D
ETROIT
,.................................................. 2011
37. JOHN M. CHMURA, W
ARREN
,........................................... 2007
JENNIFER FAUNCE, W
ARREN
,......................................... 2009
DAWNN M. GRUENBURG, W
ARREN
, ............................... 2011
WALTER A. JAKUBOWSKI, J
R
., W
ARREN
, ....................... 2007
38. NORENE S. REDMOND, E
ASTPOINTE
, .............................. 2009
39. JOSEPH F. B OEDEKER, R
OSEVILLE
,................................. 2009
MARCO A. SANTIA, F
RASER
,............................................. 2007
CATHERINE B. STEENLAND, R
OSEVILLE
, ...................... 2011
40. MARK A. FRATARCANGELI, S
T
.C
LAIR
S
HORES
, ............. 2007
JOSEPH CRAIGEN OSTER, S
T
.C
LAIR
S
HORES
,............... 2009
41A. MICHAEL S. MACERONI, S
TERLING
H
EIGHTS
,.................. 2009
DOUGLAS P. SHEPHERD, M
ACOMB
T
WP
., ........................ 2007
STEPHEN S. SIERAWSKI, S
TERLING
H
EIGHTS
,................. 2011
KIMBERLEY ANNE WIEGAND, S
TERLING
H
EIGHTS
, ....... 2007
41B. LINDA DAVIS, C
LINTON
T
WP
.,............................................ 2009
JOHN C. FOSTER, C
LINTON
T
WP
.,..................................... 2011
SEBASTIAN LUCIDO, C
LINTON
T
WP.
, ............................... 2007
2
42-1. DENIS R. L
E
DUC, W
ASHINGTON
, ........................................ 2009
42-2. PAUL CASSIDY, N
EW
B
ALTIMORE
,....................................... 2007
43. KEITH P. HUNT, F
ERNDALE
,............................................... 2007
JOSEPH LONGO, M
ADISON
H
EIGHTS
,................................. 2011
ROBERT J. TURNER, F
ERNDALE
,...................................... 2009
2
From July 1, 2005.
xiii
T
ERM
E
XPIRES
J
ANUARY
1
OF
44. TERRENCE H. BRENNAN, R
OYAL
O
AK
, .......................... 2009
DANIEL SAWICKI, R
OYAL
O
AK
, ........................................ 2007
45A. WILLIAM R. SAUER, B
ERKLEY
,......................................... 2009
45B. MICHELLE FRIEDMAN APPEL, H
UNTINGTON
W
OODS
,... 2009
DAVID M. GUBOW, H
UNTINGTON
W
OODS
, .......................... 2009
46. STEPHEN C. COOPER, S
OUTHFIELD
, ................................ 2011
SHEILA R. JOHNSON, S
OUTHFIELD
, ................................. 2009
SUSAN M. MOISEEV, S
OUTHFIELD
,.................................... 2007
47. JAMES BRADY, F
ARMINGTON
H
ILLS
, ................................... 2009
MARLA E. PARKER, F
ARMINGTON
H
ILLS
,........................... 2011
48. MARC BARRON, B
IRMINGHAM,.....................................................................
2011
DIANE D’AGOSTINI, B
LOOMFIELD
H
ILLS
,.......................... 2007
KIMBERLY SMALL, W
EST
B
LOOMFIELD
, ............................ 2009
50. LEO B OWMAN, P
ONTIAC
,................................................... 2007
MICHAEL C. MARTINEZ, P
ONTIAC
, ................................. 2009
PRESTON G. THOMAS, P
ONTIAC
, .................................... 2011
CYNTHIA THOMAS WALKER, P
ONTIAC
, ........................ 2009
51. RICHARD D. KUHN, J
R
., W
ATERFORD
, .............................. 2009
PHYLLIS C. M
C
MILLEN, W
ATERFORD
,.............................. 2007
52-1. ROBERT BONDY, M
ILFORD
,............................................... 2007
BRIAN W. M
AC
KENZIE, N
OVI
, .......................................... 2009
DENNIS N. POWERS, H
IGHLAND
, ..................................... 2007
52-2. DANA FORTINBERRY, C
LARKSTON
, .................................. 2009
KELLEY RENAE KOSTIN, C
LARKSTON
,............................ 2011
52-3. LISA L. ASADOORIAN, R
OCHESTER
H
ILLS
,........................ 2007
NANCY TOLWIN CARNIAK, R
OCHESTER
H
ILLS
,............... 2011
JULIE A. NICHOLSON, R
OCHESTER
H
ILLS
, ....................... 2009
52-4. WILLIAM E. B OLLE, T
ROY
,.............................................. 2009
DENNIS C. DRURY, T
ROY
, ................................................ 2007
MICHAEL A. MARTONE, T
ROY
, ...................................... 2011
53. L. SUZANNE GEDDIS, B
RIGHTON
, .................................... 2011
MICHAEL K. HEGARTY, B
RIGHTON
,................................. 2009
3
A. JOHN PIKKARAINEN, B
RIGHTON
, ............................... 2007
54A. LOUISE ALDERSON, L
ANSING
,......................................... 2011
PATRICK F. CHERRY, L
ANSING
,......................................... 2009
FRANK J. D
E
LUCA, L
ANSING
, ............................................ 2007
CHARLES F. FILICE, L
ANSING
, ......................................... 2009
AMY R. KRAUSE, L
ANSING
, ............................................... 2011
54B. RICHARD D. BALL, E
AST
L
ANSING
, ................................... 2011
DAVID L. JORDON, E
AST
L
ANSING
, ................................... 2007
55. ROSEMARIE ELIZABETH AQUILINA, E
AST
L
ANSING
, .. 2011
PAMELA J. M
C
CABE, M
ASON
, ........................................... 2009
4
3
Died May 1, 2005.
4
Retired May 31, 2005.
xiv
T
ERM
E
XPIRES
J
ANUARY
1
OF
56A. PAUL F. BERGER, C
HARLOTTE
, .......................................... 2009
HARVEY J. HOFFMAN, G
RAND
L
EDGE
,............................. 2011
56B. GARY R. HOLMAN, H
ASTINGS
, .......................................... 2007
57. STEPHEN E. SHERIDAN, S
AUGATUCK
,............................. 2007
GARY A. STEWART, P
LAINWELL
,........................................ 2009
58. SUSAN A. JONAS, S
PRING
L
AKE
, ....................................... 2009
RICHARD J. KLOOTE, G
RAND
H
AVEN
,.............................. 2007
BRADLEY S. KNOLL, H
OLLAND
, ....................................... 2009
KENNETH D. POST, Z
EELAND
,.......................................... 2011
59. PETER P. VERSLUIS, G
RAND
R
APIDS
,................................ 2011
60. HAROLD F. CLOSZ, III, N
ORTH
M
USKEGON
, ...................... 2009
FREDRIC A. GRIMM, J
R
., N
ORTH
M
USKEGON
,................... 2009
MICHAEL JEFFREY NOLAN, T
WIN
L
AKE
,...................... 2007
ANDREW WIERENGO, M
USKEGON
, .................................. 2011
61. PATRICK C. BOWLER, G
RAND
R
APIDS
, ............................. 2009
DAVID J. BUTER, G
RAND
R
APIDS
,...................................... 2009
J. MICHAEL CHRISTENSEN, G
RAND
R
APIDS
,.................. 2011
JEANINE NEMESI L
A
VILLE, G
RAND
R
APIDS
,.................. 2007
BEN H. LOGAN, II, G
RAND
R
APIDS
, ................................... 2007
DONALD H. PASSENGER, G
RAND
R
APIDS
,....................... 2011
62A. M. SCOTT B OWEN, W
YOMING
,.......................................... 2009
STEVEN M. TIMMERS, G
RANDVILLE
,................................ 2007
62B. WILLIAM G. KELLY, K
ENTWOOD
,....................................... 2009
63-1. STEVEN R. SERVAAS, R
OCKFORD
, .................................... 2009
63-2. SARA J. SMOLENSKI, E
AST
G
RAND
R
APIDS
,...................... 2009
64A. RAYMOND P.VOET,I
ONIA
, ............................................... 2009
64B. DONALD R. HEMINGSEN, S
HERIDAN
, ............................. 2009
65A. RICHARD D. WELLS, D
E
W
ITT
,......................................... 2009
65B. JAMES B. MACKIE, A
LMA
,................................................ 2009
66. WARD L. CLARKSON, C
ORUNNA
, ...................................... 2007
TERRANCE P. DIGNAN, O
WOSSO
, .................................... 2009
67-1. DAVID J. GOGGINS, F
LUSHING
,......................................... 2009
67-2. JOHN L. CONOVER, D
AVISON
,.......................................... 2009
RICHARD L. HUGHES, O
TISVILLE
, ................................... 2011
67-3. LARRY STECCO, F
LUSHING
,............................................... 2009
67-4. MARK C. M
C
CABE, F
ENTON
,.............................................. 2009
CHRISTOPHER ODETTE, G
RAND
B
LANC
,........................ 2007
68. WILLIAM H. CRAWFORD, II, F
LINT
,............................... 2007
HERMAN MARABLE, J
R
., F
LINT
, ..................................... 2007
MICHAEL D. M
C
ARA, F
LINT
, ............................................ 2009
NATHANIEL C. PERRY, III, F
LINT
, ................................. 2009
RAMONA M. ROBERTS, F
LINT
,........................................ 2011
70-1. TERRY L. CLARK, S
AGINAW
,.............................................. 2007
M. RANDALL JURRENS, S
AGINAW
, .................................. 2011
M. T. THOMPSON, J
R
., S
AGINAW
, ...................................... 2009
70-2. CHRISTOPHER S. BOYD, S
AGINAW
,................................. 2011
DARNELL JACKSON, S
AGINAW
,........................................ 2009
KYLE HIGGS TARRANT, S
AGINAW
, .................................. 2007
xv
T
ERM
E
XPIRES
J
ANUARY
1
OF
71A. LAURA CHEGER BARNARD, M
ETAMORA
, ....................... 2009
JOHN T. CONNOLLY, L
APEER
,.......................................... 2007
71B. KIM DAVID GLASPIE, C
ASS
C
ITY
,.................................... 2009
72. RICHARD A. COOLEY, J
R
., P
ORT
H
URON
,......................... 2011
DAVID C. NICHOLSON, P
ORT
H
URON
, ............................. 2007
CYNTHIA SIEMEN PLATZER, L
AKEPORT
, ...................... 2009
73A. JAMES A. MARCUS, A
PPLEGATE
,....................................... 2009
73B. KARL E. KRAUS, B
AD
A
XE
,............................................... 2009
74. CRAIG D. ALSTON, B
AY
C
ITY
, .......................................... 2009
TIMOTHY J. KELLY, B
AY
C
ITY
,......................................... 2007
SCOTT J. NEWCOMBE, B
AY
C
ITY
, ................................... 2011
75. ROBERT L. DONOGHUE, M
IDLAND
,................................ 2007
5
JOHN HENRY HART, M
IDLAND
,........................................ 2009
76. WILLIAM R. RUSH, M
T
.P
LEASANT
, .................................. 2009
77. SUSAN H. GRANT, B
IG
R
APIDS
,......................................... 2009
78. H. KEVIN DRAKE, F
REMONT
,............................................ 2009
79. PETER J. WADEL, B
RANCH
,............................................... 2009
80. GARY J. ALLEN, G
LADWIN
, ................................................ 2009
81. ALLEN C. YENIOR, S
TERLING
, .......................................... 2009
82. RICHARD E. NOBLE, W
EST
B
RANCH
,................................ 2009
83. DANIEL L. SUTTON, P
RUDENVILLE
, .................................. 2009
84. DAVID A. HOGG, H
ARRIETTA
, ............................................ 2009
85. BRENT V. DANIELSON, M
ANISTEE
, .................................. 2009
86. JOHN D. FORESMAN, T
RAVERSE
C
ITY
, ............................. 2011
MICHAEL J. HALEY, T
RAVERSE
C
ITY
,................................ 2009
THOMAS J. PHILLIPS, T
RAVERSE
C
ITY
,............................ 2007
87. PATRICIA A. MORSE, G
AYLORD
, ....................................... 2009
88. THEODORE O. JOHNSON, A
LPENA
,................................ 2009
89. HAROLD A. JOHNSON, J
R
., C
HEBOYGAN
, ......................... 2009
90. RICHARD W. MAY, C
HARLEVOIX
,......................................... 2009
91. MICHAEL W. M
AC
DONALD, S
AULT
S
TE
.M
ARIE
,............... 2009
92. BETH GIB SON, N
EWBERRY
,................................................ 2009
93. MARK E. LUOMA, M
UNISING
,............................................ 2009
94. GLENN A. PEARSON, G
LADSTONE
, ................................... 2009
95A. JEFFREY G. BARSTOW, M
ENOMINEE
,............................... 2009
95B. MICHAEL J. KUSZ, I
RON
M
OUNTAIN
, ................................. 2009
96. DENNIS H. GIRARD, M
ARQUETTE
, .................................... 2011
ROGER W. KANGAS, I
SHPEMING
,....................................... 2009
97. PHILLIP L. KUKKONEN, H
ANCOCK
,................................ 2009
98. ANDERS B. TINGSTAD, J
R
., B
ESSEMER
,........................... 2009
5
From June 23, 2005.
xvi
MUNICIPAL JUDGES
T
ERM
E
XPIRES
J
ANUARY
1
OF
RUSSELL F. ETHRIDGE, G
ROSSE
P
OINTE
,............................. 2008
CARL F. JARBOE, G
ROSSE
P
OINTE
P
ARK
, ................................ 2006
LYNNE A. PIERCE, G
ROSSE
P
OINTE
W
OODS
,........................... 2008
MATTHEW R. RUMORA, G
ROSSE
P
OINTE
F
ARMS
,.................. 2006
xvii
PROBATE JUDGES
T
ERM
E
XPIRES
C
OUNTY
J
ANUARY
1
OF
Alcona .......................JAMES H. COOK...................................... 2007
Alger/Schoolcraft......WILLIAM W. CARMODY ......................... 2007
Allegan ......................MICHAEL L. BUCK................................. 2007
Alpena .......................DOUGLAS A. PUGH................................ 2007
Antrim.......................NORMAN R. HAYES................................ 2007
Arenac.......................JACK WILLIAM SCULLY........................ 2007
Baraga.......................TIMOTHY S. BRENNAN ........................ 2007
Barry .........................WILLIAM M. DOHERTY......................... 2007
Bay ............................KAREN TIGHE ........................................ 2007
Benzie........................NANCY A. KIDA....................................... 2007
Berrien ......................MABEL JOHNSON MAYFIELD............. 2009
Berrien ......................THOMAS E. NELSON............................. 2007
Branch.......................FREDERICK L. WOOD ........................... 2007
Calhoun.....................PHILLIP E. HARTER .............................. 2011
Calhoun.....................GARY K. REED......................................... 2007
Cass ...........................SUSAN L. DOBRICH ............................... 2007
Cheboygan ................ROBERT JOHN BUTTS.......................... 2007
Chippewa ..................LOWELL R. ULRICH .............................. 2007
Clare/Gladwin...........THOMAS P. McLAUGHLIN .................... 2007
Clinton ......................LISA SULLIVAN....................................... 2007
Crawford ...................JOHN G. HUNTER.................................. 2007
Delta..........................ROBERT E. GOEBEL, J
R
. ....................... 2007
Dickinson..................THOMAS D. SLAGLE.............................. 2007
Eaton.........................MICHAEL F. SKINNER........................... 2007
Emmet/Charlevoix ...FREDERICK R. MULHAUSER .............. 2007
Genesee.....................ALLEN J. NELSON.................................. 2009
Genesee.....................ROBERT E. WEISS.................................. 2007
Gogebic......................JOEL L. MASSIE...................................... 2007
Grand Traverse........DAVID L. STOWE .................................... 2007
Gratiot.......................JACK T. ARNOLD .................................... 2007
Hillsdale....................MICHAEL E. NYE.................................... 2007
Houghton..................CHARLES R. GOODMAN ....................... 2007
xviii
Huron........................DAVID L. CLABUESCH .......................... 2007
Ingham......................R. GEORGE ECONOMY.......................... 2007
Ingham......................RICHARD JOSEPH GARCIA.................. 2009
Ionia ..........................ROBERT SYKES, J
R
................................. 2007
Iosco ..........................JOHN D. HAMILTON.............................. 2007
Iron............................C. JOSEPH SCHWEDLER ...................... 2007
Isabella......................WILLIAM T. ERVIN................................. 2007
Jackson .....................SUSAN E. VANDERCOOK...................... 2007
Kalamazoo ................CURTIS J. BELL, J
R
................................. 2007
1
Kalamazoo ................PATRICIA N. CONLON ........................... 2009
Kalamazoo ................DONALD R. HALSTEAD ........................ 2011
Kalkaska ...................LYNNE MARIE BUDAY .......................... 2007
Kent...........................NANARUTH H. CARPENTER ............... 2011
Kent...........................PATRICIA D. GARDNER......................... 2007
Kent...........................JANET A. HAYNES ................................. 2009
Kent...........................G. PATRICK HILLARY ............................ 2007
Keweenaw.................JAMES G. JAASKELAINEN ................... 2007
Lake...........................MARK S. WICKENS................................. 2007
Lapeer .......................JUSTUS C. SCOTT .................................. 2007
Leelanau ...................JOSEPH E. DEEGAN .............................. 2007
Lenawee ....................CHARLES W. JAMESON......................... 2007
Livingston.................SUSAN L. RECK ...................................... 2007
Luce/Mackinac..........THOMAS B. NORTH ............................... 2007
Macomb.....................KATHRYN A. GEORGE........................... 2009
Macomb.....................PAMELA GILBERT O’SULLIVAN ......... 2007
Manistee....................JOHN R. DeVRIES................................... 2007
Marquette .................MICHAEL J. ANDEREGG....................... 2007
Mason........................MARK D. RAVEN ..................................... 2007
Mecosta/Osceola .......LaVAIL E. HULL...................................... 2007
Menominee ...............WILLIAM A. HUPY.................................. 2007
Midland.....................DORENE S. ALLEN................................. 2007
Missaukee .................CHARLES R. PARSONS .......................... 2007
Monroe......................JOHN A. HOHMAN, J
R
. .......................... 2007
Monroe......................PAMELA A. MOSKWA............................. 2009
Montcalm..................EDWARD L. SKINNER............................ 2007
Montmorency............MICHAEL G. MACK ................................ 2007
Muskegon..................NEIL G. MULLALLY ............................... 2011
Muskegon..................GREGORY C. PITTMAN ......................... 2007
Newaygo....................GRAYDON W. DIMKOFF ........................ 2007
Oakland.....................BARRY M. GRANT................................... 2009
Oakland.....................LINDA S. HALLMARK ............................ 2007
1
From February 28, 2005.
xix
Oakland.....................EUGENE ARTHUR MOORE .................. 2011
Oakland.....................ELIZABETH M. PEZZETTI .................... 2011
Oceana ......................WALTER A. URICK.................................. 2007
Ogemaw ....................EUGENE I. TURKELSON ...................... 2007
Ontonagon ................JOSEPH D. ZELEZNIK ........................... 2007
Oscoda.......................KATHRYN JOAN ROOT ......................... 2007
Otsego .......................MICHAEL K. COOPER ........................... 2007
Ottawa ......................MARK A. FEYEN ..................................... 2007
Presque Isle..............KENNETH A. RADZIBON...................... 2007
Roscommon ..............DOUGLAS C. DOSSON ........................... 2007
Saginaw.....................FAYE M. HARRISON............................... 2009
Saginaw.....................PATRICK J. M
C
GRAW.............................. 2007
St. Clair.....................ELWOOD L. BROWN............................... 2009
St. Clair.....................JOHN R. MONAGHAN............................ 2007
St. Joseph .................THOMAS E. SHUMAKER....................... 2007
Sanilac.......................R. TERRY MALTBY ................................. 2007
Shiawassee................JAMES R. CLATTERBAUGH ................. 2007
Tuscola......................W. WALLACE KENT, J
R
........................... 2007
Van Buren.................FRANK D. WILLIS................................... 2007
Washtenaw................NANCY CORNELIA FRANCIS............... 2009
Washtenaw................JOHN N. KIRKENDALL ......................... 2007
Wayne........................JUNE E. BLACKWELL-HATCHER ....... 2007
Wayne........................FREDDIE G. BURTON, J
R
. ..................... 2007
Wayne........................JUDY A. HARTSFIELD........................... 2007
Wayne........................JAMES E. LACEY..................................... 2007
Wayne........................MILTON L. MACK, J
R
. ............................ 2011
Wayne........................CATHIE B. MAHER................................. 2011
Wayne........................MARTIN T. MAHER................................. 2009
Wayne........................DAVID J. SZYMANSKI ............................ 2009
Wexford .....................KENNETH L. TACOMA.......................... 2007
xx
JUDICIAL CIRCUITS
County Seat Circuit
Alcona....................Harrisville ......... 26
Alger......................Munising ........... 11
Allegan ..................Allegan............... 48
Alpena ...................Alpena................ 26
Antrim...................Bellaire .............. 13
Arenac ...................Standish ............ 34
Baraga ...................L’Anse................ 12
Barry .....................Hastings ............ 5
Bay.........................Bay City............. 18
Benzie....................Beulah ............... 19
Berrien ..................St. Joseph.......... 2
Branch...................Coldwater .......... 15
Calhoun.................Marshall, Battle
Creek................ 37
Cass .......................Cassopolis.......... 43
Charlevoix.............Charlevoix ......... 33
Cheboygan ............Cheboygan......... 53
Chippewa ..............Sault Ste. Marie. 50
Clare......................Harrison ............ 55
Clinton ..................St. Johns............ 29
Crawford ...............Grayling............. 46
Delta......................Escanaba ........... 47
Dickinson ..............Iron Mountain .. 41
Eaton.....................Charlotte ........... 5
Emmet ...................Petoskey ............ 33
Genesee .................Flint................... 7
Gladwin.................Gladwin ............. 55
Gogebic..................Bessemer ........... 32
Grand Traverse ....Traverse City .... 13
Gratiot...................Ithaca................. 29
Hillsdale ................Hillsdale ............ 1
Houghton ..............Houghton .......... 12
Huron....................Bad Axe ............. 52
Ingham..................Mason, Lansing. 30
Ionia ......................Ionia................... 8
Iosco ......................Tawas City ........ 23
Iron........................Crystal Falls...... 41
Isabella..................Mount Pleasant. 21
Jackson..................Jackson.............. 4
Kalamazoo ............Kalamazoo......... 9
Kalkaska ...............Kalkaska............ 46
Kent.......................Grand Rapids.... 17
Keweenaw.............Eagle River........ 12
County Seat Circuit
Lake ................Baldwin ................. 51
Lapeer.............Lapeer ................... 40
Leelanau .........Leland ................... 13
Lenawee..........Adrian ................... 39
Livingston.......Howell ................... 44
Luce.................Newberry .............. 11
Mackinac.........St. Ignace .............. 50
Macomb...........Mount Clemens .... 16
Manistee .........Manistee................ 19
Marquette.......Marquette ............. 25
Mason..............Ludington ............. 51
Mecosta...........Big Rapids............. 49
Menominee .....Menominee ........... 41
Midland...........Midland ................. 42
Missaukee .......Lake City .............. 28
Monroe............Monroe .................. 38
Montcalm........Stanton.................. 8
Montmorency .Atlanta .................. 26
Muskegon .......Muskegon.............. 14
Newaygo .........White Cloud.......... 27
Oakland ..........Pontiac .................. 6
Oceana ............Hart....................... 27
Ogemaw ..........West Branch.......... 34
Ontonagon......Ontonagon ............ 32
Osceola............Reed City .............. 49
Oscoda.............Mio......................... 23
Otsego .............Gaylord.................. 46
Ottawa ............Grand Haven ........ 20
Presque Isle....Rogers City ........... 26
Roscommon ....Roscommon........... 34
Saginaw...........Saginaw................. 10
St. Clair ..........Port Huron ........... 31
St. Joseph .......Centreville............. 45
Sanilac.............Sandusky ............... 24
Schoolcraft......Manistique............ 11
Shiawassee......Corunna ................ 35
Tuscola............Caro....................... 54
Van Buren.......Paw Paw................ 36
Washtenaw......Ann Arbor............. 22
Wayne..............Detroit................... 3
Wexford...........Cadillac.................. 28
xxi
TABLE OF CASES REPORTED
29 C
ASES
;85O
PINIONS
; 944 A
CTIONS ON
A
PPLICATIONS
FOR
L
EAVE TO
A
PPEAL
G
RANTED OR
D
ENIED
(Lines set in small type refer to actions on application for leave
to appeal from the Court of Appeals starting at page 851, and to
special orders in other matters starting at page 1201.)
P
AGE
A
ACIA, Garon v ....................................................................... 858
AFSCME Council, Locals 1600 & 1799 v City of Flint ...... 866
Acme Twp, Concerned Citizens of Acme Twp v ................. 913
Adair Holdings, LLC v Kline ................................................ 896
Adelson, People v ................................................................... 862
Advocacy Organization for Patients &
Providers v Auto Club Ins Ass’n .................... 91
Aguirre, Family Independence Agency v (In re
Rogers) ........................................................................ 868, 884
Akerlind, Smith v .................................................................. 870
Al-Timimi, People v ............................................................... 882
Alexander, People v ............................................................... 878
Alkiefy v DaimlerChrysler Corp ........................................... 939
Allen, People v ....................................................................... 862
Allied Systems, Ltd, Blye v ................................................... 853
Allstate Ins Co, Hayley v ...................................................... 923
Alpena Co Rd Comm, Wilson v ............................................ 899
Alshubi v DaimlerChrysler Corp .......................................... 917
Altamimi, People v ................................................................ 939
Altegra Credit Co v Daaja-Ra ............................................... 865
xxiii
P
AGE
Ambrose, People v ................................................................. 896
American Bumper & Mfg Co v Nat’l Union Fire Ins Co of
Pittsburgh, PA .................................................................. 880
American Country Ins Co, Amerisure Mut Ins Co v .......... 941
American Nat’l R ed Cross, McDonnell v ............................. 871
Amerisure Mut Ins Co v American Country Ins Co ........... 941
Ameritech, Inc, Bailey v ........................................................ 912
Ameritech Michigan v Public Service Comm ...................... 890
Anderson, People v (Christopher) ........................................ 912
Anderson, People v (Mark) ................................................... 921
Anderson, People v (Michael) ............................................... 912
Anderson, People v (Quiller) ................................................ 918
Anderson, People v (Willie) ................................................... 937
Andrews, People v ................................................................. 861
Ann Arbor Charter Twp, Braun v ....................................... 942
Ann Arbor (City of), Colonial Square Cooperative v .......... 917
Arkin, Finnila v ............................................................... 851, 922
Armstrong, People v .............................................................. 879
Arquette, People v ................................................................. 870
Artibee, People v .................................................................... 919
Associated Builders & Contractors v Dep’t of
Consumer & Industry Services Director ....... 117
Atkins, People v ..................................................................... 894
Attorney General v Public Service Comm ........................... 882
Auch Co (George W), Essell v .............................................. 909
Auito v Clarkston Creek Golf Club, Inc .............................. 897
Aussicker, People v ................................................................ 867
Austin, People v ..................................................................... 868
Auto Club Ins Ass’n, Advocacy Organization
for Patients & Providers v .............................. 91
Auto Club Ins Ass’n, Cameron v .......................................... 899
Auto Club Ins Ass’n, Cooper v ............................................. 858
Auto-Owners Ins Co v Jefferson .......................................... 916
Auto-Owners Ins Co, Parcell v ............................................. 852
Auto Warehousing Co, Grand Trunk Western Railroad,
Inc v ................................................................................... 872
Ayar v Foodland Distributors ............................. 713
Ayar v Foodland Distributors ............................................... 892
xxiv 472 M
ICHIGAN
R
EPORTS
P
AGE
Azmeh, Walno v ..................................................................... 938
Azzar, Ellis v (In re Azzar Living Trust) ............................. 863
Azzar Living Trust, In re (Ellis v Azzar) ............................ 863
Azzawi, Windsor Charter Twp v .......................................... 863
B
B & B Group, LLP v Dep’t of Environmental Quality ...... 940
Bacarella v Cholak-Jones ...................................................... 895
Bailey v Ameritech, Inc ......................................................... 912
Bailey v Oakwood Hosp & Medical Center ....... 685
Baker, People v ...................................................................... 941
Balliet, Clough v .................................................................... 873
Ballinger, People v ................................................................. 940
Bambi Lake Ass’n, Shiawassee Co v (In re Lake Level for
Bambi Lake) ...................................................................... 939
Bandy, People v ...................................................................... 893
Banks, Family Independence Agency v (In re
Banks) ...................................................................859, 873, 897
Banks, In re (Family Independence Agency v
Banks) ...................................................................859, 873, 897
Bankston Construction, Inc v City of Detroit ..................... 877
Baraga-Houghton-Keweenaw Child Develop-
ment Bd, Office Planning Group, Inc v ......... 479
Barawskas, People v .............................................................. 852
Barcewski v Yellow Freight System, Inc ............................. 896
Barhite, People v ................................................................... 881
Barnes, People v .................................................................... 866
Barnes v Vettraino .......................................................... 883, 942
Barrett v Discount Tire & Battery ...................................... 902
Barrett v Mt Brighton, Inc ................................................... 891
Bartholomew, People v .......................................................... 868
Bass, Mick v ........................................................................... 883
Bates, People v ................................................................ 851, 897
Beag, People v ........................................................................ 917
Beaumont Hosp (William), Dively v .................................... 906
Beaumont Hosp (William) v Garden City Osteopathic
Hosp ................................................................................... 893
Beaumont Hosp (William), LaPorte v .................................. 892
T
ABLE OF
C
ASES
R
EPORTED
xxv
P
AGE
Becker v Richards .................................................................. 871
Behrns v Behrns (In re Behrns Trust) ................................ 939
Behrns Trust, In re (Behrns v Behrns) ............................... 939
Bell, People v ......................................................................... 939
Bellville v Consumers Energy Co ......................................... 925
Belser, People v ...................................................................... 896
Belvin, People v ..................................................................... 877
Ben Drew Co, LLC v Ontwa Twp ........................................ 886
Benavidez, People v ............................................................... 879
Bentfield v Brandon’s Landing Boat Bar ............................ 929
Berliner, Deutsch v ................................................................ 894
Berman v Deborah N Ribitwer & Associates, PC .............. 914
Bermudez v Lee ..................................................................... 923
Berry, People v ....................................................................... 913
Bertling v Dep’t of Consumer & Industry Services ........... 915
Bertling v Dep’t of Labor & Economic Growth Director ... 922
Bettis v Kinsley ..................................................................... 915
Bey, People v .......................................................................... 895
Big Creek Mentor Utility Authority, Duverney v ............... 882
Bill, People v .......................................................................... 913
Bioresource, Inc v City of Detroit ........................................ 868
Biscayne Corner Deli & Bakery East, LLC v MC Office
Investments, LLC ............................................................. 892
Blake, People v ...................................................................... 939
Bland, People v ...................................................................... 896
Blue, People v ........................................................................ 879
Blue Cross Blue Shield of Michigan, English v .................. 937
Blye v Allied Systems, Ltd .................................................... 853
Bolduc, People v ..................................................................... 868
Bonner, People v .................................................................... 879
Bornschein v Straits Correctional Facility Warden ............ 913
Borucki, People v ................................................................... 916
Bos, Chase Manhattan Bank v ............................................. 939
Bostick, People v .................................................................... 891
Botsford General Hosp, Tate v ...................................... 851, 904
Bowen, People v ..................................................................... 916
Bowers v City of Flint ........................................................... 863
Boyd v Cheboygan Co Rd Comm ......................................... 915
Boyd, People v ........................................................................ 895
xxvi 472 M
ICHIGAN
R
EPORTS
P
AGE
Boyles, People v ..................................................................... 943
Bragan v Symanzik ............................................................... 926
Brandon Associates v Castle Management .......................... 941
Brandon’s Landing Boat Bar, Bentfield v ........................... 929
Brannon (Rosa), Dep’t of Treasury v .................................. 915
Brannon (Siberia), Dep’t of Treasury v ............................... 915
Brannon (Troy), Dep’t of Treasury v .................................. 915
Braun v Ann Arbor Charter Twp ........................................ 942
Braxton, People v .................................................................. 927
Breault, In re (Family Independence Agency v
Hutchinson) ...................................................................... 873
Brecon Commons, LLC, Brown v ......................................... 869
Breeding, People v ................................................................. 877
Bridinger, People v ................................................................ 868
Brockman, Hojeije v .............................................................. 894
Bronson v Meijer Companies, Ltd ....................................... 896
Brooks, People v (Jeremiah) ................................................. 896
Brooks, People v (Thomas) ................................................... 865
Brown v Brecon Commons, LLC .......................................... 869
Brown v Cassens Transport Co ............................................ 938
Brown (Jim), Family Independence Agency v (In re
Brown) ............................................................................... 871
Brown (Tammy), Family Independence Agency v (In re
Thacker) ............................................................................ 871
Brown, In re (Family Independence Agency v Jim
Brown) ............................................................................... 871
Brown, People v (Calvin) ...................................................... 940
Brown, People v (Charles) .................................................... 852
Brown, People v (Derrick) .................................................... 943
Brown, People v (Mario) ....................................................... 911
Brown, People v (Phillip) ...................................................... 937
Brown, People v (Sullivan) ................................................... 882
Brown No 1, People v (Craig) ............................................... 875
Brown No 2, People v (Craig) ............................................... 922
Bryan, Crigler v ..................................................................... 863
Bryant, People v .................................................................... 907
Buford, People v .................................................................... 915
Buitenhuis v MacDonald’s Industrial Products, Inc .......... 916
Bulls, People v ....................................................................... 867
T
ABLE OF
C
ASES
R
EPORTED
xxvii
P
AGE
Bureau of Health Systems, Rosewood Living Center v ..... 916
Burns, People v (David) ........................................................ 917
Burns, People v (Jay) ............................................................ 896
Burris, People v ..................................................................... 890
Burse, People v ...................................................................... 938
Burt, People v ........................................................................ 911
Buss, People v ........................................................................ 940
Bussey, People v ..................................................................... 896
Bustos, Mabins v ................................................................... 865
Buswa, People v ..................................................................... 868
Butler, People v ...................................................................... 867
Byars, People v ...................................................................... 868
Bye, People v .......................................................................... 941
Bynum v Grosse Ile Twp ...................................................... 861
Byrd, People v ........................................................................ 907
C
Cadieux, People v .................................................................. 917
Cadillac (City of), Wexford Medical Group v ....................... 899
Cadle, People of the City of Southgate v ............................. 896
Cagle, People v ....................................................................... 884
Cain v Waste Management, Inc (After
Remand) ........................................................... 236
Calhoun Co Clerk, Haley v ................................................... 893
Calicut, People v .................................................................... 910
Camburn, People v ................................................................ 862
Cameron v Auto Club Ins Ass’n ........................................... 899
Campbell, People v (Anthony) .............................................. 942
Campbell, People v (David A) ............................................... 867
Campbell, People v (David M) .............................................. 870
Carmody-Lahti Real Estate, Inc, Dep’t of
Natural Resources v ........................................ 359
Carpenter, People v ............................................................... 878
Carpenter v Simonian ........................................................... 893
Carter, People v (Gregory) .................................................... 912
Carter, People v (Joel) ........................................................... 895
Carter Lumber Co, Echelon Homes v ................ 192
Casco Twp v Secretary of State .......................... 566
xxviii 472 M
ICHIGAN
R
EPORTS
P
AGE
Casey, People v (Antonio) ...................................................... 894
Casey, People v (Roderick) .................................................... 940
Cassens Transport Co, Brown v ........................................... 938
Castle Management, Brandon Associates v ......................... 941
Caswell, People v ................................................................... 921
Cato, People v ........................................................................ 852
Cavataio, Reid v ..................................................................... 871
Caza v Pointe Dodge ............................................................. 896
Censke v Dep’t of Community Health ................................. 917
Certified Questions From the United States Court of
Appeals for the Sixth Circuit, In re (Melson v Prime
Ins Syndicate, Inc) ............................................................ 1225
Chahine, People v .................................................................. 886
Chambers, People v ............................................................... 879
Chase Manhattan Bank v Bos .............................................. 939
Cheboygan Co Rd Comm, Boyd v ........................................ 915
Cheboygan Co Rd Comm, Mustazza v ................................. 915
Children’s Hosp of Michigan, Long v .................................. 941
Children’s Hosp of Michigan, Rocca v ................................. 880
Childs, Dean v ........................................................................ 853
Chippewa Valley Schools, Hesse v ........................................ 878
Chojnacki, Mogassabi v ......................................................... 858
Cholak-Jones, Bacarella v ..................................................... 895
Chontos, People v .................................................................. 895
Christie, Jackson Co Treasurer v (In re Petition for
Foreclosure of Certain Parcels) ....................................... 903
Christman Co, Inc, Searfoss v .............................................. 940
Chrysler Corp Plymouth, Hoste v ........................................ 943
Chrzan, People v .................................................................... 908
Church’s Builder Wholesale v Homeowner Construction
Lien Recovery Fund (Church’s Builder Wholesale v
Loesser) ................................................................................. 894
Church’s Builder Wholesale v Loesser (Church’s Builder
Wholesale v Homeowner Construction Lien Recovery
Fund) ................................................................................. 894
Citizens Ins Co of America,J&JFarmer
Leasing, Inc v ................................................... 353
Citizens Ins Co of America, Schmitz v ................................ 853
City of Ann Arbor, Colonial Square Cooperative v ............. 917
T
ABLE OF
C
ASES
R
EPORTED
xxix
P
AGE
City of Cadillac, Wexford Medical Group v ......................... 899
City of Dearborn, Stanford v ................................................ 879
City of Detroit, Bankston Construction, Inc v .................... 877
City of Detroit, Bioresource, Inc v ....................................... 868
City of Detroit, Curtis v ........................................................ 872
City of Detroit, UAW-Ford Nat’l Ed Development &
Training Center v ............................................................. 854
City of East Tawas, Norman Corp v .................................... 894
City of Flint, AFSCME Council, Locals 1600 & 1799 v ..... 866
City of Flint, Bowers v .......................................................... 863
City of Flint, Flint Police Officers Ass’n v .......................... 866
City of Flint, Flint Professional Firefighters Union Local
352 v .................................................................................. 866
City of Grand Rapids, The Local Area Watch v ................. 852
City of Highland Park, Highland Park Policemen &
Firemen Retirement System v ........................................ 866
City of Lincoln Park, Ferguson v ......................................... 914
City of Muskegon, Rudd v .................................................... 914
City of New Baltimore Police Dep’t, Zammit v .................. 895
City of R oyal Oak, Stone v ................................................... 940
City of St Clair Shores, Stanley Building Co v ................... 893
City of Taylor, Community Bowling Centers v ................... 912
City of Warren, Gesing v ...................................................... 861
Clardy, People v ..................................................................... 911
Clark v Handziak .................................................................. 939
Clark, People v ....................................................................... 940
Clarkston, People v ................................................................ 893
Clarkston Creek Golf Club, Inc, Auito v ............................. 897
Clay Twp v Montville ............................................................ 885
Claybone v Detroit Diesel Corp ............................................ 894
Cleary Trust (The Mable) v The Edward-Marlah Muzyl
Trust .................................................................................. 866
Clough v Balliet ..................................................................... 873
Cloy, People v ......................................................................... 861
Cohen, People v ..................................................................... 863
Cole, People v ......................................................................... 911
Coleman, People v ................................................................. 866
Coleman, Smith v .................................................................. 866
Colen, People v ...................................................................... 866
xxx 472 M
ICHIGAN
R
EPORTS
P
AGE
Coley, People v ....................................................................... 939
Collier, People v ..................................................................... 895
Collins, People v .................................................................... 940
Colonial Square Cooperative v City of Ann Arbor ............. 917
Comm’r of the Office of Financial & Ins Services,
Michigan Chiropractic Council v ..................................... 899
Community Bowling Centers v City of Taylor .................... 912
Community Emergency Medical Service, Smith v ............. 863
Community Health (Dep’t of), Censke v ............................. 917
Comstock Twp, Gillette v ..................................................... 870
Concerned Citizens of Acme Twp v Acme Twp .................. 913
Conic, People v ....................................................................... 870
Conner, People v .................................................................... 918
Conrad, In re ............................................................... 1242, 1255
Consolidated Rail Corp, Ward v ........................ 77
Consumer & Industry Services (Dep’t of), Bertling v ........ 915
Consumer & Industry Services (Dep’t of), Mitchell Corp
of Owosso v ....................................................................... 923
Consumer & Industry Services (Dep’t of), Vick v .............. 907
Consumer & Industry Services Director (Dep’t
of), Associated Builders & Contractors v ....... 117
Consumers Energy Co, Bellville v ........................................ 925
Consumers Energy Co v Public Service Comm No 1 ......... 897
Consumers Energy Co v Public Service Comm No 2 ......... 937
Continental Ins Co, Tramel v ............................................... 942
Conway, People v ................................................................... 870
Conyers, People v .................................................................. 944
Cooper v Auto Club Ins Ass’n .............................................. 858
Cooper, People v ..................................................................... 890
Corrections (Dep’t of), Morgan v ......................................... 877
Corrections (Dep’t of), Murray v .......................................... 862
Corrections (Dep’t of), Soto v ............................................... 866
Corrections (Dep’t of), Werth v ............................................ 879
Corrections (Dep’t of), Wright v ........................................... 938
Couch, People v ...................................................................... 896
Cowans, People v ................................................................... 866
Cox, Family Independence Agency v (In re Cox) ................ 871
Cox, In re (Family Independence Agency v Cox) ................ 871
T
ABLE OF
C
ASES
R
EPORTED
xxxi
P
AGE
Crabtree, Tarlea v (In re Tarlea Estate) ............................. 891
Crain, People v ....................................................................... 913
Crider, People v ...................................................................... 877
Crigler v Bryan ...................................................................... 863
Crippen, People v ................................................................... 882
Cristini, People v ................................................................... 920
Crockett, People v .................................................................. 897
Culy v Culy ............................................................................ 915
Cummings, People v .............................................................. 877
Curry, People v (Kenneth) .................................................... 880
Curry, People v (Tavar) ......................................................... 878
Curtis v City of Detroit ......................................................... 872
Cynar, People v ...................................................................... 916
Czeryba v Marzolo ................................................................. 940
D
Daaja-Ra, Altegra Credit Co v .............................................. 865
Dabney, People v .................................................................... 862
DaimlerChrysler Corp, Alkiefy v .......................................... 939
DaimlerChrysler Corp, Alshubi v ......................................... 917
DaimlerChrysler Corp, Gilbert v .......................................... 1201
DaimlerChrysler Corp, Laura v ............................................ 926
DaimlerChrysler Corp, Magee v ......................... 108
DaimlerChrysler Corp, R adeljak v ....................................... 924
Daly, People v ......................................................................... 869
Daniels, People v (James H) ................................................. 895
Daniels, People v (James L) ................................................. 911
Dashkovitz, People v ............................................................. 863
Daugherty, People v ........................................................ 862, 897
Davis, People v ..................................................... 156
Davis, People v (Cortez) ........................................................ 927
Davis, People v (Jajuan) ........................................................ 879
Davis, People v (Kevin) ......................................................... 921
Davis, People v (Lee) ............................................................. 941
Davis, People v (Leon) .......................................................... 863
Davis, People v (Stephen) ..................................................... 910
Dean v Childs ......................................................................... 853
Dearborn (City of), Stanford v ............................................. 879
Deborah N Ribitwer & Associates, PC, Berman v .............. 914
xxxii 472 M
ICHIGAN
R
EPORTS
P
AGE
Deitering v Grand Blanc Charter Twp ................................ 869
Dell, People v ......................................................................... 870
Dempsey, Lockwood Bldg Co, Inc v ..................................... 869
Dennis v Ford ........................................................................ 912
Dennis, People v .................................................................... 895
Dep’t of Community Health, Censke v ................................ 917
Dep’t of Consumer & Industry Services, Bertling v .......... 915
Dep’t of Consumer & Industry Services, Mitchell Corp of
Owosso v ............................................................................ 923
Dep’t of Consumer & Industry Services, Vick v ................. 907
Dep’t of Consumer & Industry Services Dir-
ector, Associated Builders & Contractors v ... 117
Dep’t of Corrections, Morgan v ............................................ 877
Dep’t of Corrections, Murray v ............................................ 862
Dep’t of Corrections, Soto v ................................................. 866
Dep’t of Corrections, Werth v ............................................... 879
Dep’t of Corrections, Wright v ............................................. 938
Dep’t of Environmental Quality, B & B Group, LLP v ...... 940
Dep’t of Environmental Quality, Maxwell v ........................ 939
Dep’t of Labor & Economic Growth Director, Bertling v .. 922
Dep’t of Natural Resources v Carmody-Lahti
Real Estate, Inc ............................................... 359
Dep’t of Natural Resources, Hinojosa v .............................. 943
Dep’t of Transportation v Landstar Ligon, Inc .................. 894
Dep’t of Transportation, Lambert v .................................... 885
Dep’t of Transportation, McCreary v .................................. 885
Dep’t of Transportation, Miles v .......................................... 885
Dep’t of Transportation, Wolfe v ......................................... 885
Dep’t of Treasury v Brannon (Rosa) ................................... 915
Dep’t of Treasury v Brannon (Siberia) ................................ 915
Dep’t of Treasury v Brannon (Troy) ................................... 915
Dep’t of Treasury, Hojeije v .................................................. 894
Dep’t of Treasury, Newark Morning Ledger Co v .............. 942
Dep’t of TreasuryvSB&BTransportation Unlimited,
Inc ...................................................................................... 915
Detroit (City of), Bankston Construction, Inc v ................. 877
Detroit (City of), Bioresource, Inc v .................................... 868
Detroit (City of), Curtis v ..................................................... 872
T
ABLE OF
C
ASES
R
EPORTED
xxxiii
P
AGE
Detroit (City of), UAW-Ford Nat’l Ed Development &
Training Center v ............................................................. 854
Detroit Diesel Corp, Claybone v ........................................... 894
Detroit Edison Co v Public Service Comm No 1 ................ 897
Detroit Edison Co v Public Service Comm No 2 ................ 937
Deutsch v Berliner ................................................................ 894
Devault Estate v Pornpichit ................................................. 883
Deweese, People v .................................................................. 940
DeWitt Charter Twp, Slater v ....................................... 877, 942
Deyo v Deyo ........................................................................... 883
Dickinson v Limp Bizkit ....................................................... 909
Dilley, In re (Family Independence Agency v Warthan) ..... 876
Discount Tire & Battery, Barrett v ...................................... 902
Dively v William Beaumont Hosp ........................................ 906
Dixon, People v (Patricia) ..................................................... 940
Dixon, People v (Robert) ....................................................... 941
Dommert, Geresy v ............................................................... 878
Donaldson, People v .............................................................. 938
Donoho v Wal-Mart Stores, Inc ............................................ 944
Douglas, People v ................................................................... 867
Doxey, People v ...................................................................... 878
Drain, People v ...................................................................... 867
Drew Co, LLC (Ben) v Ontwa Twp ..................................... 886
Drohan, People v ................................................................... 881
Dunlap v Wayne Circuit Judge ...................................... 867, 922
Dunne, People v ..................................................................... 878
Durham, People v .................................................................. 939
Durling, Rose v ...................................................................... 894
Duverney v Big Creek Mentor Utility Authority ................ 882
Dykema Gossett, PLLC, MCA Financial Corp v ................. 878
E
Eads, People v ........................................................................ 941
Eason, Hawkins v .................................................................. 894
East Tawas (City of), Norman Corp v ................................. 894
Eastern Michigan Univ Bd of Regents, Herald Co, Inc v .. 928
Ebel, People v ........................................................................ 919
Echelon Homes v Carter Lumber Co ................. 192
Eckler v Howard Twp Bd of Trustees ................................. 878
xxxiv 472 M
ICHIGAN
R
EPORTS
P
AGE
Eddings, People v .................................................................. 940
Eddington, People v .............................................................. 869
Edmunds, People v ................................................................ 861
Egbert v Egbert ..................................................................... 878
Eggers, People of the City of Southgate v ........................... 896
Elezovic v Ford Motor Co ................................... 408
Elgrably v R oss ...................................................................... 896
Ellis v Azzar (In re Azzar Living Trust) ............................. 863
Ellis, People v ........................................................................ 912
Elsworth Enterprises, Inc v Genesys Regional Medical
Center ................................................................................ 863
Ely, People v ........................................................................... 923
Embery, People v ................................................................... 943
English v Blue Cross Blue Shield of Michigan ................... 937
English, People v ................................................................... 866
Environmental Quality (Dep’t of), B&BGroup, LLP v ... 940
Environmental Quality (Dep’t of), Maxwell v .................... 939
Equity Funding, Inc v Investment Ventures, Inc ............... 937
Erdman, People v .................................................................. 921
Essell v George W Auch Co .................................................. 909
Estelle, People v ..................................................................... 920
Evans v Hallal ....................................................................... 929
Evans, People v (Alverno) ..................................................... 890
Evans No 1, People v (Mario) ............................................... 870
Evans No 2, People v (Mario) ............................................... 870
Eyde v State of Michigan ...................................................... 868
Eyde (Louis J) Ltd Family Partnership v Meridian
Charter Twp ...................................................................... 866
F
Families Against Incinerator Risk v Washtenaw Co
Clerk .................................................................................. 891
Family Independence Agency v Aguirre (In re
Rogers) ........................................................................ 868, 884
Family Independence Agency v Banks (In re
Banks) ...................................................................859, 873, 897
Family Independence Agency v Brown (Jim) (In re
Brown) ............................................................................... 871
T
ABLE OF
C
ASES
R
EPORTED
xxxv
P
AGE
Family Independence Agency v Brown (Tammy) (In re
Thacker) ............................................................................ 871
Family Independence Agency v Cox (In re Cox) ................. 871
Family Independence Agency v Foondle (In re Foondle) ... 858
Family Independence Agency v Head (In re Mersino) ....... 903
Family Independence Agency v Henderson (In re
Henderson) ........................................................................ 874
Family Independence Agency v Hicks (In re Hicks) ........... 868
Family Independence Agency v Hutchinson (In re
Breault) ............................................................................. 873
Family Independence Agency v Kranz (In re Kranz) ......... 865
Family Independence Agency v Kranz (In re Lust) ............ 865
Family Independence Agency v Morris (In re Morris) ....... 858
Family Independence Agency v Streets (In re Mitchell) .... 877
Family Independence Agency v Tucker (In re Tucker) ...... 863
Family Independence Agency v Unger (In re Unger) ......... 871
Family Independence Agency v Vaughan (Rood) (In re
Vaughan) ........................................................................... 935
Family Independence Agency v Vaughan (Sara) (In re
Perez) ................................................................................. 935
Family Independence Agency v Warthan (In re Dilley) ..... 876
Family Independence Agency v Zandarski (In re
Zandarski) ......................................................................... 898
Farmer, Guerrero v ................................................................ 939
Fason, People v ...................................................................... 896
Federated Ins Co v Oakland Co Rd Comm ......................... 898
Felton, People v ..................................................................... 916
Fenwick, People v .................................................................. 918
Ferguson v City of Lincoln Park .......................................... 914
Ferguson, People v ................................................................. 862
Fernald, People v ................................................................... 908
Ferrell, People v ..................................................................... 941
Few, People v .......................................................................... 879
Fieger, Grievance Administrator v ....................................... 1244
Fields, People v (Blayne) ....................................................... 877
Fields, People v (Cedric) ....................................................... 943
Fields, People v (Randall) ..................................................... 938
Fillmore Twp v Secretary of State ..................... 566
xxxvi 472 M
ICHIGAN
R
EPORTS
P
AGE
Finley, People v (Keith) ......................................................... 893
Finley, People v (Mutizwa) ................................................... 938
Finnila v Arkin ................................................................ 851, 922
First Alliance Mortgage Co, Lewis v .................................... 894
First Federal of Michigan, Sutton v .............................. 879, 942
Flick, People v ........................................................................ 914
Flint (City of), AFSCME Council, Locals 1600 & 1799 v .. 866
Flint (City of), Bowers v ....................................................... 863
Flint (City of), Flint Police Officers Ass’n v ....................... 866
Flint (City of), Flint Professional Firefighters Union
Local 352 v ........................................................................ 866
Flint Police Officers Ass’n v City of Flint ........................... 866
Flint Professional Firefighters Union Local 352 v City
of Flint ............................................................................... 866
Flowers, People v ................................................................... 912
Floyd, People v ....................................................................... 926
Flushing City Council, Warda v ......................... 326
Foodland Distributors, Ayar v ............................ 713
Foodland Distributors, Ayar v .............................................. 892
Foondle, Family Independence Agency v (In re Foondle) .. 858
Foondle, In re (Family Independence Agency v Foondle) .. 858
Ford, Dennis v ....................................................................... 912
Ford Motor Co, Elezovic v .................................. 408
Ford Motor Co, Landeta v .................................................... 915
Ford Motor Co, Roberts v ..................................................... 895
Ford Motor Co, Spiegel v ...................................................... 878
Ford Motor Co, Tirado v ....................................................... 915
Ford Motor Co, Vargo v ......................................................... 941
Ford Motor Co, Wilcox v ....................................................... 941
Forsyth v Hopper ................................................................... 929
Fournier, People v .................................................................. 939
Fowler, People v ..................................................................... 852
Freeman, People v ................................................................. 932
Furness Golf Construction Inc v RVP Development
Corp ................................................................................... 894
Fuson, People v ...................................................................... 927
T
ABLE OF
C
ASES
R
EPORTED
xxxvii
P
AGE
G
Gaertner, Saginaw School Dist v .......................................... 867
Gammage, People v ............................................................... 915
Garcia, People v ..................................................................... 868
Garcia-Marcos, People v ........................................................ 878
Garden City Osteopathic Hosp, William Beaumont
Hosp v ................................................................................ 893
Gardner, People v (Alejandro) .............................................. 878
Gardner, People v (Ricky) ..................................................... 918
Garg v Macomb Co Community Mental Health
Services ............................................................. 263
Garner, People v (Derrick) .................................................... 861
Garner, People v (Woodrow) ................................................. 879
Garon v ACIA ........................................................................ 858
Gatski, People v ..................................................................... 887
Gay, People v .......................................................................... 896
General Motors Corp, Swilley v ........................................... 895
General Motors Corp, Wolf v ................................................ 854
Genesee Family Court Judge, Landon v .............................. 867
Genesys Regional Medical Center, Elsworth Enterprises,
Inc v ................................................................................... 863
George W Auch Co, Essell v ................................................. 909
Geresy v Dommert ................................................................ 878
Gerling Konzern Allgemeine Versicherungs AG
v Lawson .......................................................... 44
Gesing v City of Warren ....................................................... 861
Gibson, People v .................................................................... 938
Gilbert v DaimlerChrysler Corp ........................................... 1201
Gillette v Comstock Twp ...................................................... 870
Gillette v Stucki ..................................................................... 870
Givhan, People v .................................................................... 907
Gleason, People v ................................................................... 941
Golden, People v .................................................................... 938
Goldy, People v ....................................................................... 877
Gollman, People v .................................................................. 939
Gorenc, People v .................................................................... 862
Gossard, People v .................................................................. 878
Graham, People v .................................................................. 866
xxxviii 472 M
ICHIGAN
R
EPORTS
P
AGE
Graham v Rightsource Group, LLC ..................................... 896
Granberry v Harper Hosp .................................................... 912
Grand Blanc Charter Twp, Deitering v ............................... 869
Grand Rapids (City of), The Local Area Watch v ............... 852
Grand Trunk Western Railroad, Inc v Auto Warehousing
Co ....................................................................................... 872
Grant v Metalloy Corp .......................................................... 879
Grant Thornton, LLP, MCA Financial Corp v .................... 878
Grattan Twp v Kennedy ....................................................... 917
Graves, People v .................................................................... 879
Gray, Nelson v ....................................................................... 869
Great Lakes Beverage Co, Harrison v ................................. 913
Great Lakes Beverage Co, Kuzma v .................................... 893
Green, People v (Brent) ........................................................ 914
Green, People v (Glenn) ........................................................ 877
Green, People v (Kahil) ......................................................... 882
Green, People v (Michael) ..................................................... 859
Gregory, People v ................................................................... 920
Grievance Administrator v Fieger ....................................... 1244
Grievance Administrator v Lewis ........................................ 1248
Grievance Administrator v Warren ...................................... 1212
Grievance Administrator v Zameck ..................................... 1203
Griffin, People v (Randle) ..................................................... 851
Griffin, People v (Robert) ..................................................... 914
Griffith v State Farm Mut Automobile Ins Co ... 521
Grissom, People v .................................................................. 919
Gross v Landin ...................................................................... 923
Gross, People v ...................................................................... 917
Grosse Ile Twp, Bynum v ..................................................... 861
Gruca, Hattery v .................................................................... 880
Guerrero v Farmer ................................................................ 939
Gulyban, People v .................................................................. 916
Gunnett, People v .................................................................. 919
Gutierrez, People v ................................................................ 937
H
Haddix v Majchrzycki ........................................................... 851
Hahn, Hoerstman General Contracting, Inc v ................... 898
Haley v Calhoun Co Clerk .................................................... 893
T
ABLE OF
C
ASES
R
EPORTED
xxxix
P
AGE
Hallal, Evans v ...................................................................... 929
Hamm, People v ..................................................................... 916
Hamon, People v .................................................................... 918
Hampton, People v ................................................................ 895
Hanas, People v ..................................................................... 852
Handziak, Clark v ................................................................. 939
Haq, Terrasi v ........................................................................ 927
Harajli, Jabero v .................................................................... 893
Hardesty, People v ................................................................. 920
Hardy, People v ...................................................................... 941
Harper Hosp, Granberry v ................................................... 912
Harrington, People v (Kevin) ............................................... 854
Harrington, People v (Robert) .............................................. 921
Harris, People v ..................................................................... 916
Harris v R ahman ................................................................... 892
Harrison v Great Lakes Beverage Co .................................. 913
Harrison, People v ................................................................. 862
Haskell, People v ................................................................... 913
Hasson, People v .................................................................... 920
Hastings Mut Ins Co v Rundell ............................................ 880
Hattery v Gruca ..................................................................... 880
Havens, People v ................................................................... 914
Hawkins v Eason ................................................................... 894
Hawkins, People v ................................................................. 943
Hayes, People v ...................................................................... 937
Hayley v Allstate Ins Co ....................................................... 923
Haywood, People v ................................................................. 910
Head, Family Independence Agency v (In re Mersino) ...... 903
Hearington, People v ............................................................. 894
Heinle, People v ..................................................................... 861
Hemp, People v ...................................................................... 879
Henderson, Family Independence Agency v (In re
Henderson ......................................................................... 874
Henderson, In re (Family Independence Agency v
Henderson) ........................................................................ 874
Henderson, People v (Alfredrick) ......................................... 919
Henderson, People v (Lawrence) .......................................... 896
Hendrick, People v ............................................... 555
Henry, People v (Anthony) .................................................... 861
xl 472 M
ICHIGAN
R
EPORTS
P
AGE
Henry, People v (Patrick) ...................................................... 851
Herald Co, Inc v Eastern Michigan Univ Bd of Regents ... 928
Hernandez, People v (Augustine) ......................................... 913
Hernandez, People v (Pedro) ................................................ 939
Herndon v Oakwood Healthcare, Inc .................................. 938
Herschfus v Herschfus .......................................................... 893
Hesse v Chippewa Valley Schools ......................................... 878
Hicks, Family Independence Agency v (In re Hicks) .......... 868
Hicks, In re (Family Independence Agency v Hicks) .......... 868
Hicks, People v (Dennis) ....................................................... 895
Hicks, People v (Rodney) ...................................................... 869
Higgins, Hlifka v ................................................................... 877
Highland Park (City of), Highland Park Policemen &
Firemen Retirement System v ........................................ 866
Highland Park Policemen & Firemen Retirement System
v City of Highland Park ................................................... 866
Hill, People v (Dwayne) ........................................................ 918
Hill, People v (Joseph) .......................................................... 893
Hindman, People v ................................................................ 875
Hinojosa v Dep’t of Natural Resources ............................... 943
Hirmuz, People v ................................................................... 876
Hirschman, Little v ............................................................... 862
Hlifka v Higgins .................................................................... 877
Hoaglin, People v ................................................................... 920
Hoerstman General Contracting, Inc v Hahn .................... 898
Hogan v Hogan (In re Hogan Trust No 1) .......................... 877
Hogan, Sawyer v (In re Hogan Trust No 2) ....................... 878
Hogan Trust No 1, In re (Hogan v Hogan) ......................... 877
Hogan Trust No 2, In re (Sawyer v Hogan) ....................... 878
Hojeije v Brockman ............................................................... 894
Hojeije v Dep’t of Treasury .................................................. 894
Holland, People v (Marlin) ................................................... 938
Holland, People v (Robert) ................................................... 854
Holland Community Hosp, Riley v ...................................... 908
Holloway, People v ................................................................. 920
Home Owners Ins Co v Reed ............................................... 877
Homeowner Construction Lien Recovery Fund, Church’s
Builder Wholesale v (Church’s Builder Wholesale v
Loesser) .............................................................................. 894
T
ABLE OF
C
ASES
R
EPORTED
xli
P
AGE
Hopper, Forsyth v .................................................................. 929
Horten, People v .................................................................... 919
Hoste v Chrysler Corp Plymouth ......................................... 943
Houston, People v (Charles) ................................................. 917
Houston, People v (Michon) ................................................. 918
Howard Twp Bd of Trustees, Eckler v ................................ 878
Hritz, People v ....................................................................... 919
Hubbard v Nat’l Railroad Passenger Corp .......................... 853
Hudgins, People v .................................................................. 923
Hudson, People v (Booker) ................................................... 862
Hudson, People v (William) .................................................. 939
Huff, People v ........................................................................ 914
Hughes v Lake Superior & Ishpeming Railroad Co ........... 923
Hughey, People v ................................................................... 910
Hulce, People v ...................................................................... 890
Hunt, People v ....................................................................... 919
Hunter, Oil Capital Race Venture, Inc v ............................. 880
Hurless, People v ................................................................... 943
Hurley Medical Center, Zsigo v ............................................ 899
Huron Co, Stokan v .............................................................. 871
Hutchinson, Family Independence Agency v (In re
Breault) ............................................................................. 873
Hutzel Hosp, R awls v ............................................................ 937
I
In re Azzar Living Trust (Ellis v Azzar) ............................. 863
In re Banks (Family Independence Agency v
Banks) ................................................................ 859, 873, 897
In re Behrns Trust (Behrns v Behrns) ................................ 939
In re Breault (Family Independence Agency v
Hutchinson) ...................................................................... 873
In re Brown (Family Independence Agency v Jim
Brown) ............................................................................... 871
In re Certified Questions From the United States Court
of Appeals for the Sixth Circuit (Melson v Prime Ins
Syndicate, Inc) .................................................................. 1225
In re Conrad ..................................................................1242, 1255
In re Cox (Family Independence Agency v Cox) ................. 871
In re Dilley (Family Independence Agency v Warthan) ..... 876
xlii 472 M
ICHIGAN
R
EPORTS
P
AGE
In re Foondle (Family Independence Agency v Foondle) ... 858
In re Henderson (Family Independence Agency v
Henderson) ........................................................................ 874
In re Hicks (Family Independence Agency v Hicks) ........... 868
In re Hogan Trust No 1 (Hogan v Hogan) .......................... 877
In re Hogan Trust No 2 (Sawyer v Hogan) ........................ 878
In re Kranz (Family Independence Agency v Kranz) ......... 865
In re Lake Level for Bambi Lake (Shiawassee Co v Bambi
Lake Ass’n) ....................................................................... 939
In re Lust (Family Independence Agency v Kranz) ............ 865
In re Mersino (Family Independence Agency v Head) ....... 903
In re Mitchell (Family Independence Agency v Streets) .... 877
In re Moore ............................................................................ 1207
In re Morris (Family Independence Agency v Morris) ....... 858
In re Noecker ....................................................... 1
In re Patterson (Shuman v Patterson) ................................ 904
In re Perez (Family Independence Agency v Sara
Vaughan) ........................................................................... 935
In re Petition for Foreclosure of Certain Parcels (Jackson
Co Treasurer v Christie) .................................................. 903
In re R ogers (Family Independence Agency v
Aguirre) ....................................................................... 868, 884
In re Tarlea Estate (Tarlea v Crabtree) .............................. 891
In re Thacker (Family Independence Agency v Tammy
Brown) ............................................................................... 871
In re Tucker (Family Independence Agency v Tucker) ...... 863
In re Unger (Family Independence Agency v Unger) ......... 871
In re VanConett Estate (Rau v Leidlein) ............................. 886
In re Vaughan (Family Independence Agency v Rood
Vaughan) ........................................................................... 935
In re Walker (People v Terrence Walker) ............................ 939
In re Zandarski (Family Independence Agency v
Zandarski) ......................................................................... 898
Industrial Quality Control Inc, OIS, Inc v .......................... 872
Integon National Ins Co, Jarrad v ..................... 207
Integon National Ins Co, Jarrad v ....................................... 1251
International Christian Music Ministry, Inc, Ocwen
Federal Bank, FSB v ........................................................ 923
T
ABLE OF
C
ASES
R
EPORTED
xliii
P
AGE
Investment Ventures, Inc, Equity Funding, Inc v .............. 937
Ish, People v ........................................................................... 922
J
J&JFarmer Leasing, Inc v Citizens Ins Co of
America ............................................................. 353
Jabero v Harajli ..................................................................... 893
Jackson, People v (Aaron) ..................................................... 941
Jackson, People v (Anthony) ................................................ 941
Jackson, People v (Christopher) ........................................... 918
Jackson, People v (Nicholas) ................................................ 884
Jackson, People v (Stanley) .................................................. 941
Jackson, People v (Troy) ....................................................... 878
Jackson v State Farm Mut Automobile Ins Co ................... 942
Jackson Co Treasurer v Christie (In re Petition for
Foreclosure of Certain Parcels) ....................................... 903
Jacobs, People v .............................................................. 852, 922
Janoskey, People v ................................................................. 896
Jarrad v Integon National Ins Co ...................... 207
Jarrad v Integon National Ins Co ........................................ 1251
Jefferson, Auto-Owners Ins Co v ......................................... 916
Jeffries, People v .................................................................... 920
Jenkins, People v ................................................. 26
Jenkins, People v ................................................................... 893
Jensen, People v .................................................................... 882
Jewell, People v ..................................................................... 912
Joachim v LSM Family Trust ............................................... 861
Johnson, People v (Anthony) ................................................ 899
Johnson, People v (Demetrius) ............................................. 916
Johnson, People v (Derek) .................................................... 907
Johnson, People v (Dijon) ..................................................... 871
Johnson, People v (Joseph) ................................................... 921
Johnson, People v (Pierre) .................................................... 909
Johnson, People v (Ronald) .................................................. 910
Johnson, People v (Stephen) ................................................ 894
Johnson, People v (Terry) ..................................................... 915
Johnson, People v (William) ................................................. 915
Joliet v Pitoniak .................................................................... 908
xliv 472 M
ICHIGAN
R
EPORTS
P
AGE
Jones, People v (Anthony) .................................................... 865
Jones, People v (Brian) ......................................................... 894
Jones, People v (Charlie) ...................................................... 865
Jones, People v (Freeman) .................................................... 937
Jones, People v (Freezel) ...................................................... 893
Jones, People v (Jennifer) ..................................................... 907
Jones, People v (John) .......................................................... 911
Jones, People v (Willie) ......................................................... 879
Justice, People v .................................................................... 940
K
Kaatz Funeral Home, Inc, Kenny v ..................................... 929
Kaske, People v ...................................................................... 919
Keane, People v ...................................................................... 916
Keffer, People v ...................................................................... 940
Keith, People v ....................................................................... 868
Kelley, People v ...................................................................... 914
Kelly, People v (Curtis) ......................................................... 852
Kelly, People v (Jerome) ........................................................ 920
Kelly, People v (Jesse) ........................................................... 867
Kemper Corp, Nava v ............................................................ 941
Kendricks, People v ............................................................... 896
Kennedy, Grattan Twp v ....................................................... 917
Kenny v Kaatz Funeral Home, Inc ...................................... 929
Kenyatta, People v ................................................................. 940
Kessler, People v .................................................................... 920
Khattar, Winalis v ........................................................... 862, 897
Kidder, People v ..................................................................... 921
Kimbrough, People v ............................................................. 868
Kindred, People v .................................................................. 880
King, People v (Darrett) ....................................................... 866
King, People v (David) .......................................................... 926
King, People v (James) .......................................................... 919
King, People v (Ramon) ........................................................ 910
Kinsley, Bettis v ..................................................................... 915
Kirksey, People v ................................................................... 939
Kitts, Quest Financial Services, Inc v ................................. 878
Kline, Adair Holdings, LLC v ............................................... 896
Knecht v Quick-Sav Food Stores, Ltd .................................. 868
T
ABLE OF
C
ASES
R
EPORTED
xlv
P
AGE
Koopmans v Waste Management of Michigan, Inc ............. 866
Korn v Southfield City Clerk ................................................ 867
Korri v Norway Vulcan Area Schools .................................. 872
Kosmalski v Willard .............................................................. 937
Koss, People v ........................................................................ 921
Kramer, People v ................................................................... 918
Kranz, Family Independence Agency v (In re Kranz) ........ 865
Kranz, Family Independence Agency v (In re Lust) ........... 865
Kranz, In re (Family Independence Agency v Kranz) ........ 865
Krause, People v .................................................................... 912
Krochmal v Paul Revere Life Ins Co ................................... 928
Kruithof, People v .................................................................. 916
Kucharski, People v ............................................................... 938
Kujik, People v ....................................................................... 933
Kuzma v Great Lakes Beverage Co ..................................... 893
Kuzma, Mulkey v ................................................................... 927
L
LSM Family Trust, Joachim v .............................................. 861
Labelle, People v .................................................................... 881
Labor & Economic Growth Director (Dep’t of),
Bertling v .......................................................................... 922
Lackey, People v ..................................................................... 940
Lahti-Peterson, People v ....................................................... 867
Lake Level for Bambi Lake, In re (Shiawassee Co v
Bambi Lake Ass’n) ........................................................... 939
Lake Orion Community Schools, Mick v ............................. 883
Lake Superior & Ishpeming Railroad Co, Hughes v .......... 923
Lakritz, Wissbrun & Associates, PC, Sorkowitz v .............. 898
Lambert v Dep’t of Transportation ..................................... 885
Lancaster, People v ................................................................ 894
Landeta v Ford Motor Co ..................................................... 915
Landin, Gross v ..................................................................... 923
Landon v Genesee Family Court Judge ............................... 867
Landstar Ligon, Inc, Dep’t of Transportation v ................. 894
LaPorte v William Beaumont Hosp ..................................... 892
LaSalle Nat’l Bank v Master Guard Home Security, Inc ... 870
Laura v DaimlerChrysler Corp ............................................. 926
Lawrence, People of the Twp of Bloomfield v ..................... 942
xlvi 472 M
ICHIGAN
R
EPORTS
P
AGE
Lawson, Gerling Konzern Allgemeine
Versicherungs AG v ......................................... 44
Lawson, People v (John) ....................................................... 895
Lawson, People v (Tony) ....................................................... 894
Leach, People v ...................................................................... 862
LeDuc, People v ..................................................................... 880
Lee, Bermudez v .................................................................... 923
Lee, People v (Herbert) ......................................................... 862
Lee, People v (Marvin) .......................................................... 862
Leidlein, Rau v (In re VanConett Estate) ............................ 886
Leland Twp, Sinacola v ......................................................... 886
Lentini v Urbancic ................................................................ 885
Lewis v First Alliance Mortgage Co ..................................... 894
Lewis, Grievance Administrator v ....................................... 1248
Lewis, People v (Roderick) .................................................... 921
Lewis, People v (William) ..................................................... 939
Lexington Twp, Sanilac Co Parks Comm v ......................... 866
Liggins, People v .................................................................... 911
Lillian J Behrns Trust, In re (Behrns v Behrns) ................ 939
Limp Bizkit, Dickinson v ...................................................... 909
Lincoln Park (City of), Ferguson v ...................................... 914
Lindahl v Rubright ................................................................ 913
Link, People v ........................................................................ 916
Little v Hirschman ................................................................ 862
Little, People v (Karl) ........................................................... 881
Little, People v (Mary) .......................................................... 870
Little v Swanson Funeral Homes, Inc ................................. 922
Littles, People v ..................................................................... 915
Local Area Watch (The) v City of Grand Rapids ................ 852
Lockwood Bldg Co, Inc v Dempsey ...................................... 869
Loesser, Church’s Builder Wholesale v (Church’s Builder
Wholesale v Homeowner Construction Lien Recovery
Fund) ................................................................................. 894
Long v Children’s Hosp of Michigan ................................... 941
Lonsby, People v .................................................................... 868
Lord, Miller v ......................................................................... 885
Louis J Eyde Ltd Family Partnership v Meridian Charter
Twp .................................................................................... 866
Lowenthal, O’Bryan v ........................................................... 938
T
ABLE OF
C
ASES
R
EPORTED
xlvii
P
AGE
Lucero, People v .................................................................... 942
Lucey, People v ....................................................................... 916
Lumsden, People v ................................................................ 917
Lust, In re (Family Independence Agency v Kranz) ........... 865
Lyons, People v ...................................................................... 938
M
MC Office Investments, LLC, Biscayne Corner Deli &
Bakery East, LLC v .......................................................... 892
MCA Financial Corp v Dykema Gossett, PLLC .................. 878
MCA Financial Corp v Grant Thornton, LLP .................... 878
MGM Grand Detroit, LLC, Merlino v ................................. 915
MSAS Cargo International, Mosimann v ............................ 895
Mabins v Bustos .................................................................... 865
MacDonald’s Industrial Products, Inc, Buitenhuis v ......... 916
MacIntyre v MacIntyre ......................................................... 882
Mack, People v ....................................................................... 866
Macomb Co Community Mental Health
Services, Garg v ............................................... 263
Maddox, People v ................................................................... 868
Madyun, People v .................................................................. 862
Magee v DaimlerChrysler Corp .......................... 108
Mahan, People v (Dequan) ................................................... 868
Mahan, People v (Tyrone) .................................................... 877
Majchrzycki, Haddix v .......................................................... 851
Malik, People v ...................................................................... 874
Mallory, People v .................................................................... 911
Malone, People v (Donald) .................................................... 917
Malone, People v (Jimmie) ................................................... 940
Manistee Co Rd Comm v Northwoods Development,
LLC .................................................................................... 854
Manning, People v (Antonio) ................................................ 877
Manning, People v (Troy) ..................................................... 861
Manzo v Petrella .................................................................... 865
Mapp, People v ....................................................................... 941
Marshall, People v (Anton) ................................................... 869
Marshall, People v (Bobby) ................................................... 915
Martin, People v (Gregory) ................................................... 930
xlviii 472 M
ICHIGAN
R
EPORTS
P
AGE
Martin, People v (Jacob) ....................................................... 868
Martin, People v (Reginald) .................................................. 878
Martin, People v (Robert) ..................................................... 911
Marzolo, Czeryba v ................................................................ 940
Masheli, People v ................................................................... 877
Master Guard Home Security, Inc, LaSalle Nat’l Bank v .. 870
Mathis, People v .................................................................... 878
Maxwell v Dep’t of Environmental Quality ........................ 939
May, People v ......................................................................... 912
Mayberry, People v ................................................................ 880
Mazer, People v ...................................................................... 910
McAlkich, People v ................................................................ 919
McCain, People v ................................................................... 870
McCann No 1, People v ......................................................... 880
McCann No 2, People v ......................................................... 895
McCoy, People v ..................................................................... 940
McCracken, People v ............................................................. 895
McCray, People v ................................................................... 871
McCreary v Dep’t of Transportation ................................... 885
McCreary, People v ................................................................ 861
McCreery, People v ................................................................ 916
McDonald v Vaughn .............................................................. 901
McDonnell v American Nat’l Red Cross .............................. 871
McFarland v Travelers Ins Co .............................................. 861
McGee, People v ..................................................................... 882
McKay, People v ..................................................................... 863
McKechnie, People v ............................................................. 867
McKee, People v ..................................................................... 914
McLaren, Ousley v ................................................................ 927
McMurry, People v ................................................................. 919
McNeal, People v ................................................................... 915
McPherson, People v ............................................................. 882
Mcrae, People v ...................................................................... 940
Meijer Companies, Ltd, Bronson v ...................................... 896
Melson v Prime Ins Syndicate, Inc (In re Certified
Questions From the United States Court of Appeals
for the Sixth Circuit) ........................................................ 1225
Meridian Charter Twp, Louis J Eyde Ltd Family
Partnership v .................................................................... 866
T
ABLE OF
C
ASES
R
EPORTED
xlix
P
AGE
Merlino v MGM Grand Detroit, LLC .................................. 915
Mersino, In re (Family Independence Agency v Head) ...... 903
Messinger, Oakes v ................................................................ 862
Metalloy Corp, Grant v ......................................................... 879
Michigan Chiropractic Council v Comm’r of the Office of
Financial & Ins Services .................................................. 899
Michigan Electric Cooperative Ass’n v Public Service
Comm No 1 ....................................................................... 897
Michigan Electric Cooperative Ass’n v Public Service
Comm No 2 ....................................................................... 937
Michigan Federal Credit Union, Wintersmith v ................. 896
Michigan Public School Employees’
Retirement Bd, Studier v ................................ 642
Michigan (State of), Eyde v .................................................. 868
Michigan (State of), Michigan State Police Troopers
Ass’n v ............................................................................... 914
Michigan State Police Troopers Ass’n v State
of Michigan ....................................................................... 914
Mick v Bass ............................................................................ 883
Mick v Lake Orion Community Schools .............................. 883
Miles v Dep’t of Transportation ........................................... 885
Mileski, People v .................................................................... 927
Miller v Lord .......................................................................... 885
Miller, People v (Frank) ........................................................ 915
Miller, People v (Philip) ........................................................ 913
Miller, Ypsilanti Charter Twp v ........................................... 861
Mills, People v ........................................................................ 867
Mims, People v ....................................................................... 865
Minner, People v .................................................................... 919
Mitchell, In re (Family Independence Agency v Streets) ... 877
Mitchell, People v (James) .................................................... 940
Mitchell, People v (Nathaniel) .............................................. 885
Mitchell, People v (Phillip) ................................................... 912
Mitchell Corp of Owosso v Dep’t of Consumer & Industry
Services .............................................................................. 923
Mixon, People v (Derek) ....................................................... 913
Mixon, People v (Ronnie) ...................................................... 941
Mobley, People v .................................................................... 866
l 472 M
ICHIGAN
R
EPORTS
P
AGE
Moffit, People v ...................................................................... 863
Mogassabi v Chojnacki .......................................................... 858
Molina, People v .................................................................... 907
Mona, Yousif v ....................................................................... 900
Montague, People v ............................................................... 862
Montgomery, People v ........................................................... 922
Montgomery, People of West Bloomfield Twp v .................. 921
Montville, Clay Twp v ........................................................... 885
Moore, In re ........................................................................... 1207
Moore, People v ..................................................................... 943
Moorer, People v .................................................................... 901
Morgan v Dep’t of Corrections ............................................. 877
Morris, Family Independence Agency v (In re Morris) ...... 858
Morris, In re (Family Independence Agency v Morris) ...... 858
Morton, People v .................................................................... 940
Mosimann v MSAS Cargo International ............................. 895
Mt Brighton, Inc, Barrett v .................................................. 891
Mounts v Van Beeste ............................................................. 937
Mowrey v Westfield Ins Co ................................................... 895
Muehlenbein, People v .......................................................... 861
Muhammad, People v ............................................................ 877
Mulkey v Kuzma .................................................................... 927
Mullen, People v .................................................................... 867
Mullins, People v (Charles) ................................................... 938
Mullins, People v (Christopher) ........................................... 862
Munden, People v .................................................................. 913
Murray v Dep’t of Corrections ............................................. 862
Murray, People v .................................................................... 910
Muskegon (City of), Rudd v .................................................. 914
Mustazza v Cheboygan Co Rd Comm .................................. 915
Muzyl Trust (The Edward-Marlah), The Mable Cleary
Trust v ............................................................................... 866
Myers, People v (George) ...................................................... 852
Myers, People v (Randy) ....................................................... 910
N
Nasser, People v ..................................................................... 912
Nat’l Railroad Passenger Corp, Hubbard v ......................... 853
T
ABLE OF
C
ASES
R
EPORTED
li
P
AGE
Nat’l Union Fire Ins Co of Pittsburgh, PA, American
Bumper & Mfg Co v ......................................................... 880
Nationwide Ins Co, Sundell v ............................................... 868
Natural Resources (Dep’t of) v Carmody-Lahti
Real Estate, Inc ............................................... 359
Natural Resources (Dep’t of), Hinojosa v ............................ 943
Nault v Webb ......................................................................... 943
Nava v Kemper Corp ............................................................. 941
Neal, People v (Cordall) ........................................................ 916
Neal, People v (Samuel) ........................................................ 881
Neff, People v ......................................................................... 863
Nelson v Gray ........................................................................ 869
Nelson, People v .................................................................... 911
Nett, People v ........................................................................ 912
Nevels, People v ..................................................................... 868
New Baltimore Police Dep’t (City of), Zammit v ................ 895
Newark Morning Ledger Co v Dep’t of Treasury ............... 942
Newman, People v ................................................................. 939
Ngem, People v ...................................................................... 910
Nguyen v Professional Code Inspections of Michigan,
Inc ...................................................................................... 885
Nielsen v Pallisco ................................................................... 880
Noecker, In re ....................................................... 1
Norman, People v .................................................................. 913
Norman Corp v City of East Tawas ..................................... 894
Northington, People v ........................................................... 917
Northwoods Development, LLC, Manistee Co Rd
Comm v ............................................................................. 854
Norway Vulcan Area Schools, Korri v ................................. 872
Nosan & Silverman Homes, LLC, Phoenix Investment
Holding Co, Inc v .............................................................. 853
O
OIS, Inc v Industrial Quality Control Inc ........................... 872
Oakes v Messinger ................................................................. 862
Oakland Co Rd Comm, Federated Ins Co v ........................ 898
Oakwood Healthcare, Inc, Herndon v ................................. 938
Oakwood Hosp & Medical Center, Bailey v ....... 685
lii 472 M
ICHIGAN
R
EPORTS
P
AGE
Oakwood Hosp & Medical Centers, Wyatt v ....................... 929
O’Bryan v Lowenthal ............................................................ 938
Ocwen Federal Bank, FSB v International Christian
Music Ministry, Inc ........................................................... 923
Office Planning Group, Inc v Baraga-
Houghton-Keweenaw Child Development
Bd ...................................................................... 479
Oil Capital R ace Venture, Inc v Hunter .............................. 880
Olivares v Performance Abatement Services ...................... 941
Olson v Olson ......................................................................... 922
Onaway Community Federal Credit Union, Peacock v ...... 852
O’Neal, People v .................................................................... 915
Ontwa Twp, Ben Drew Co, LLC v ....................................... 886
Option One Mortgage Corp v Ursery .................................. 881
Orick, People v ....................................................................... 882
Osborne, People v .................................................................. 896
Ossowski, People v ................................................................ 915
Ostroth v Warren Regency, GP, LLC .................................... 898
Oswald, People v .................................................................... 918
Ouellette, People v ................................................................. 914
Ousley v McLaren ................................................................. 927
Overton, People v .................................................................. 861
Owens, People v (Andrew) .................................................... 877
Owens, People v (Scott) ........................................................ 865
P
Paige, People v (Billy) ........................................................... 893
Paige, People v (Brian) .......................................................... 865
Pallisco, Nielsen v .................................................................. 880
Paramore, People v ................................................................ 917
Parcell v Auto-Owners Ins Co .............................................. 852
Parker, People v (Frank) ....................................................... 894
Parker No 1, People v (Daryl) .............................................. 866
Parker No 2, People v (Daryl) .............................................. 867
Parks, People v ...................................................................... 920
Parnell, People v (James) ...................................................... 919
Parnell, People v (Michael) ................................................... 878
Patterson, In re (Shuman v Patterson) ............................... 904
T
ABLE OF
C
ASES
R
EPORTED
liii
P
AGE
Patterson, People v (Joseph) ................................................ 867
Patterson, People v (Randy) ........................................... 865, 922
Patterson, Shuman v (In re Patterson) ............................... 904
Patton, People v ..................................................................... 939
Paul Revere Life Ins Co, Krochmal v .................................. 928
Payette, People v ................................................................... 916
Payne, People v ...................................................................... 894
Peacock v Onaway Community Federal Credit Union ....... 852
Pelikan, People v ................................................................... 919
People v Adelson .................................................................... 862
People v Al-Timimi ................................................................ 882
People v Alexander ................................................................ 878
People v Allen ........................................................................ 862
People v Altamimi ................................................................. 939
People v Ambrose .................................................................. 896
People v Anderson (Christopher) ......................................... 912
People v Anderson (Mark) .................................................... 921
People v Anderson (Michael) ................................................ 912
People v Anderson (Quiller) ................................................. 918
People v Anderson (Willie) .................................................... 937
People v Andrews .................................................................. 861
People v Armstrong ............................................................... 879
People v Arquette .................................................................. 870
People v Artibee ..................................................................... 919
People v Atkins ...................................................................... 894
People v Aussicker ................................................................. 867
People v Austin ...................................................................... 868
People v Baker ....................................................................... 941
People v Ballinger .................................................................. 940
People v Bandy ...................................................................... 893
People v Barawskas ............................................................... 852
People v Barhite .................................................................... 881
People v Barnes ..................................................................... 866
People v Bartholomew ........................................................... 868
People v Bates ................................................................. 851, 897
People v Beag ......................................................................... 917
People v Bell .......................................................................... 939
People v Belser ....................................................................... 896
People v Belvin ...................................................................... 877
liv 472 M
ICHIGAN
R
EPORTS
P
AGE
People v Benavidez ................................................................ 879
People v Berry ....................................................................... 913
People v Bey ........................................................................... 895
People v Bill ........................................................................... 913
People v Blake ....................................................................... 939
People v Bland ....................................................................... 896
People v Blue ......................................................................... 879
People v Bolduc ...................................................................... 868
People v Bonner ..................................................................... 879
People v Borucki .................................................................... 916
People v Bostick ..................................................................... 891
People v Bowen ...................................................................... 916
People v Boyd ......................................................................... 895
People v Boyles ...................................................................... 943
People v Braxton ................................................................... 927
People v Breeding .................................................................. 877
People v Bridinger ................................................................. 868
People v Brooks (Jeremiah) .................................................. 896
People v Brooks (Thomas) .................................................... 865
People v Brown (Calvin) ....................................................... 940
People v Brown (Charles) ..................................................... 852
People v Brown (Derrick) ..................................................... 943
People v Brown (Mario) ........................................................ 911
People v Brown (Phillip) ....................................................... 937
People v Brown (Sullivan) .................................................... 882
People v Brown No 1 (Craig) ................................................ 875
People v Brown No 2 (Craig) ................................................ 922
People v Bryant ..................................................................... 907
People v Buford ..................................................................... 915
People v Bulls ........................................................................ 867
People v Burns (David) ......................................................... 917
People v Burns (Jay) ............................................................. 896
People v Burris ...................................................................... 890
People v Burse ....................................................................... 938
People v Burt ......................................................................... 911
People v Buss ......................................................................... 940
People v Bussey ..................................................................... 896
People v Buswa ...................................................................... 868
People v Butler ...................................................................... 867
T
ABLE OF
C
ASES
R
EPORTED
lv
P
AGE
People v Byars ....................................................................... 868
People v Bye ........................................................................... 941
People v Byrd ......................................................................... 907
People v Cadieux ................................................................... 917
People v Cagle ........................................................................ 884
People v Calicut ..................................................................... 910
People v Camburn ................................................................. 862
People v Campbell (Anthony) ............................................... 942
People v Campbell (David A) ................................................ 867
People v Campbell (David M) ............................................... 870
People v Carpenter ................................................................ 878
People v Carter (Gregory) ..................................................... 912
People v Carter (Joel) ............................................................ 895
People v Casey (Antonio) ...................................................... 894
People v Casey (Roderick) .................................................... 940
People v Caswell .................................................................... 921
People v Cato ......................................................................... 852
People v Chahine ................................................................... 886
People v Chambers ................................................................ 879
People v Chontos ................................................................... 895
People v Chrzan ..................................................................... 908
People v Clardy ...................................................................... 911
People v Clark ........................................................................ 940
People v Clarkston ................................................................. 893
People v Cloy .......................................................................... 861
People v Cohen ...................................................................... 863
People v Cole .......................................................................... 911
People v Coleman .................................................................. 866
People v Colen ....................................................................... 866
People v Coley ........................................................................ 939
People v Collier ...................................................................... 895
People v Collins ..................................................................... 940
People v Conic ........................................................................ 870
People v Conner ..................................................................... 918
People v Conway .................................................................... 870
People v Conyers ................................................................... 944
People v Cooper ..................................................................... 890
People v Couch ....................................................................... 896
People v Cowans .................................................................... 866
lvi 472 M
ICHIGAN
R
EPORTS
P
AGE
People v Crain ........................................................................ 913
People v Crider ...................................................................... 877
People v Crippen .................................................................... 882
People v Cristini .................................................................... 920
People v Crockett ................................................................... 897
People v Cummings ............................................................... 877
People v Curry (Kenneth) ..................................................... 880
People v Curry (Tavar) ......................................................... 878
People v Cynar ....................................................................... 916
People v Dabney .................................................................... 862
People v Daly ......................................................................... 869
People v Daniels (James H) .................................................. 895
People v Daniels (James L) .................................................. 911
People v Dashkovitz .............................................................. 863
People v Daugherty ......................................................... 862, 897
People v Davis ...................................................... 156
People v Davis (Cortez) ......................................................... 927
People v Davis (Jajuan) ......................................................... 879
People v Davis (Kevin) .......................................................... 921
People v Davis (Lee) .............................................................. 941
People v Davis (Leon) ........................................................... 863
People v Davis (Stephen) ...................................................... 910
People v Dell .......................................................................... 870
People v Dennis ..................................................................... 895
People v Deweese ................................................................... 940
People v Dixon (Patricia) ...................................................... 940
People v Dixon (Robert) ........................................................ 941
People v Donaldson ............................................................... 938
People v Douglas .................................................................... 867
People v Doxey ....................................................................... 878
People v Drain ....................................................................... 867
People v Drohan .................................................................... 881
People v Dunne ...................................................................... 878
People v Durham ................................................................... 939
People v Eads ......................................................................... 941
People v Ebel ......................................................................... 919
People v Eddings ................................................................... 940
People v Eddington ............................................................... 869
People v Edmunds ................................................................. 861
T
ABLE OF
C
ASES
R
EPORTED
lvii
P
AGE
People v Ellis ......................................................................... 912
People v Ely ........................................................................... 923
People v Embery .................................................................... 943
People v English .................................................................... 866
People v Erdman ................................................................... 921
People v Estelle ...................................................................... 920
People v Evans (Alverno) ...................................................... 890
People v Evans No 1 (Mario) ................................................ 870
People v Evans No 2 (Mario) ................................................ 870
People v Fason ....................................................................... 896
People v Felton ...................................................................... 916
People v Fenwick ................................................................... 918
People v Ferguson .................................................................. 862
People v Fernald .................................................................... 908
People v Ferrell ...................................................................... 941
People v Few .......................................................................... 879
People v Fields (Blayne) ........................................................ 877
People v Fields (Cedric) ........................................................ 943
People v Fields (Randall) ...................................................... 938
People v Finley (Keith) ......................................................... 893
People v Finley (Mutizwa) .................................................... 938
People v Flick ......................................................................... 914
People v Flowers .................................................................... 912
People v Floyd ........................................................................ 926
People v Fournier .................................................................. 939
People v Fowler ...................................................................... 852
People v Freeman .................................................................. 932
People v Fuson ....................................................................... 927
People v Gammage ................................................................ 915
People v Garcia ...................................................................... 868
People v Garcia-Marcos ......................................................... 878
People v Gardner (Alejandro) ............................................... 878
People v Gardner (Ricky) ...................................................... 918
People v Garner (Derrick) .................................................... 861
People v Garner (Woodrow) .................................................. 879
People v Gatski ...................................................................... 887
People v Gay .......................................................................... 896
People v Gibson ..................................................................... 938
People v Givhan ..................................................................... 907
lviii 472 M
ICHIGAN
R
EPORTS
P
AGE
People v Gleason .................................................................... 941
People v Golden ..................................................................... 938
People v Goldy ....................................................................... 877
People v Gollman ................................................................... 939
People v Gorenc ..................................................................... 862
People v Gossard ................................................................... 878
People v Graham ................................................................... 866
People v Graves ..................................................................... 879
People v Green (Brent) ......................................................... 914
People v Green (Glenn) ......................................................... 877
People v Green (Kahil) .......................................................... 882
People v Green (Michael) ...................................................... 859
People v Gregory ................................................................... 920
People v Griffin (Randle) ...................................................... 851
People v Griffin (Robert) ...................................................... 914
People v Grissom ................................................................... 919
People v Gross ....................................................................... 917
People v Gulyban ................................................................... 916
People v Gunnett ................................................................... 919
People v Gutierrez ................................................................. 937
People v Hamm ...................................................................... 916
People v Hamon ..................................................................... 918
People v Hampton ................................................................. 895
People v Hanas ...................................................................... 852
People v Hardesty .................................................................. 920
People v Hardy ...................................................................... 941
People v Harrington (Kevin) ................................................ 854
People v Harrington (Robert) ............................................... 921
People v Harris ...................................................................... 916
People v Harrison .................................................................. 862
People v Haskell .................................................................... 913
People v Hasson ..................................................................... 920
People v Havens .................................................................... 914
People v Hawkins .................................................................. 943
People v Hayes ....................................................................... 937
People v Haywood .................................................................. 910
People v Hearington .............................................................. 894
People v Heinle ...................................................................... 861
People v Hemp ....................................................................... 879
T
ABLE OF
C
ASES
R
EPORTED
lix
P
AGE
People v Henderson (Alfredrick) .......................................... 919
People v Henderson (Lawrence) ........................................... 896
People v Hendrick ................................................ 555
People v Henry (Anthony) .................................................... 861
People v Henry (Patrick) ...................................................... 851
People v Hernandez (Augustine) .......................................... 913
People v Hernandez (Pedro) ................................................. 939
People v Hicks (Dennis) ........................................................ 895
People v Hicks (Rodney) ....................................................... 869
People v Hill (Dwayne) ......................................................... 918
People v Hill (Joseph) ........................................................... 893
People v Hindman ................................................................. 875
People v Hirmuz .................................................................... 876
People v Hoaglin .................................................................... 920
People v Holland (Marlin) .................................................... 938
People v Holland (Robert) .................................................... 854
People v Holloway ................................................................. 920
People v Horten ..................................................................... 919
People v Houston (Charles) .................................................. 917
People v Houston (Michon) .................................................. 918
People v Hritz ........................................................................ 919
People v Hudgins ................................................................... 923
People v Hudson (Booker) .................................................... 862
People v Hudson (William) ................................................... 939
People v Huff ......................................................................... 914
People v Hughey .................................................................... 910
People v Hulce ....................................................................... 890
People v Hunt ........................................................................ 919
People v Hurless .................................................................... 943
People v Ish ............................................................................ 922
People v Jackson (Aaron) ...................................................... 941
People v Jackson (Anthony) ................................................. 941
People v Jackson (Christopher) ............................................ 918
People v Jackson (Nicholas) ................................................. 884
People v Jackson (Stanley) ................................................... 941
People v Jackson (Troy) ........................................................ 878
People v Jacobs ............................................................... 852, 922
People v Janoskey .................................................................. 896
People v Jeffries ..................................................................... 920
lx 472 M
ICHIGAN
R
EPORTS
P
AGE
People v Jenkins .................................................. 26
People v Jenkins .................................................................... 893
People v Jensen ..................................................................... 882
People v Jewell ...................................................................... 912
People v Johnson (Anthony) ................................................. 899
People v Johnson (Demetrius) .............................................. 916
People v Johnson (Derek) ..................................................... 907
People v Johnson (Dijon) ...................................................... 871
People v Johnson (Joseph) .................................................... 921
People v Johnson (Pierre) ..................................................... 909
People v Johnson (Ronald) ................................................... 910
People v Johnson (Stephen) ................................................. 894
People v Johnson (Terry) ...................................................... 915
People v Johnson (William) .................................................. 915
People v Jones (Anthony) ..................................................... 865
People v Jones (Brian) .......................................................... 894
People v Jones (Charlie) ....................................................... 865
People v Jones (Freeman) ..................................................... 937
People v Jones (Freezel) ....................................................... 893
People v Jones (Jennifer) ...................................................... 907
People v Jones (John) ........................................................... 911
People v Jones (Willie) .......................................................... 879
People v Justice ..................................................................... 940
People v Kaske ....................................................................... 919
People v Keane ....................................................................... 916
People v Keffer ....................................................................... 940
People v Keith ........................................................................ 868
People v Kelley ....................................................................... 914
People v Kelly (Curtis) .......................................................... 852
People v Kelly (Jerome) ........................................................ 920
People v Kelly (Jesse) ............................................................ 867
People v Kendricks ................................................................ 896
People v Kenyatta .................................................................. 940
People v Kessler ..................................................................... 920
People v Kidder ...................................................................... 921
People v Kimbrough .............................................................. 868
People v Kindred ................................................................... 880
People v King (Darrett) ........................................................ 866
People v King (David) ........................................................... 926
T
ABLE OF
C
ASES
R
EPORTED
lxi
P
AGE
People v King (James) ........................................................... 919
People v King (Ramon) ......................................................... 910
People v Kirksey .................................................................... 939
People v Koss ......................................................................... 921
People v Kramer .................................................................... 918
People v Krause ..................................................................... 912
People v Kruithof .................................................................. 916
People v Kucharski ................................................................ 938
People v Kujik ........................................................................ 933
People v Labelle ..................................................................... 881
People v Lackey ..................................................................... 940
People v Lahti-Peterson ........................................................ 867
People v Lancaster ................................................................ 894
People v Lawson (John) ........................................................ 895
People v Lawson (Tony) ........................................................ 894
People v Leach ....................................................................... 862
People v LeDuc ...................................................................... 880
People v Lee (Herbert) .......................................................... 862
People v Lee (Marvin) ........................................................... 862
People v Lewis (Roderick) ..................................................... 921
People v Lewis (William) ...................................................... 939
People v Liggins ..................................................................... 911
People v Link ......................................................................... 916
People v Little (Karl) ............................................................ 881
People v Little (Mary) ........................................................... 870
People v Littles ...................................................................... 915
People v Lonsby ..................................................................... 868
People v Lucero ..................................................................... 942
People v Lucey ....................................................................... 916
People v Lumsden ................................................................. 917
People v Lyons ....................................................................... 938
People v Mack ........................................................................ 866
People v Maddox .................................................................... 868
People v Madyun ................................................................... 862
People v Mahan (Dequan) .................................................... 868
People v Mahan (Tyrone) ..................................................... 877
People v Malik ....................................................................... 874
People v Mallory .................................................................... 911
People v Malone (Donald) ..................................................... 917
lxii 472 M
ICHIGAN
R
EPORTS
P
AGE
People v Malone (Jimmie) .................................................... 940
People v Manning (Antonio) ................................................. 877
People v Manning (Troy) ...................................................... 861
People v Mapp ........................................................................ 941
People v Marshall (Anton) .................................................... 869
People v Marshall (Bobby) .................................................... 915
People v Martin (Gregory) .................................................... 930
People v Martin (Jacob) ........................................................ 868
People v Martin (Reginald) ................................................... 878
People v Martin (Robert) ...................................................... 911
People v Masheli .................................................................... 877
People v Mathis ..................................................................... 878
People v May .......................................................................... 912
People v Mayberry ................................................................. 880
People v Mazer ...................................................................... 910
People v McAlkich ................................................................. 919
People v McCain .................................................................... 870
People v McCann No 1 .......................................................... 880
People v McCann No 2 .......................................................... 895
People v McCoy ...................................................................... 940
People v McCracken .............................................................. 895
People v McCray .................................................................... 871
People v McCreary ................................................................. 861
People v McCreery ................................................................. 916
People v McGee ...................................................................... 882
People v McKay ..................................................................... 863
People v McKechnie .............................................................. 867
People v McKee ...................................................................... 914
People v McMurry ................................................................. 919
People v McNeal .................................................................... 915
People v McPherson .............................................................. 882
People v Mcrae ....................................................................... 940
People v Mileski ..................................................................... 927
People v Miller (Frank) ......................................................... 915
People v Miller (Philip) ......................................................... 913
People v Mills ......................................................................... 867
People v Mims ........................................................................ 865
People v Minner ..................................................................... 919
People v Mitchell (James) ..................................................... 940
T
ABLE OF
C
ASES
R
EPORTED
lxiii
P
AGE
People v Mitchell (Nathaniel) ............................................... 885
People v Mitchell (Phillip) .................................................... 912
People v Mixon (Derek) ........................................................ 913
People v Mixon (Ronnie) ....................................................... 941
People v Mobley ..................................................................... 866
People v Moffit ....................................................................... 863
People v Molina ..................................................................... 907
People v Montague ................................................................ 862
People v Montgomery ............................................................ 922
People v Moore ...................................................................... 943
People v Moorer ..................................................................... 901
People v Morton ..................................................................... 940
People v Muehlenbein ........................................................... 861
People v Muhammad ............................................................. 877
People v Mullen ..................................................................... 867
People v Mullins (Charles) .................................................... 938
People v Mullins (Christopher) ............................................ 862
People v Munden ................................................................... 913
People v Murray .................................................................... 910
People v Myers (George) ....................................................... 852
People v Myers (Randy) ........................................................ 910
People v Nasser ..................................................................... 912
People v Neal (Cordall) ......................................................... 916
People v Neal (Samuel) ......................................................... 881
People v Neff .......................................................................... 863
People v Nelson ..................................................................... 911
People v Nett ......................................................................... 912
People v Nevels ...................................................................... 868
People v Newman .................................................................. 939
People v Ngem ....................................................................... 910
People v Norman ................................................................... 913
People v Northington ............................................................ 917
People v O’Neal ..................................................................... 915
People v Orick ........................................................................ 882
People v Osborne ................................................................... 896
People v Ossowski ................................................................. 915
People v Oswald ..................................................................... 918
People v Ouellette .................................................................. 914
People v Overton ................................................................... 861
lxiv 472 M
ICHIGAN
R
EPORTS
P
AGE
People v Owens (Andrew) ..................................................... 877
People v Owens (Scott) ......................................................... 865
People v Paige (Billy) ............................................................ 893
People v Paige (Brian) ........................................................... 865
People v Paramore ................................................................. 917
People v Parker (Frank) ....................................................... 894
People v Parker No 1 (Daryl) ............................................... 866
People v Parker No 2 (Daryl) ............................................... 867
People v Parks ....................................................................... 920
People v Parnell (James) ....................................................... 919
People v Parnell (Michael) .................................................... 878
People v Patterson (Joseph) ................................................. 867
People v Patterson (Randy) ............................................ 865, 922
People v Patton ...................................................................... 939
People v Payette .................................................................... 916
People v Payne ....................................................................... 894
People v Pelikan .................................................................... 919
People v Peoples .................................................................... 879
People v Perez (Jorge) ........................................................... 940
People v Perez (Santiago) ..................................................... 879
People v Pethoud ................................................................... 894
People v Phan ........................................................................ 866
People v Phipps ..................................................................... 879
People v Pibuldhanapatana .................................................. 867
People v Pickett ..................................................................... 865
People v Pines ........................................................................ 919
People v Pitts ......................................................................... 939
People v Pline ........................................................................ 893
People v Porch ....................................................................... 893
People v Porter (India) .......................................................... 909
People v Porter (Marshawn) ................................................. 866
People v Postell ...................................................................... 877
People v Potts ........................................................................ 862
People v Price ........................................................................ 938
People v Proch ....................................................................... 938
People v Pulliam .................................................................... 894
People v Qureshi ............................................................. 868, 909
People v Randolph ................................................................. 919
People v Ranes ....................................................................... 918
T
ABLE OF
C
ASES
R
EPORTED
lxv
P
AGE
People v Rappuhn .................................................................. 939
People v Ray .......................................................................... 867
People v Reed ......................................................................... 939
People v Reynolds .................................................................. 941
People v Rhea ........................................................................ 921
People v Richards (Jeffrey) ................................................... 863
People v Richards (Russell) .................................................. 938
People v Richardson .............................................................. 918
People v Richey ...................................................................... 912
People v Ritchie ..................................................................... 880
People v Roberts (Shaun) ..................................................... 908
People v Roberts (Thomas) ................................................... 878
People v Robinson (Edward) ................................................ 912
People v Robinson (Joseph) .................................................. 852
People v Robinson (Kevin) .................................................... 898
People v Robinson (Tracy) .................................................... 866
People v Rogers (Anthony) ................................................... 867
People v Rogers (Douglas) .................................................... 911
People v Rogers (Morris) ...................................................... 896
People v Rogers (Sean) ......................................................... 867
People v Rone ........................................................................ 920
People v Rossbach ................................................................. 852
People v Rounds .................................................................... 914
People v Ruelas ...................................................................... 870
People v Ruggles .................................................................... 937
People v Russell ..................................................................... 941
People v Ryan ........................................................................ 921
People v Sanborn ................................................................... 917
People v Sanders .................................................................... 914
People v Schauer ................................................................... 923
People v Schram .................................................................... 879
People v Schuil ....................................................................... 867
People v Schuster .................................................................. 939
People v Schwartz ................................................................. 940
People v Seeger ...................................................................... 919
People v Seever ...................................................................... 877
People v Sego ......................................................................... 913
People v Shackelford ............................................................. 907
People v Shaneberger ..................................................... 853, 897
lxvi 472 M
ICHIGAN
R
EPORTS
P
AGE
People v Shannon .................................................................. 895
People v Sharma .................................................................... 861
People v Sharpe ..................................................................... 912
People v Shelton .................................................................... 920
People v Shepherd ............................................... 343
People v Sheridan .................................................................. 895
People v Shulick .................................................................... 916
People v Simpson (Henry) .................................................... 879
People v Simpson (Ronald) ................................................... 914
People v Sims (Jerry) ............................................................ 913
People v Sims (Kirk) ............................................................. 918
People v Smith (Alexis) ......................................................... 920
People v Smith (Arthur) ....................................................... 861
People v Smith (Carl) ............................................................ 865
People v Smith (David) ......................................................... 918
People v Smith (Decarlose) ............................................ 924, 943
People v Smith (Gailan) ........................................................ 861
People v Smith (Gerald) ........................................................ 935
People v Smith (John) ........................................................... 938
People v Smith (Larome) ...................................................... 862
People v Smith (Michael) ...................................................... 915
People v Smith (Paul) ........................................................... 865
People v Smith (Rodney) ...................................................... 919
People v Smith (Scott) .......................................................... 906
People v Snyder ..................................................................... 937
People v Sok ........................................................................... 937
People v Soto .......................................................................... 917
People v Southward ............................................................... 895
People v Spencer .................................................................... 910
People v Stamps ..................................................................... 910
People v Stephan ................................................................... 870
People v Stevenson ................................................................ 862
People v Stewart .................................................. 624
People v Stewart (Eric) ......................................................... 927
People v Stewart (Wilburn) .................................................. 880
People v Stiff .......................................................................... 882
People v Strayhorn ................................................................ 878
People v Streeter ................................................................... 938
People v Sullivan ................................................................... 927
T
ABLE OF
C
ASES
R
EPORTED
lxvii
P
AGE
People v Sutton ...................................................................... 938
People v Swiatkowski ............................................................ 893
People v Sykes ....................................................................... 917
People v Talbert ..................................................................... 940
People v Talley ....................................................................... 879
People v Tansil ....................................................................... 867
People v Tatum ...................................................................... 861
People v Taylor ...................................................................... 921
People v Tepatti ..................................................................... 852
People v Terrell (Pietro) ................................................. 851, 922
People v Terrell (Vincent) ..................................................... 879
People v Terry ........................................................................ 915
People v Thomas (Darius) .................................................... 938
People v Thomas (Derry) ...................................................... 911
People v Thomas (Jameal) .................................................... 917
People v Thomas (Richard) ................................................... 913
People v Thomas (Samuel) ................................................... 895
People v Thomas (Shawn) .................................................... 918
People v Thompson (Cory) ................................................... 895
People v Thompson (Derico) ................................................. 869
People v Thompson (Eddie) .................................................. 863
People v Threatt .................................................................... 937
People v Thursam .................................................................. 867
People v Tincher .................................................................... 862
People v Tolefree ................................................................... 938
People v Tombs .................................................... 446
People v Travis ...................................................................... 917
People v Trice ........................................................................ 917
People v Truax ....................................................................... 891
People v Trudeau ................................................................... 868
People v Trygg ....................................................................... 918
People v Tumpkin ................................................................. 907
People v Turic ........................................................................ 895
People v Turner (Leonard) ................................................... 911
People v Turner (Reginald) .................................................. 918
People v Tyson ....................................................................... 879
People v Varney ..................................................................... 913
People v Vendeville ................................................................ 943
People v Villegas .................................................................... 917
lxviii 472 M
ICHIGAN
R
EPORTS
P
AGE
People v Virgil ........................................................................ 879
People v Vostrirancky ............................................................ 852
People v Walden (Antuan) ..................................................... 920
People v Walden (Kevin) ....................................................... 938
People v Walker (Alexander) ................................................ 911
People v Walker (Alvin) ........................................................ 928
People v Walker (Brendon) ................................................... 879
People v Walker (Kenneth) ................................................... 880
People v Walker (Robert) ...................................................... 910
People v Walker (Terrence) (In re Walker) ......................... 939
People v Wallace .................................................................... 867
People v Ware ........................................................................ 885
People v Warlick .................................................................... 878
People v Washington (Charlie) ............................................. 868
People v Washington (Malachi) ...................................... 866, 922
People v Watson ..................................................................... 909
People v Watts ....................................................................... 864
People v Welche ..................................................................... 918
People v Westcomb ................................................................ 853
People v White (Kala) ........................................................... 866
People v White (Lawrence) ................................................... 910
People v White (Michael) ...................................................... 916
People v White (Paul) ............................................................ 918
People v White (Robert) ........................................................ 939
People v White (Sean) ........................................................... 937
People v Whiteside ................................................................ 879
People v Whitley .................................................................... 878
People v Wicker ..................................................................... 913
People v Wiley ...................................................... 153
People v Wilkins .................................................................... 941
People v Williams ................................................. 308
People v Williams (Christine) ............................................... 896
People v Williams (Cleveland) .............................................. 872
People v Williams (Dwight) .................................................. 869
People v Williams (Frederick) .............................................. 862
People v Williams (James) .................................................... 919
People v Williams (Johnny) .................................................. 878
People v Williams (Lonnie) ................................................... 865
People v Williams (Rodney) .................................................. 937
T
ABLE OF
C
ASES
R
EPORTED
lxix
P
AGE
People v Williams (Shawntell) .............................................. 940
People v Williams (Tyree) ..................................................... 932
People v Willis (Barry) .......................................................... 894
People v Willis (Terry) .......................................................... 873
People v Willis (Titus) ........................................................... 895
People v Wilson (DeAndre) ................................................... 894
People v Wilson (Gail) ........................................................... 894
People v Wilson (Gladys) ...................................................... 927
People v Wilson (Mark) ......................................................... 940
People v Winston ................................................................... 919
People v Wood ........................................................................ 862
People v Woodruff .................................................................. 861
People v Woods ...................................................................... 914
People v Workman ................................................................. 917
People v Wright ..................................................................... 938
People v Wyatt ....................................................................... 914
People v Yarbrough ................................................................ 941
People v Yeager ...................................................................... 921
People v Young ..................................................... 130
People v Young ....................................................................... 937
People v Zarembski ............................................................... 937
People v Zsiros ....................................................................... 879
People of the City of Southgate v Cadle .............................. 896
People of the City of Southgate v Eggers ............................ 896
People of the Twp of Bloomfield v Lawrence ...................... 942
People of West Bloomfield Twp v Montgomery .................. 921
Peoples, People v ................................................................... 879
Perez, In re (Family Independence Agency v Sara
Vaughan) ........................................................................... 935
Perez, People v (Jorge) .......................................................... 940
Perez, People v (Santiago) .................................................... 879
Performance Abatement Services, Olivares v ..................... 941
Pethoud, People v .................................................................. 894
Petition for Foreclosure of Certain Parcels, In re (Jackson
Co Treasurer v Christie) .................................................. 903
Petrella, Manzo v ................................................................... 865
Phan, People v ....................................................................... 866
Phipps, People v .................................................................... 879
lxx 472 M
ICHIGAN
R
EPORTS
P
AGE
Phoenix Investment Holding Co, Inc v Nosan &
Silverman Homes, LLC .................................................... 853
Pibuldhanapatana, People v ................................................. 867
Pickett, People v .................................................................... 865
Pines, People v ....................................................................... 919
Pitoniak, Joliet v ................................................................... 908
Pitts, People v ........................................................................ 939
Pline, People v ....................................................................... 893
Pointe Dodge, Caza v ............................................................ 896
Pontiac Ceiling & Partition Co, LLC, Suliman v ................ 893
Porch, People v ...................................................................... 893
Pornpichit, Devault Estate v ................................................ 883
Porter, People v (India) ......................................................... 909
Porter, People v (Marshawn) ................................................ 866
Postell, People v ..................................................................... 877
Potts, People v ....................................................................... 862
Price, People v ....................................................................... 938
Prime Ins Syndicate, Inc, Melson v (In re Certified
Questions From the United States Court of Appeals
for the Sixth Circuit) ........................................................ 1225
Proch, People v ...................................................................... 938
Professional Code Inspections of Michigan, Inc,
Nguyen v ........................................................................... 885
Pruchno v Pruchno ............................................................... 881
Public Service Comm, Ameritech Michigan v ..................... 890
Public Service Comm, Attorney General v .......................... 882
Public Service Comm No 1, Consumers Energy Co v ........ 897
Public Service Comm No 2, Consumers Energy Co v ........ 937
Public Service Comm No 1, Detroit Edison Co v ............... 897
Public Service Comm No 2, Detroit Edison Co v ............... 937
Public Service Comm No 1, Michigan Electric
Cooperative Ass’n v .......................................................... 897
Public Service Comm No 2, Michigan Electric
Cooperative Ass’n v .......................................................... 937
Public Service Comm, Verizon North, Inc v ....................... 886
Pulliam, People v ................................................................... 894
Q
Quest Financial Services, Inc v Kitts .................................. 878
T
ABLE OF
C
ASES
R
EPORTED
lxxi
P
AGE
Quick-Sav Food Stores, Ltd, Knecht v ................................. 868
Qureshi, People v ............................................................ 868, 909
R
RVP Development Corp v Furness Golf Construction
Inc ...................................................................................... 894
Radeljak v DaimlerChrysler Corp ........................................ 924
Rahman, Harris v .................................................................. 892
Randolph, People v ................................................................ 919
Ranes, People v ...................................................................... 918
Rappuhn, People v ................................................................. 939
Rau v Leidlein (In re VanConett Estate) ............................. 886
Ravenna Castings Center v R avenna Twp .......................... 907
Ravenna Twp, Ravenna Castings Center v ......................... 907
Rawls v Hutzel Hosp ............................................................. 937
Ray, People v .......................................................................... 867
Reed, Home Owners Ins Co v .............................................. 877
Reed, People v ........................................................................ 939
Reid v Cavataio ...................................................................... 871
Remsing, Windsor Charter Twp v ....................................... 938
Reynolds, People v ................................................................. 941
Rhea, People v ....................................................................... 921
Ribitwer & Associates, PC (Deborah N), Berman v ........... 914
Richards, Becker v ................................................................. 871
Richards, People v (Jeffrey) .................................................. 863
Richards, People v (Russell) ................................................. 938
Richardson, People v ............................................................. 918
Richey, People v ..................................................................... 912
Rightsource Group, LLC, Graham v .................................... 896
Riley v Holland Community Hosp ....................................... 908
Ritchie, People v .................................................................... 880
Roberts v Ford Motor Co ...................................................... 895
Roberts, People v (Shaun) .................................................... 908
Roberts, People v (Thomas) .................................................. 878
Robinson, People v (Edward) ............................................... 912
Robinson, People v (Joseph) ................................................. 852
Robinson, People v (Kevin) ................................................... 898
Robinson, People v (Tracy) ................................................... 866
Rocca v Children’s Hosp of Michigan .................................. 880
lxxii 472 M
ICHIGAN
R
EPORTS
P
AGE
Rogers, In re (Family Independence Agency v
Aguirre) ....................................................................... 868, 884
Rogers, People v (Anthony) .................................................. 867
Rogers, People v (Douglas) ................................................... 911
Rogers, People v (Morris) ..................................................... 896
Rogers, People v (Sean) ........................................................ 867
Rone, People v ....................................................................... 920
Rorke v Savoy Energy, LP .................................................... 865
Rose v Durling ....................................................................... 894
Rosewood Living Center v Bureau of Health Systems ...... 916
Ross, Elgrably v ..................................................................... 896
Rossbach, People v ................................................................ 852
Rounds, People v ................................................................... 914
Royal Oak (City of), Stone v ................................................. 940
Rubright, Lindahl v ............................................................... 913
Rudd v City of Muskegon ..................................................... 914
Ruelas, People v ..................................................................... 870
Ruggles, People v ................................................................... 937
Rundell, Hastings Mut Ins Co v ........................................... 880
Russell, People v .................................................................... 941
Ryan, People v ....................................................................... 921
S
S B & B Transportation Unlimited, Inc, Dep’t of
Treasury v ......................................................................... 915
SHR Ltd Partnership v Shell Oil Co ................................... 863
Saginaw School Dist v Gaertner .......................................... 867
Sahr v Wal-Mart Stores, Inc ................................................. 909
St Clair Shores (City of), Stanley Building Co v ................ 893
St Joseph Mercy Hosp v Thomas .................................. 867, 922
Sanborn, People v .................................................................. 917
Sanders, People v ................................................................... 914
Sanilac Co Parks Comm v Lexington Twp .......................... 866
Sarr v Scott A Smith, PC ..................................................... 881
Saugatuck Twp, Wolters Realty, Ltd v ................................ 908
Savoy Energy, LP, Rorke v .................................................... 865
Sawyer v Hogan (In re Hogan Trust No 2) ........................ 878
Schauer, People v ................................................................... 923
Schmitz v Citizens Ins Co of America ................................. 853
T
ABLE OF
C
ASES
R
EPORTED
lxxiii
P
AGE
Schram, People v ................................................................... 879
Schuil, People v ...................................................................... 867
Schuster, People v .................................................................. 939
Schwartz, People v ................................................................ 940
Scott A Smith, PC, Sarr v ..................................................... 881
Searfoss v Christman Co, Inc ............................................... 940
Secretary of State, Casco Twp v ......................... 566
Secretary of State, Fillmore Twp v .................... 566
Seeger, People v ..................................................................... 919
Seever, People v ..................................................................... 877
Sego, People v ........................................................................ 913
Shackelford, People v ............................................................ 907
Shaneberger, People v ..................................................... 853, 897
Shannon, People v ................................................................. 895
Sharma, People v ................................................................... 861
Sharpe, People v .................................................................... 912
Shell Oil Co, SHR Ltd Partnership v .................................. 863
Shelton, People v ................................................................... 920
Shepherd, People v .............................................. 343
Sheridan, People v ................................................................. 895
Shiawassee Co v Bambi Lake Ass’n (In re Lake Level for
Bambi Lake) ...................................................................... 939
Shulick, People v ................................................................... 916
Shuman v Patterson (In re Patterson) ................................ 904
Simonian, Carpenter v .......................................................... 893
Simpson, People v (Henry) ................................................... 879
Simpson, People v (Ronald) .................................................. 914
Sims, People v (Jerry) ........................................................... 913
Sims, People v (Kirk) ............................................................ 918
Sinacola v Leland Twp .......................................................... 886
Skonieczny v Skonieczny ...................................................... 873
Slater v DeWitt Charter Twp ........................................ 877, 942
Smith v Akerlind ................................................................... 870
Smith v Coleman ................................................................... 866
Smith v Community Emergency Medical Service .............. 863
Smith, People v (Alexis) ........................................................ 920
Smith, People v (Arthur) ...................................................... 861
Smith, People v (Carl) ........................................................... 865
lxxiv 472 M
ICHIGAN
R
EPORTS
P
AGE
Smith, People v (David) ........................................................ 918
Smith, People v (Decarlose) ........................................... 924, 943
Smith, People v (Gailan) ....................................................... 861
Smith, People v (Gerald) ....................................................... 935
Smith, People v (John) .......................................................... 938
Smith, People v (Larome) ..................................................... 862
Smith, People v (Michael) ..................................................... 915
Smith, People v (Paul) .......................................................... 865
Smith, People v (Rodney) ..................................................... 919
Smith, People v (Scott) ......................................................... 906
Smith, PC (Scott A), Sarr v .................................................. 881
Snyder, People v ..................................................................... 937
Sohn v US Air, Inc ................................................................. 895
Sok, People v .......................................................................... 937
Sorkowitz v Lakritz, Wissbrun & Associates, PC ............... 898
Soto v Dep’t of Corrections .................................................. 866
Soto, People v ......................................................................... 917
Southfield City Clerk, Korn v ............................................... 867
Southward, People v .............................................................. 895
Spencer, People v ................................................................... 910
Spiegel v Ford Motor Co ....................................................... 878
Sporleder, Wang v .................................................................. 869
Stamps, People v .................................................................... 910
Stanford v City of Dearborn ................................................. 879
Stanley Building Co v City of St Clair Shores .................... 893
State Farm Mut Automobile Ins Co, Griffith v .. 521
State Farm Mut Automobile Ins Co, Jackson v .................. 942
State of Michigan, Eyde v ..................................................... 868
State of Michigan, Michigan State Police Troopers
Ass’n v ............................................................................ 914
Stephan, People v .................................................................. 870
Stevenson, People v ............................................................... 862
Stewart, People v ................................................. 624
Stewart, People v (Eric) ........................................................ 927
Stewart, People v (Wilburn) ................................................. 880
Stiff, People v ......................................................................... 882
Stokan v Huron Co ............................................................... 871
Stone v City of Royal Oak .................................................... 940
Straits Correctional Facility Warden, Bornschein v ........... 913
T
ABLE OF
C
ASES
R
EPORTED
lxxv
P
AGE
Strat, Wold Architects & Engineers, Inc v .......................... 908
Strayhorn, People v ............................................................... 878
Streeter, People v ................................................................... 938
Streets, Family Independence Agency v (In re Mitchell) ... 877
Stubbs, Vercnocke v .............................................................. 893
Stucki, Gillette v .................................................................... 870
Studier v Michigan Public School Employees’
Retirement Bd .................................................. 642
Suliman v Pontiac Ceiling & Partition Co, LLC ................. 893
Sullivan, People v .................................................................. 927
Sundell v Nationwide Ins Co ................................................ 868
Sutton v First Federal of Michigan ............................... 879, 942
Sutton, People v ..................................................................... 938
Swanson Funeral Homes, Inc, Little v ................................ 922
Sweebe v Sweebe Estate ....................................................... 881
Sweebe Estate, Sweebe v ...................................................... 881
Swiatkowski, People v ........................................................... 893
Swilley v General Motors Corp ............................................ 895
Sykes, People v ...................................................................... 917
Symanzik, Bragan v .............................................................. 926
T
Talbert, People v .................................................................... 940
Talley, People v ...................................................................... 879
Tansil, People v ...................................................................... 867
Target Construction, Inc, 10 & Scotia Express, LLC v ...... 867
Tarlea v Crabtree (In re Tarlea Estate) .............................. 891
Tarlea Estate, In re (Tarlea v Crabtree) ............................. 891
Tate v Botsford General Hosp ....................................... 851, 904
Tatum, People v ..................................................................... 861
Taylor, People v ...................................................................... 921
Taylor (City of), Community Bowling Centers v ................ 912
Tejura, Terrasi v .................................................................... 927
10 & Scotia Express, LLC v Target Construction, Inc ....... 867
Tepatti, People v .................................................................... 852
Terrasi v Haq ......................................................................... 927
Terrasi v Tejura ..................................................................... 927
Terrasi v Univ of Michigan Bd of Regents .......................... 927
Terrell, People v (Pietro) ................................................ 851, 922
lxxvi 472 M
ICHIGAN
R
EPORTS
P
AGE
Terrell, People v (Vincent) .................................................... 879
Terry, People v ....................................................................... 915
Thacker, In re (Family Independence Agency v Tammy
Brown) ............................................................................... 871
Thomas, People v (Darius) ................................................... 938
Thomas, People v (Derry) ..................................................... 911
Thomas, People v (Jameal) ................................................... 917
Thomas, People v (Richard) .................................................. 913
Thomas, People v (Samuel) .................................................. 895
Thomas, People v (Shawn) ................................................... 918
Thomas, St Joseph Mercy Hosp v ................................. 867, 922
Thompson, People v (Cory) .................................................. 895
Thompson, People v (Derico) ................................................ 869
Thompson, People v (Eddie) ................................................. 863
Threatt, People v ................................................................... 937
Thursam, People v ................................................................. 867
Tincher, People v ................................................................... 862
Tirado v Ford Motor Co ........................................................ 915
Tolefree, People v .................................................................. 938
Tombs, People v ................................................... 446
Tramel v Continental Ins Co ................................................ 942
Transportation (Dep’t of) v Landstar Ligon, Inc ............... 894
Transportation (Dep’t of), Lambert v .................................. 885
Transportation (Dep’t of), McCreary v ................................ 885
Transportation (Dep’t of), Miles v ....................................... 885
Transportation (Dep’t of), Wolfe v ....................................... 885
Travelers Ins Co, McFarland v ............................................. 861
Travis, People v ..................................................................... 917
Treasury (Dep’t of) v Brannon (Rosa) ................................. 915
Treasury (Dep’t of) v Brannon (Siberia) ............................. 915
Treasury (Dep’t of) v Brannon (Troy) ................................. 915
Treasury (Dep’t of), Hojeije v ............................................... 894
Treasury (Dep’t of), Newark Morning Ledger Co v ........... 942
Treasury (Dep’t of)vSB&BTransportation Unlimited,
Inc ...................................................................................... 915
Trice, People v ....................................................................... 917
Truax, People v ...................................................................... 891
Trudeau, People v .................................................................. 868
Trygg, People v ...................................................................... 918
T
ABLE OF
C
ASES
R
EPORTED
lxxvii
P
AGE
Tucker, Family Independence Agency v (In re Tucker) ..... 863
Tucker, In re (Family Independence Agency v Tucker) ..... 863
Tumpkin, People v ................................................................ 907
Turic, People v ....................................................................... 895
Turner, People v (Leonard) ................................................... 911
Turner, People v (Reginald) .................................................. 918
Tyson, People v ...................................................................... 879
U
UAW-Ford Nat’l Ed Development & Training Center
v City of Detroit ................................................................ 854
US Air, Inc, Sohn v ................................................................ 895
Unger, Family Independence Agency v (In re Unger) ........ 871
Unger, In re (Family Independence Agency v Unger) ........ 871
Univ of Michigan Bd of Regents, Terrasi v ......................... 927
Urbancic, Lentini v ............................................................... 885
Ursery, Option One Mortgage Corp v .................................. 881
V
Van Beeste, Mounts v ............................................................ 937
VanConett Estate, In re (Rau v Leidlein) ............................ 886
Vargo v Ford Motor Co .......................................................... 941
Varney, People v ..................................................................... 913
Vasquez v Vasquez .......................................................... 861, 922
Vaughan (Rood), Family Independence Agency v (In re
Vaughan) .......................................................................... 935
Vaughan (Sara), Family Independence Agency v (In re
Perez) ................................................................................ 935
Vaughan, In re (Family Independence Agency v Rood
Vaughan) .......................................................................... 935
Vaughn, McDonald v ............................................................. 901
Vendeville, People v ............................................................... 943
Vercnocke v Stubbs ............................................................... 893
Verizon North, Inc v Public Service Comm ........................ 886
Vettraino, Barnes v ......................................................... 883, 942
Vick v Dep’t of Consumer & Industry Services .................. 907
Villegas, People v ................................................................... 917
Virgil, People v ....................................................................... 879
lxxviii 472 M
ICHIGAN
R
EPORTS
P
AGE
Vostrirancky, People v ........................................................... 852
W
Wal-Mart Stores, Inc, Donoho v ........................................... 944
Wal-Mart Stores, Inc, Sahr v ................................................ 909
Walden, People v (Antuan) ................................................... 920
Walden, People v (Kevin) ...................................................... 938
Walker, In re (People v Terrence Walker) ........................... 939
Walker, People v (Alexander) ................................................ 911
Walker, People v (Alvin) ........................................................ 928
Walker, People v (Brendon) .................................................. 879
Walker, People v (Kenneth) .................................................. 880
Walker, People v (Robert) ..................................................... 910
Walker, People v (Terrence) (In re Walker) ......................... 939
Wallace, People v ................................................................... 867
Walno v Azmeh ...................................................................... 938
Wang v Sporleder .................................................................. 869
Ward v Consolidated Rail Corp .......................... 77
Warda v Flushing City Council .......................... 326
Ware, People v ....................................................................... 885
Warlick, People v ................................................................... 878
Warren (City of), Gesing v .................................................... 861
Warren, Grievance Administrator v ..................................... 1212
Warren Regency, GP, LLC, Ostroth v ................................... 898
Warthan, Family Independence Agency v (In re Dilley) .... 876
Washington, People v (Charlie) ............................................ 868
Washington, People v (Malachi) ..................................... 866, 922
Washtenaw Co Clerk, Families Against Incinerator
Risk v .............................................................................. 891
Waste Management, Inc (After Remand),
Cain v ............................................................. 236
Waste Management of Michigan, Inc, Koopmans v ............ 866
Watson, People v .................................................................... 909
Watts, People v ...................................................................... 864
Wayne Circuit Judge, Dunlap v ..................................... 867, 922
Webb, Nault v ........................................................................ 943
Welche, People v .................................................................... 918
Werth v Dep’t of Corrections ................................................ 879
T
ABLE OF
C
ASES
R
EPORTED
lxxix
P
AGE
Westcomb, People v ............................................................... 853
Westfield Ins Co, Mowrey v .................................................. 895
Wexford Medical Group v City of Cadillac .......................... 899
White, People v (Kala) .......................................................... 866
White, People v (Lawrence) .................................................. 910
White, People v (Michael) ..................................................... 916
White, People v (Paul) ........................................................... 918
White, People v (Robert) ....................................................... 939
White, People v (Sean) .......................................................... 937
Whiteside, People v ............................................................... 879
Whitley, People v ................................................................... 878
Wicker, People v ..................................................................... 913
Wilcox v Ford Motor Co ........................................................ 941
Wiley, People v ..................................................... 153
Wilkins, People v ................................................................... 941
Willard, Kosmalski v ............................................................. 937
William Beaumont Hosp, Dively v ....................................... 906
William Beaumont Hosp v Garden City Osteopathic
Hosp ................................................................................... 893
William Beaumont Hosp, LaPorte v .................................... 892
Williams, People v ................................................ 308
Williams, People v (Christine) .............................................. 896
Williams, People v (Cleveland) ............................................. 872
Williams, People v (Dwight) ................................................. 869
Williams, People v (Frederick) ............................................. 862
Williams, People v (James) ................................................... 919
Williams, People v (Johnny) ................................................. 878
Williams, People v (Lonnie) .................................................. 865
Williams, People v (Rodney) ................................................. 937
Williams, People v (Shawntell) ............................................. 940
Williams, People v (Tyree) .................................................... 932
Willis, People v (Barry) ......................................................... 894
Willis, People v (Terry) ......................................................... 873
Willis, People v (Titus) .......................................................... 895
Wilson v Alpena Co Rd Comm ............................................. 899
Wilson, People v (DeAndre) .................................................. 894
Wilson, People v (Gail) .......................................................... 894
Wilson, People v (Gladys) ..................................................... 927
Wilson, People v (Mark) ........................................................ 940
lxxx 472 M
ICHIGAN
R
EPORTS
P
AGE
Winalis v Khattar ............................................................ 862, 897
Windsor Charter Twp v Azzawi ........................................... 863
Windsor Charter Twp v Remsing ........................................ 938
Winston, People v .................................................................. 919
Wintersmith v Michigan Federal Credit Union .................. 896
Wold Architects & Engineers, Inc v Strat ........................... 908
Wolf v General Motors Corp ................................................. 854
Wolfe v Dep’t of Transportation .......................................... 885
Wolters Realty, Ltd v Saugatuck Twp ................................. 908
Wood, People v ....................................................................... 862
Woodruff, People v ................................................................. 861
Woods, People v ..................................................................... 914
Workman, People v ................................................................ 917
Wright v Dep’t of Corrections .............................................. 938
Wright, People v .................................................................... 938
Wyatt v Oakwood Hosp & Medical Centers ........................ 929
Wyatt, People v ...................................................................... 914
Y
Yarbrough, People v ............................................................... 941
Yeager, People v ..................................................................... 921
Yellow Freight System, Inc, Barcewski v ............................ 896
Young, People v .................................................... 130
Young, People v ...................................................................... 937
Yousif v Mona ........................................................................ 900
Ypsilanti Charter Twp v Miller ............................................ 861
Z
Zameck, Grievance Administrator v .................................... 1203
Zammit v City of New Baltimore Police Dep’t ................... 895
Zandarski, Family Independence Agency v (In re
Zandarski) ......................................................................... 898
Zandarski, In re (Family Independence Agency v
Zandarski) ......................................................................... 898
Zarembski, People v .............................................................. 937
Zsigo v Hurley Medical Center ............................................. 899
Zsiros, People v ...................................................................... 879
T
ABLE OF
C
ASES
R
EPORTED
lxxxi
TABLE OF SPECIAL ORDERS NOT
RELATED TO SPECIFIC CASES
P
AGE
P
ROPOSED
A
MENDMENTS OF
M
ICHIGAN
C
OURT
R
ULES
MCR 3.211 ...........................................................................1204
MCR 3.215 ...........................................................................1202
MCR 3.925 ...........................................................................1215
MCR 4.101 ...........................................................................1224
MCR 5.144 ......................................................................... 1255
MCR 5.203, 5.207, 5.302.................................................... 1256
MCR 5.307, 5.404, 5.409.................................................... 1257
MCR 6.412 ...........................................................................1218
MCR 7.205 ...........................................................................1216
MCR 8.103, 8.107 ................................................................1248
MCR 8.108 ...........................................................................1210
MCR 8.110 ...........................................................................1249
MCR 8.123 ...........................................................................1222
MCR 9.124 ...........................................................................1205
MCR 9.205 ...........................................................................1219
MCR 9.221 ...........................................................................1251
MCR 9.223, 9.224 ................................................................1213
P
ROPOSED
A
MENDMENT OF
M
ICHIGAN
R
ULES OF
P
ROFESSIONAL
C
ONDUCT
MRPC 1.15...........................................................................1252
M
ISCELLANEOUS
Proposed Michigan Standards for Imposing Lawyer
Sanctions............................................................................1201
Proposed Adoption of New Michigan Rules of
Professional Conduct ........................................................1201
lxxxii
TABLE OF ADMINISTRATIVE ORDERS
AND RULES ADOPTED
A
DMINISTRATIVE
O
RDER
No. 2005-1 .................................................................................... lxxxv
A
DMINISTRATIVE
O
RDER
R
ESCINDED
No. 1999-2 ................................................................................... lxxxvi
R
ULES
A
DOPTED
M
ICHIGAN
C
OURT
R
ULES OF
1985
MCR 2.504.......................................................................................... ci
MCR 3.215.................................................................................. lxxxvii
MCR 5.784.................................................................................... xcviii
MCR 6.425...................................................................................... xciii
MCR 6.445...................................................................................... xcvi
MCR 7.210...................................................................................... xciii
MCR 7.211....................................................................................... cvii
MCR 7.217........................................................................................... c
MCR 7.302......................................................................................... cii
MCR 8.119...................................................................................... xciv
MCR 9.221........................................................................................ ciii
M
ICHIGAN
R
ULES OF
P
ROFESSIONAL
C
ONDUCT
Rule 1.15........................................................................................... cix
R
ULES OF THE
S
TATE
B
AR OF
M
ICHIGAN
Rule 2............................................................................................... cxii
Rule 5.............................................................................................. cxiii
Rule 6.............................................................................................. cxiv
lxxxiii
R
ULES
R
ETAINED
M
ICHIGAN
C
OURT
R
ULES OF
1985
MCR 5.784.......................................................................................... ci
MCR 7.203, 7.204.......................................................................... xcvii
MCR 9.124, 9.126......................................................................... xcviii
MCR 9.216.......................................................................................... ci
lxxxiv 472 M
ICHIGAN
R
EPORTS
ADMINISTRATIVE ORDER
No. 2005-1
A
DOPTION OF
C
ONCURRENT
J
URISDICTION
P
LANS
FOR THE 41ST
C
IRCUIT
C
OURT, THE 95B
D
ISTRICT
C
OURT, AND THE
I
RON
C
OUNTY
P
ROBATE
C
OURT,
AND FOR THE 32ND
C
IRCUIT
C
OURT AND THE
O
NTONAGON
C
OUNTY
P
ROBATE
C
OURT
Entered May 17, 2005, effective September 1, 2005 (File No. 2004-04)
—R
EPORTER
.
Administrative Order No. 2003-1 and MCL 600.401
et seq. authorize Michigan trial courts to adopt concur-
rent jurisdiction plans within a county or judicial cir-
cuit, subject to approval of this Court.
The Court hereby approves adoption of the following
concurrent jurisdiction plans effective September 1,
2005:
41st Circuit Court, 95B District Court, and
Iron County Probate Court
32nd Circuit Court and Ontonagon County
Probate Court
The plans shall remain on file with the state court
administrator.
Amendments of concurrent jurisdiction plans may be
implemented by local administrative order pursuant to
lxxxv
MCR 8.112. Plan amendments shall conform to the
requirements of Administrative Order No. 2003-1 and
MCL 600.401 et seq.
It is further ordered that Administrative Order No.
1999-2 is rescinded effective September 1, 2005.
M
ARKMAN
,J.(concurring). I wish to incorporate by
reference the views that I expressed in concurring with
Administrative Order No. 2004-2.
lxxxvi 472 M
ICHIGAN
R
EPORTS
AMENDMENTS OF MICHIGAN
COURT RULES OF 1985
Adopted February 1, 2005, effective May 1, 2005 (File No. 2004-40)—
R
EPORTER
.
[The present language is repealed and
replaced by the following language unless
otherwise indicated below:]
R
ULE
3.215. D
OMESTIC
R
ELATIONS
R
EFEREES
.
(A) Qualifications of Referees. A referee appointed
pursuant to MCL 552.507(1) must be a member in good
standing of the State Bar of Michigan. A non-attorney
friend of the court who was serving as a referee when
this rule took effect on May 1, 1993, may continue to
serve.
(B) Referrals to the Referee.
(1) The chief judge may, by administrative order,
direct that specified types of domestic relations motions
be heard initially by a referee.
(2) To the extent allowed by law, the judge to whom a
domestic relations action is assigned may refer other
motions in that action to a referee
(a) on written stipulation of the parties,
(b) on a party’s motion, or
(c) on the judge’s own initiative.
(3) In domestic relations matters, the judge to whom
an action is assigned, or the chief judge by administra-
lxxxvii
tive order, may authorize referees to conduct settlement
conferences and, subject to judicial review, scheduling
conferences.
(C) Scheduling of the Referee Hearing.
(1) Within 14 days after receiving a motion referred
under subrule (B)(1) or (B)(2), the referee must arrange
for service of a notice scheduling a referee hearing on
the attorneys for the parties, or on the parties if they
are not represented by counsel. The notice of hearing
must clearly state that the matter will be heard by a
referee.
(2) The referee may adjourn a hearing for good cause
without preparing a recommendation for an order,
except that if the adjournment is subject to any terms or
conditions, the referee may only prepare a recommen-
dation for an adjournment order to be signed by a judge.
(D) Conduct of Referee Hearings.
(1) The Michigan Rules of Evidence apply to referee
hearings.
(2) A referee must provide the parties with notice of
the right to request a judicial hearing by giving
(a) oral notice during the hearing, and
(b) written notice in the recommendation for an
order.
(3) Testimony must be taken in person, except that,
for good cause, a referee may allow testimony to be
taken by telephone or other electronically reliable
means.
(4) An electronic or stenographic record must be kept
of all hearings.
(E) Posthearing Procedures.
(1) Within 21 days after a hearing, the referee must
either make a statement of findings on the record or
lxxxviii 472 M
ICHIGAN
R
EPORTS
submit a written, signed report containing a summary
of testimony and a statement of findings. In either
event, the referee must make a recommendation for an
order and arrange for it to be submitted to the court and
the attorneys for the parties, or the parties if they are
not represented by counsel. A proof of service must be
filed with the court.
(a) The referee must find facts specially and state
separately the law the referee applied. Brief, definite,
and pertinent findings and conclusions on the contested
matters are sufficient, without overelaboration of detail
or particularization of facts.
(b) The referee’s recommended order must include:
(i) a signature line for the court to indicate its
approval of the referee’s recommended order;
(ii) notice that if the recommended order is approved
by the court and no written objection is filed with the
court clerk within 21 days after the recommended order
is served, the recommended order will become the final
order;
(iii) notice advising the parties of any interim effect
the recommended order may have; and
(iv) prominent notice of all available methods for
obtaining a judicial hearing.
(c) If the court approves the referee’s recommended
order, the recommended order must be served within 7
days of approval, or within 3 days of approval if the
recommended order is given interim effect, and a proof
of service must be filed with the court. If the recom-
mendation is approved by the court and no written
objection is filed with the court clerk within 21 days
after service, the recommended order will become a
final order.
M
ICHIGAN
C
OURT
R
ULES OF
1985 lxxxix
(2) If the hearing concerns income withholding, the
referee must arrange for a recommended order to be
submitted to the court forthwith. If the recommended
order is approved by the court, it must be given imme-
diate effect pursuant to MCL 552.607(4).
(3) A party may obtain a judicial hearing on any
matter that has been the subject of a referee hearing and
that resulted in a statement of findings and a recom-
mended order by filing a written objection and notice of
hearing within 21 days after the referee’s recommenda-
tion for an order is served on the attorneys for the
parties, or the parties if they are not represented by
counsel. The objection must include a clear and concise
statement of the specific findings or application of law to
which an objection is made. Objections regarding the
accuracy or completeness of the recommendation must
state with specificity the inaccuracy or omission.
(4) The party who requests a judicial hearing must
serve the objection and notice of hearing on the oppos-
ing party or counsel in the manner provided in MCR
2.119(C).
(5) A circuit court may, by local administrative order,
establish additional methods for obtaining a judicial
hearing.
(6) The court may hear a party’s objection to the
referee’s recommendation for an order on the same day
as the referee hearing, provided that the notice schedul-
ing the referee hearing advises the parties that a same-
day judicial hearing will be available and the parties have
the option of refusing a same-day hearing if they have
not yet decided whether they will object to the referee’s
recommendation for an order.
xc 472 M
ICHIGAN
R
EPORTS
(7) The parties may waive their right to object to the
referee’s recommendation for an order by consenting in
writing to the immediate entry of the recommended
order.
(F) Judicial Hearings.
(1) The judicial hearing must be held within 21 days
after the written objection is filed, unless time is
extended by the court for good cause.
(2) To the extent allowed by law, the court may
conduct the judicial hearing by review of the record of
the referee hearing, but the court must allow the
parties to present live evidence at the judicial hearing.
The court may, in its discretion:
(a) prohibit a party from presenting evidence on
findings of fact to which no objection was filed;
(b) determine that the referee’s finding was conclu-
sive as to a fact to which no objection was filed;
(c) prohibit a party from introducing new evidence or
calling new witnesses unless there is an adequate
showing that the evidence was not available at the
referee hearing;
(d) impose any other reasonable restrictions and
conditions to conserve the resources of the parties and
the court.
(3) If the court determines that an objection is
frivolous or has been interposed for the purpose of
delay, the court may assess reasonable costs and attor-
ney fees.
(G) Interim Effect for Referee’s Recommendation for
an Order.
(1) Except as limited by subrules (G)(2) and (G)(3),
the court may, by an administrative order or by an order
in the case, provide that the referee’s recommended
M
ICHIGAN
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OURT
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ULES OF
1985 xci
order will take effect on an interim basis pending a
judicial hearing. The court must provide notice that the
referee’s recommended order will be an interim order
by including that notice under a separate heading in the
referee’s recommended order, or by an order adopting
the referee’s recommended order as an interim order.
(2) The court may not give interim effect to a
referee’s recommendation for any of the following or-
ders:
(a) An order for incarceration;
(b) An order for forfeiture of any property;
(c) An order imposing costs, fines, or other sanctions.
(3) The court may not, by administrative order, give
interim effect to a referee’s recommendation for the
following types of orders:
(a) An order under subrule (G)(2);
(b) An order that changes a child’s custody;
(c) An order that changes a child’s domicile;
(d) An order that would render subsequent judicial
consideration of the matter moot.
Staff Comment: The February 1, 2005, effective May 1, 2005, amend-
ments implement 2004 PA 210, which redefines “de novo hearings” and
allows trial courts to give interim effect to a referee’s recommended order
pending a hearing de novo pursuant to Michigan Court Rules.
The staff comment is not an authoritative construction by the Court.
Adopted February 1, 2005, effective May 1, 2005 (File No. 2003-65)—
R
EPORTER
.
[The present language is repealed and
replaced by the following language unless
otherwise indicated below:]
xcii 472 M
ICHIGAN
R
EPORTS
R
ULE
6.425. S
ENTENCING
;A
PPOINTMENT OF
A
PPELLATE
C
OUNSEL
.
(A)-(E) [Unchanged.]
(F) Appointment of Lawyer; Trial Court Responsi-
bilities in Connection With Appeal.
(1) [Unchanged.]
(2) Order to Prepare Transcript. The appointment
order also must
(a) direct the court reporter to prepare and file,
within the time limits specified in MCR 7.210,
(i) the trial or plea proceeding transcript,
(ii) the sentencing transcript, and
(iii) such transcripts of other proceedings, not previ-
ously transcribed, that the court directs or the parties
request, and
(b) provide for the payment of the reporter’s fees.
The court must promptly serve a copy of the order on
the prosecutor, the defendant, the appointed lawyer, the
court reporter, and the Michigan Appellate Assigned
Counsel System. If the appointed lawyer timely re-
quests additional transcripts, the trial court shall order
such transcripts within 14 days after receiving the
request.
(3) [Unchanged.]
R
ULE
7.210. R
ECORD
ON A
PPEAL
.
(A) [Unchanged.]
(B) Transcript.
(1)-(2) [Unchanged.]
(3) Duties of Court Reporter or Recorder.
(a) Certificate. Within 7 days after a transcript is
ordered by a party or the court, the court reporter or
recorder shall furnish a certificate stating:
M
ICHIGAN
C
OURT
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ULES OF
1985 xciii
(i) that the transcript has been ordered, that pay-
ment for the transcript has been made or secured, that
it will be filed as soon as possible or has already been
filed, and the estimated number of pages for each of the
proceedings requested;
(ii) as to each proceeding requested, whether the
court reporter or recorder filing the certificate recorded
the proceeding; and if not,
(iii) the name and certification number of the court
reporter or recorder responsible for the transcript of
that proceeding.
(b)-(g) [Unchanged.]
(C)-(I) [Unchanged.]
R
ULE
8.119. C
OURT
R
ECORDS AND
R
EPORTS
;D
UTIES OF
C
LERKS
.
(A)-(C) [Unchanged.]
(D) Records Kept by the Clerk. [Unchanged.]
(1) Indexes and Case Files. [Unchanged.]
(a)-(b) [Unchanged.]
(c) Register of Actions. The clerk shall keep a case
history of each case, known as a register of actions. The
register of actions shall contain both pre- and post-
judgment information. When a case is commenced, a
register of actions form shall be created. The case
identification information in the alphabetical index
shall be entered on the register of actions. In addition,
the following shall be noted chronologically on the
register of actions as it pertains to the case:
(i) the offense (if one);
(ii) the judge assigned to the case;
(iii) the fees paid;
(iv) the date and title of each filed document;
xciv 472 M
ICHIGAN
R
EPORTS
(v) the date process was issued and returned, as well
as the date of service;
(vi) the date of each event and type and result of
action;
(vii) the date of scheduled trials, hearings, and all
other appearances or reviews, including a notation
indicating whether the proceedings were heard on the
record and the name and certification number of the
court reporter or recorder present;
(viii) the orders, judgments, and verdicts;
(ix) the judge at adjudication and disposition;
(x) the date of adjudication and disposition; and
(xi) the manner of adjudication and disposition.
Each notation shall be brief, but shall show the
nature of each paper filed, each order or judgment of
the court, and the returns showing execution. Each
notation shall be dated with not only the date of filing,
but with the date of entry and shall indicate the person
recording the action.
(d) [Unchanged.]
(2)-(4) [Unchanged.]
(E)-(G) [Unchanged.]
Staff Comment: The February 1, 2005, effective May 1, 2005, amend-
ments were recommended by the Court of Appeals Record Production
Work Group.
The amendment of MCR 6.425(F) expedites the ordering of additional
transcripts in criminal appeals that have been requested by appointed
counsel by requiring trial courts to order additional transcripts within 14
days after receiving a timely request.
Although the rules contain no specific deadline within which counsel
is required to order additional transcripts, the Court of Appeals has
always applied a 28-day guideline to ensure that appellate attorneys are
quickly reviewing their orders of appointment to determine whether
additional transcripts are necessary. Court of Appeals Internal Operating
Procedure 7.204(C)(2) states that appointed counsel should review the
M
ICHIGAN
C
OURT
R
ULES OF
1985 xcv
order shortly after appointment to confirm that all necessary transcripts
were ordered. The same concept is stated in IOP 7.210(B)(1)-1. The
28-day guideline is stated in IOP 7.210(B)(1)-2.
The amendment of MCR 7.210(B)(3)(a) enhances an attorney’s ability
to discover and order missing transcripts in all appeals by requiring the
court reporter or recorder to specifically articulate on the certificate for
each proceeding requested: the estimated length of the transcript ordered
and the identity of the court reporter or recorder responsible for the
transcript if it is not the individual filing the certificate.
The amendment of MCR 8.119(D)(1)(c) expedites the ordering of
transcripts in all appeals by requiring the circuit court’s register of
actions to include a notation as to whether a hearing was held on the
record, and the name and certification number of the court reporter or
recorder responsible for transcribing the hearing. The subrule is also
divided for the ease of the reader.
The staff comment is not an authoritative construction by the Court.
Adopted February 1, 2005, effective May 1, 2005 (File No. 2004-11)—
R
EPORTER
.
[The present language is repealed and
replaced by the following language unless
otherwise indicated below:]
R
ULE
6.445. P
ROBATION
R
EVOCATION
.
(A)-(G) [Unchanged.]
(H) Review.
(1) In a case involving a sentence of incarceration
under subrule (G), the court must advise the proba-
tioner on the record, immediately after imposing sen-
tence, that
(a) the probationer has a right to appeal, if the
underlying conviction occurred as a result of a trial, or
(b) the probationer is entitled to file an application
for leave to appeal, if the underlying conviction was the
result of a plea of guilty or nolo contendere.
xcvi 472 M
ICHIGAN
R
EPORTS
(2) [Unchanged.]
Staff Comment: The February 1, 2005, amendment of MCR 6.445(H),
effective May 1, 2005, requires a sentencing judge to advise a probationer
whose probation is revoked that the probationer is entitled to appeal by
right if the probationer’s underlying conviction resulted from a trial.
Where the underlying conviction resulted from a plea of guilty or nolo
contendere, the probationer would be entitled to file an application for
leave to appeal.
The staff comment is not an authoritative construction by the Court.
Amendment of MCR 7.203 retained February 1, 2005 (File Nos.
2002-34, 2002-44)—R
EPORTER
.
By order dated October 5, 2004, 471 Mich cxiv, this
Court adopted the amendment of Rule 7.203 of the
Michigan Court Rules, effective immediately, to process
appeals arising solely from orders granting or denying
motions for summary disposition in accordance with
Administrative Order No. 2004-5, which was also
adopted October 5, 2004, 471 Mich xci, effective Janu-
ary 1, 2005. Notice and an opportunity for comment at
the January 27, 2005, public hearing having been
provided, and consideration having been given, the
amendment of Rule 7.203 is retained.
Amendment of MCR 7.204 retained February 1, 2005 (File No.
2004-43)—R
EPORTER
.
By order dated November 2, 2004, 471 Mich cxv, this
Court adopted the amendment of Rule 7.204 of the
Michigan Court Rules with immediate effect. Notice
and an opportunity for comment at the January 27,
2005, public hearing having been provided, and consid-
eration having been given, the amendment of Rule
7.204 is retained.
M
ICHIGAN
C
OURT
R
ULES OF
1985 xcvii
Amendments of MCR 9.124 and 9.126 retained February 1, 2005 (File
No. 2004-53)—R
EPORTER
.
By order dated November 2, 2004, 471 Mich cxvii,
this Court adopted the amendments of Rules 9.124 and
9.126 of the Michigan Court Rules with immediate
effect. Notice and an opportunity for comment at the
January 27, 2005, public hearing having been provided,
and consideration having been given, the amendments
of Rules 9.124 and 9.126 are retained.
Adopted March 8, 2005, effective immediately (File No. 2005-06)—
R
EPORTER
.
[The present language is repealed and
replaced by the following language unless
otherwise indicated below:]
R
ULE
5.784. Proceedings on a Durable Power of Attor-
ney for Health Care or Mental Health Treatment.
(A) Petition, Who Shall File. The petition concerning
a durable power of attorney for health care or mental
health treatment must be filed by any interested party
or the patient’s attending physician.
(B) Venue. Venue for any proceeding concerning a
durable power of attorney for health care or mental
health treatment is proper in the county in which the
patient resides or the county where the patient is found.
(C) Notice of Hearing, Service, Manner and Time.
(1) Manner of Service. If the address of an interested
party is known or can be learned by diligent inquiry,
notice must be by mail or personal service, but service
by mail must be supplemented by facsimile or telephone
contact within the period for timely service when the
hearing is an expedited hearing or a hearing on the
xcviii 472 M
ICHIGAN
R
EPORTS
initial determination regarding whether the patient is
unable to participate in medical or mental health treat-
ment decisions.
(2) Waiving Service. At an expedited hearing or a
hearing on an initial determination regarding whether
the patient is unable to participate in medical or mental
health treatment decisions, the court may dispense
with notice of the hearing on those interested parties
who could not be contacted after diligent effort by the
petitioner.
(3) Time of Service. Notice of hearing must be served
at least 2 days before the time of a hearing on an initial
determination regarding whether the patient is unable
to participate in medical or mental health treatment
decisions. Notice of an expedited hearing must be
served at such time as directed by the court. Notice of
other hearings must be served at such time as directed
by MCR 5.108.
(D) Hearings.
(1) Time. Hearings on a petition for an initial deter-
mination regarding whether a patient is unable to
participate in a medical or mental health treatment
decision must be held within 7 days of the filing of the
petition. The court may order an expedited hearing on
any petition concerning a durable power of attorney for
health care or mental health treatment decisions on a
showing of good cause to expedite the proceedings. A
showing of good cause to expedite proceedings may be
made ex parte.
(2) Trial. Disputes concerning durable powers of
attorney for health care or mental health treatment
decisions are tried by the court without a jury.
(3) Proof. The petitioner has the burden of proof by a
preponderance of evidence on all contested issues ex-
M
ICHIGAN
C
OURT
R
ULES OF
1985 xcix
cept that the standard is by clear and convincing
evidence on an issue whether a patient has authorized
the patient advocate under a durable power of attorney
for health care to decide to withhold or withdraw
treatment, which decision could or would result in the
patient’s death, or authorized the patient advocate
under a durable power of attorney for mental health
treatment to seek the forced administration of medica-
tion or hospitalization.
(4) Privilege, Waiver. The physician-patient privilege
must not be asserted.
(E) Temporary Relief. On a sufficient showing of
need, the court may issue a temporary restraining order
pursuant to MCR 3.310 pending a hearing on any
petition concerning a durable power of attorney for
health care or mental health treatment.
Staff Comment: Public Acts 532, 551-557, and 559 of 2004, effective
January 3, 2005, authorize a durable power of attorney for mental health
treatment decisions. The amendments of MCR 5.784 broaden the rule to
cover proceedings concerning durable powers of attorney for mental
health treatment.
The staff comment is not an authoritative construction by the Court.
Adopted March 8, 2005, effective immediately (File No. 2004-37)—
R
EPORTER
.
[The present language is repealed and
replaced by the following language unless
otherwise indicated below:]
R
ULE
7.217. Involuntary Dismissal of Cases.
(A)-(C) [Unchanged.]
(D) Reinstatement.
(1) Within 21 days after the date of the clerk’s notice
of dismissal pursuant to this rule, the appellant or
c 472 M
ICHIGAN
R
EPORTS
plaintiff may seek relief from dismissal by showing
mistake, inadvertence, or excusable neglect.
(2) The chief judge of the Court of Appeals will decide
all untimely motions for reinstatement of an appeal.
Staff Comment: The March 8, 2005, amendment of MCR 7.217(D)(2)
requires the chief judge of the Court of Appeals to decide all untimely
motions for reinstatement of an appeal that is involuntarily dismissed for
want of prosecution.
The staff comment is published only for the benefit of the bench and
bar and is not an authoritative construction by the court.
Retained May 31, 2005 (File No. 2005-06)—R
EPORTER
.
R
ULE
5.784. P
ROCEEDINGS ON A
D
URABLE
P
OWER OF
A
TTOR-
NEY FOR
H
EALTH
C
ARE OR
M
ENTAL
H
EALTH
T
REATMENT
.
[Amendment of Rule 5.784 is retained.]
Retained May 31, 2005 (File No. 2003-20)—R
EPORTER
.
R
ULE
9.216. A
PPEARANCE
B
EFORE
C
OMMISSION
.
[Amendment of Rule 9.216 is retained.]
Administrative file closed May 31, 2005 (File No. 2004-13)—R
EPORTER
.
On order of the Court, the proposed amendment of
Rule 2.504 of the Michigan Court Rules having been
published for comment at 471 Mich 1215-1216 (2005),
and an opportunity having been provided for comment
in writing and at a public hearing on May 26, 2005, the
Court declines to adopt the proposed amendment. This
administrative file is closed without further action.
Adopted May 31, 2005, effective September 1, 2005 (File No. 2004-
47)—R
EPORTER
.
M
ICHIGAN
C
OURT
R
ULES OF
1985 ci
[The present language is repealed and
replaced by the following language unless
otherwise indicated below:]
R
ULE
7.302. A
PPLICATION FOR
L
EAVE TO
A
PPEAL
.
(A)-(B) [Unchanged.]
(C) When to File.
(1)-(3)[Unchanged.]
(4) Decisions Remanding for Further Proceedings. If
the decision of the Court of Appeals remands the case to
a lower court for further proceedings, an application for
leave may be filed within 28 days in appeals from orders
terminating parental rights, 42 days in other civil cases,
or 56 days in criminal cases, after
(a) the Court of Appeals decision ordering the re-
mand,
(b) the Court of Appeals clerk mails notice of an order
denying a timely filed motion for rehearing of a decision
remanding the case to the lower court for further
proceedings, or
(c) the Court of Appeals decision disposing of the case
following the remand procedure, in which case an
application may be made on all issues raised in the
Court of Appeals, including those related to the remand
question.
(5)-(6) [Unchanged.]
(D)-(H) [Unchanged.]
Staff Comment: The amendment of MCR 7.302(C)(4), effective Sep-
tember 1, 2005, allows a party to seek leave to appeal in the Michigan
Supreme Court from the denial of a motion for rehearing of a Court of
Appeals decision to remand a case to the trial court. The amendment also
adds language that clarifies that a 28-day time limit applies to applica-
tions for leave to appeal in appeals from orders terminating parental
rights.
cii 472 M
ICHIGAN
R
EPORTS
The staff comment is published only for the benefit of the bench and
bar and is not an authoritative construction by the Court.
Adopted June 8, 2005, effective immediately (File No. 2004-33)—
R
EPORTER
.
On order of the Court, the need for immediate action
having been found, the notice requirements are dis-
pensed with and the following amendments of Rule
9.221 of the Michigan Court Rules are adopted, effective
immediately. MCR 1.201(D). The amendments will be
considered at a future public hearing by the Court.
[The present language is repealed and
replaced by the following language unless
otherwise indicated below:]
R
ULE
9.221. C
ONFIDENTIALITY
;D
ISCLOSURE
.
(A) Scope of Rule. Except as provided in this rule, all
papers filed with the commission and all proceedings
before it are confidential in nature and are absolutely
privileged from disclosure by the commission or its
staff, including former members and employees, in any
other matter, including but not limited to civil, crimi-
nal, legislative, or administrative proceedings. All the
commission’s investigative files and commission-
generated documents are likewise confidential and
privileged from disclosure. Nothing in this rule pro-
hibits the respondent judge from making statements
regarding the judge’s conduct.
(B) Before Filing a Formal Complaint.
(1) Before a complaint is filed, neither a commis-
sioner nor a member of the commission staff may
disclose the existence or contents of an investigation,
M
ICHIGAN
C
OURT
R
ULES OF
1985 ciii
testimony taken, or papers filed in it, except as needed
for investigative purposes.
(2) The commission may at any time make public
statements as to matters pending before it on its
determination by a majority vote that it is in the public
interest to do so, limited to statements
(a) that there is an investigation pending,
(b) that the investigation is complete and there is
insufficient evidence for the commission to file a com-
plaint, or
(c) with the consent of the respondent, that the
investigation is complete and some specified disciplin-
ary action has been taken.
(C) Discretionary Waiver of Confidentiality or Privi-
lege. The commission may waive the confidentiality or
privilege protections if:
(1) the respondent waives, in writing, the right to
confidentiality or privilege;
(2) the grievant waives, in writing, the right to
confidentiality or privilege;
(3) the witness whose statement, testimony, or other
evidentiary item will be disclosed waives, in writing, the
right to confidentiality or privilege; and
(4) a majority of the commission determines that the
public interest will be served by doing so.
(D) After Filing of Formal Complaint.
(1) When the commission issues a complaint, the
following shall not be confidential or privileged:
(a) the complaint and all subsequent pleadings filed
with the commission or master, all stipulations entered,
all findings of fact made by the master or commission,
civ 472 M
ICHIGAN
R
EPORTS
and all reports of the master or commission; however,
all papers filed with and proceedings before the com-
mission during the period preceding the issuance of a
complaint remain confidential and privileged except
where offered into evidence in a formal hearing; and
(b) the formal hearing before the master or commis-
sion, and the public hearing provided for in MCR 9.216.
(2) This subrule neither limits nor expands a respon-
dent’s right to discovery under MCR 9.208(C).
(3) The confidentiality or privilege of any otherwise
nonpublic disciplinary action is waived in any proceed-
ing on a concurrent or subsequent formal complaint.
(E) Disclosure to Grievant.
(1) Upon completion of an investigation or proceed-
ing on a complaint, the commission shall disclose to the
grievant that the commission
(a) has found no basis for action against the judge or
determined not to proceed further in the matter,
(b) has taken an appropriate corrective action, the
nature of which shall not be disclosed, or
(c) has recommended that the respondent be publicly
censured, suspended, removed, or retired from office.
(F) Public Safety Exception. When the commission
receives information concerning a threat to the safety of
any person or persons, information concerning such
person may be provided to the person threatened, to
persons or organizations responsible for the safety of
the person threatened, and to law enforcement or any
appropriate prosecutorial agency.
(G) Disclosure to State Court Administrator.
(1) [Unchanged.]
(2) [Unchanged.]
M
ICHIGAN
C
OURT
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ULES OF
1985 cv
(H) Disclosure to Attorney Grievance Commission.
Notwithstanding the prohibition against disclosure in
this rule, the commission shall disclose information
concerning a judge’s misconduct in office, mental or
physical disability, or some other ground that warrants
commission action under Const 1963, art 6, § 30, to the
Attorney Grievance Commission, upon request. Absent a
request, the commission may make such disclosure to
the Attorney Grievance Commission. In the event of a
dispute concerning the release of information, either the
Attorney Grievance Commission or the Judicial Tenure
Commission may petition the Supreme Court for an
order resolving the dispute.
Staff Comment: New subrule (A) explains that Judicial Tenure
Commission proceedings and investigative files are confidential and
privileged from disclosure. The subrule addresses the ruling in L awrence
v Van Aken, 316 F Supp 2d 547 (WD Mich, 2004), which required the
commission to disclose its investigative files because the language of
MCR 9.221 did not render the files “privileged” from disclosure.
Subrule (B) clarifies that, before it files a formal complaint, the
commission is limited in the type of information it can divulge regarding
an investigation. New subrule (C) allows the commission to waive
confidentiality of its records, in certain specified circumstances, and
divulge information related to an investigation. New subrule (D) clarifies
when the commission can reveal information about an investigation after
the commission files a formal complaint.
New subrule (E) specifies the instances in which the commission can
disclose information about the investigation to the grievant. New subrule
(F) creates a “public safety exception” to the rule prohibiting disclosure.
This exception authorizes the commission to disclose threats against a
person to the person whose safety is threatened. Subrule (H) allows
either the Judicial Tenure Commission or the Attorney Grievance
Commission to ask the Supreme Court to resolve a dispute regarding the
disclosure of the commission’s investigatory records.
The staff comment is not an authoritative construction by the Court.
cvi 472 M
ICHIGAN
R
EPORTS
Adopted June 28, 2005, effective September 1, 2005 (File No. 2004-
46)—R
EPORTER
.
[The present language is repealed and
replaced by the following language unless
otherwise indicated below:]
R
ULE
7.211. Motions in Court of Appeals.
(A)-(B) [Unchanged.]
(C) Special Motions. If the record on appeal has not
been sent to the Court of Appeals, except as provided in
subrule (C)(6), the party making a special motion shall
request the clerk of the trial court or tribunal to send
the record to the Court of Appeals. A copy of the request
must be filed with the motion.
(1)-(8) [Unchanged.]
(9) Motion to Seal Court of Appeals File in Whole or
in Part.
(a) Trial court files that have been sealed in whole or
in part by a trial court order will remain sealed while in
the possession of the Court of Appeals. Public requests
to view such trial court files will be referred to the trial
court.
(b) Materials that are subject to a protective order
entered under MCR 2.302(C) may be submitted for
inclusion in the Court of Appeals file in sealed form if
they are accompanied by a copy of the protective order.
A party objecting to such sealed submissions may file an
appropriate motion in the Court of Appeals.
(c) Except as otherwise provided by statute or court
rule, the procedure for sealing a Court of Appeals file is
governed by MCR 8.119(F).
M
ICHIGAN
C
OURT
R
ULES OF
1985 cvii
(d) Any party or interested person may file an answer
in response to a motion to seal a Court of Appeals file
within 7 days after the motion is served on the other
parties, or within 7 days after the motion is filed in the
Court of Appeals, whichever is later.
(e) An order granting a motion shall include a finding
of good cause, as defined by MCR 8.119(F)(2), and a
finding that there is no less restrictive means to ad-
equately and effectively protect the specific interest
asserted.
(f) An order granting or denying a motion to seal a
Court of Appeals file in whole or in part may be
challenged by any person at any time during the pen-
dency of an appeal.
(D)-(E) [Unchanged.]
Staff Comment: The September 1, 2005, amendment of MCR 7.211(C)
creates new subrule (9) to clarify the procedure for motions to seal Court
of Appeals files and to unseal previously sealed files. The rule incorpo-
rates by reference the procedures for sealing files in the trial courts set
forth in MCR 8.119(F). The amendment also contains additional lan-
guage unique to cases pending in the Court of Appeals.
The staff comment is not an authoritative construction by the Court.
cviii 472 M
ICHIGAN
R
EPORTS
AMENDMENT OF MICHIGAN RULES
OF
PROFESSIONAL CONDUCT
Adopted June 15, 2005, effective immediately (File No. 2003-19)—
R
EPORTER
.
[The present language is repealed and
replaced by the following language unless
otherwise indicated below:]
R
ULE
1.15. Safekeeping Property.
(a) A lawyer shall hold property of clients or third
persons that is in a lawyer’s possession in connection
with a representation separate from the lawyer’s own
property. All funds of the client paid to a lawyer or law
firm, other than advances for costs and expenses, shall
be deposited in an interest- or dividend-bearing account
in one or more identifiable banks, savings and loan
associations, or credit unions maintained in the state in
which the law office is situated, and no funds belonging
to the lawyer or the law firm shall be deposited therein
except as provided in this rule. Other property shall be
identified as such and appropriately safeguarded. Com-
plete records of such account funds and other property
shall be kept by the lawyer and shall be preserved for a
period of five years after termination of the represen-
tation.
(b) [Unchanged.]
(c) [Unchanged.]
cix
(d)(1) Except as set forth in paragraph (d)(2), a
lawyer who or a law firm which receives client funds
shall maintain a pooled interest- or dividend-bearing
trust account, as defined by the Michigan State Bar
Foundation, at a bank or savings and loan association
authorized by state or federal law to do business in
Michigan, the deposits of which are insured by an
agency of the federal government, or in an open-end
investment company registered with the Securities and
Exchange Commission for deposit of client funds, other
than advances for costs and expenses, which at the time
of receipt and deposit the lawyer or law firm reasonably
anticipates will generate $50 or less in interest during
the period for which it is anticipated such funds are to
be held. Such an account shall comply with the follow-
ing:
(A) No interest from the account shall be made
available to the lawyer or law firm.
(B) The account shall include all client funds which
are not expected to earn more than $50 in interest
during the period it is anticipated such funds are to be
held unless such funds are deposited in an interest-
bearing account specified in paragraph (d)(2). The good-
faith decision by the lawyer as to whether funds are
expected to earn this amount is not reviewable by a
disciplinary body.
(C) Funds deposited with a bank, savings and loan
association, or open-end investment company shall be
subject to withdrawal upon request and without delay
as soon as permitted by law.
(D) The interest or dividend rate paid shall not be
less than the highest rate generally available from the
bank, savings and loan association, or open-end invest-
ment company to its non-IOLTA customers when the
account meets the same minimum balance or other
cx 472 M
ICHIGAN
R
EPORTS
eligibility qualifications. Interest or dividends and fees
shall be calculated in accordance with the institution’s
standard practice, but institutions may elect to pay a
higher rate, and may elect to waive any fees, on IOLTA
accounts.
(E) The lawyer or law firm shall direct the bank,
savings and loan association, or open-end investment
company to:
(i) remit the interest, less per check charges, per
deposit charges, a fee in lieu of a minimum balance,
federal deposit insurance fees, sweep fees and a reason-
able administrative or maintenance fee, at least quar-
terly to the Michigan State Bar Foundation;
(ii) transmit, with each remittance to the Michigan
State Bar Foundation, a report which shall identify each
lawyer or law firm and the amount of the remittance
attributable to each account maintained by each lawyer
or law firm, the rate and type of interest or dividends
applied, the amount of interest or dividends earned, the
amount and type of fees deducted, if any, and the
average account balance for the period for which the
report is made; and
(iii) transmit to the depositing lawyer or law firm a
report, in accordance with normal procedures for re-
porting to depositors.
(2) [Unchanged.]
Staff Comment: The amendments of MRPC 1.15, effective immedi-
ately, are intended to provide interest rate parity with investments in
non-IOLTA accounts in order to maximize the return on the investments
for the benefit of the Michigan Bar Foundation.
The staff comment is not an authoritative construction by the Court.
R
ULES OF
P
ROFESSIONAL
C
ONDUCT
cxi
AMENDMENT OF STATE BAR RULES
Adopted May 10, 2005, effective immediately (File No. 2005-15)—
R
EPORTER
.
[The present language is repealed and
replaced by the following language unless
otherwise indicated below:]
R
ULE
2. M
EMBERSHIP
.
Those persons who are licensed to practice law in this
state shall constitute the membership of the State Bar
of Michigan, subject to the provisions of these rules.
Law students may become law student section members
of the State Bar. None other than a member’s correct
name shall be entered upon the official register of
attorneys of this state. Each member, upon admission to
the State Bar and in the annual dues statement, must
provide the State Bar with the member’s correct name
and address, and such additional information as may be
required. If the address provided is a mailing address
only, the member also must provide a street or building
address for the member’s business or residence. No
member shall practice law in this state until such
information has been provided. Members shall notify
the State Bar promptly in writing of any change of
name or address. The State Bar shall be entitled to due
notice of, and to intervene and be heard in, any pro-
ceeding by a member to alter or change the member’s
name. The name and address on file with the State Bar
at the time shall control in any matter arising under
cxii
these rules involving the sufficiency of notice to a
member or the propriety of the name used by the
member in the practice of law or in a judicial election or
in an election for any other public office. Every active
member shall annually provide a certification as to
whether the member or the member’s law firm has a
policy to maintain interest-bearing trust accounts for
deposit of client and third-party funds. The certification
shall be placed on the face of the annual dues notice and
shall require the member’s signature or electronic
signature.
R
ULE
5. B
OARD OF
C
OMMISSIONERS
.
Sec. 1.-Sec. 3 [Unchanged.]
Sec. 4. Nomination and Election of Commissioners. A
commissioner is elected by the active members having
their principal offices in the election district. To be
nominated, a member must have his or her principal
office in the election district and file a petition signed by
at least 5 persons entitled to vote for the nominee with
the secretary at the principal office of the State Bar
between April 1 and April 30. Voting eligibility is
determined annually on May 1. Before June 2, the
secretary shall mail or electronically deliver a ballot to
everyone entitled to vote. A ballot will not be counted
unless marked and returned to the secretary at the
principal office of the State Bar in a sealed envelope
bearing a postmark date not later than June 15, or
returned electronically or telephonically in conformity
with State Bar election procedure not later than June
15. A board of 3 tellers appointed by the president shall
canvass the ballots, and the secretary shall certify the
count to the supreme court clerk. A member of or a
candidate for the board may not be a teller. The
candidate receiving the highest number of votes will be
declared elected. In the case of a tie vote, the tellers
S
TATE
B
AR
R
ULES
cxiii
shall determine the successful candidate by lot. In an
election in which terms of differing length are to be
filled, the successful candidate with the lowest vote
shall serve the shortest term to be filled.
Sec. 5.-Sec. 7 [Unchanged.]
R
ULE
6. R
EPRESENTATIVE
A
SSEMBLY
.
Sec. 1.-Sec. 3 [Unchanged.]
Sec. 4. Nomination and Election of Representatives.
A representative is elected by the active members
having their principal offices in a judicial circuit. To be
nominated, a member must have his or her principal
office in the judicial circuit and file a petition signed by
at least 5 persons entitled to vote for the nominee with
the secretary at the principal office of the State Bar
between April 1 and April 30. Voting eligibility is
determined annually on May 1. Before June 2, the
secretary shall mail or electronically deliver a ballot to
everyone entitled to vote. When an assembly member
seeks reelection, the election notification must disclose
his or her incumbency and the number of meetings of
the assembly that the incumbent has attended in the
following form: “has attended ____ of ____ meetings
during the period of [his or her] incumbency.” A ballot
may not be counted unless marked and returned to the
secretary at the principal office of the State Bar in a
sealed envelope bearing a postmark date not later than
June 15, or returned electronically or telephonically in
conformity with State Bar election procedure not later
than June 15. A board of tellers appointed by the
president shall canvass the ballots and the secretary
shall certify the count to the supreme court clerk. A
member of or candidate for the assembly may not be a
teller. The candidate receiving the highest number of
votes will be declared elected. In the case of a tie vote,
the tellers shall determine the successful candidate by
cxiv 472 M
ICHIGAN
R
EPORTS
lot. An election will occur in each judicial circuit every 3
years, except that in a judicial circuit entitled to 3 or
more representatives, one-third will be elected each
year. If a short-term representative is to be elected at
the same election as a full-term one, the member with
the higher vote total is elected to the longer term.
Sec. 5.-Sec. 8 [Unchanged.]
S
TATE
B
AR
R
ULES
cxv
PORTRAIT PRESENTATION OF
“THE BIG FOUR”
M
ARCH
8, 2005
C
HIEF
J
USTICE
T
AYLOR
: Welcome. It is my pleasant
task to welcome all of you to this very special session of
the Michigan Supreme Court. A particular welcome to
Nancy Diehl and John Berry from the State Bar and to
Wally Riley, from the Supreme Court Historical Society,
who will serve as master of ceremonies today.
Before I turn the proceedings over to Mr. Riley, I
would like to say a few brief words on what this painting
represents to the Court today. The casual observer
would look on this painting, fine as it is, as just an
image of four gentlemen who are wearing quaint old
clothes and sporting whiskers. What possible interest,
they might ask, does this image hold for us today?
Obviously, this painting reminds us of the origins of
our Court, and also of the distinguished lawyers and
scholars who comprised “The Big Four.” Their fair-
mindedness and learning not only led to national rec-
ognition of this Supreme Court as one of the best in the
country, but also set a very high standard for all the
justices who would follow them.
Even more importantly, the calm faces of these four
justices remind all of us how essential a role the law
plays in maintaining democracy, especially in uncertain
times.
And the world in which these men lived and worked
was one beset by uncertainty. The United States had
cxvii
recently been torn by a bitter and devastating war in
which over 3.8 million men, representing over ten
percent of the nation’s population, participated.
1
Of
those, 970,000 young men
2
died or were maimed. It
bears noting that the Michigan contribution to that war
paid testament to our abolitionist heritage. Consider
this when attempting to appreciate it: At Spotsylvania,
in the overland campaign commanded by General
Grant, the 17th Michigan Infantry lost 190 out of 225
men in a single attack.
3
In the same campaign at
Petersburg, six regiments of Michigan infantry were
victims of the slaughter in the crater formed by the
tunneling explosion
4
depicted in the recent film Cold
Mountain. In all, 14,700 Michigan men gave their lives.
5
The war changed the American economy also. For
example, we are informed by Professor Willis Dunbar in
his book Michigan: A History of the Wolverine State that
between 1860 and 1870 the number of manufacturing
establishments increased by 174 percent and the
amount of capital invested by 201 percent. In this
atmosphere of upheaval, both during the war and in the
postwar years, people longed for restored stability.
That was the world inhabited by Justices T
HOMAS
C
OOLEY,
I
SAAC
C
HRISTIANCY,
J
AMES
V. C
AMPBELL
, and
B
ENJAMIN
F. G
RAVES
. And they met the challenge of
uncertain times by affirming, through their profes-
sional discipline and fidelity, the stability provided by
our Constitution and laws.
1
Source: The United States Civil War Center, Louisiana State Univer-
sity.
2
Id.
3
Dunbar, Michigan: A History of the Wolverine State (Grand Rapids:
Wm. B. Eerdmans Publishing Co, 1965), p 453.
4
Id.
5
Catton, Michigan: A History (New York: W. W. Norton & Co, 1984), p
149.
cxviii 472 M
ICHIGAN
R
EPORTS
This was not an easy or, at times, popular course. For
example, in 1865, the Court, which at that time in-
cluded Justices C
HRISTIANCY,
C
AMPBELL
, and C
OOLEY
, was
called upon to decide whether Michigan’s election laws
violated the state Constitution’s requirement that vot-
ers reside in the state. The case is reported at 13
Michigan Reports 127, and is entitled The People on
relation of Daniel S. Twitchell v. Amos C. Blodgett.
Twitchell and Blodgett were contenders for the office of
prosecuting attorney in Washtenaw County. Twitchell
argued, and the Court accepted, that he would have won
the election if soldiers’ votes had been counted. The law
at issue was enacted in February 1864 to allow soldiers
on duty outside the state to vote. Its adoption had been
urged here and in other unionist states by President
Lincoln as he felt, correctly as it would work out, that
the soldiers’ vote would be strongly Republican. In
short, in this very Republican state, it was a very
popular measure. Needless to say, a decision upholding
the law would have insured the justices’ popularity.
But the justices, almost certainly going against their
own personal inclinations, held that the law violated
the state Constitution. Justice C
OOLEY
wrote that the
text of the Constitution was clear, and that the “fair and
natural import of the terms employed... is what
should govern.”
He went on to say that violating this rule of construc-
tion would undermine “the anchor of our safety.” He
concluded: “And, believing as I do, that a high and
sacred regard for law and constitutional order is being
begotten of these times, I regard it as especially impor-
tant that the judiciary should do nothing to postpone or
check this result by decisions which strain or bend the
meaning of words to meet unexpected emergencies.”
“B
IG
F
OUR”
P
ORTRAIT
P
RESENTATION
cxix
It was not a popular decision. In fact, in addition to
Mr. Twitchell, some state legislators also lost elections
as a result of the ruling.
Living as we do in a time when so many of our
daughters and sons are away fighting a war, we can also
imagine and appreciate the feelings of those who saw
the Court’s action as displaying a shocking indifference
to the plight of those in uniform. But the Court clearly
and decisively said that its role was to uphold the
Constitution and follow the original understanding of
the words used in the documents, regardless of personal
inclination or public reaction. That took integrity, char-
acter, and great courage.
This is the stuff of which our heritage consists both
as a Court and as citizens. These four men remind us
that the law does, indeed, provide “the anchor of our
safety” and they call on us to preserve that source of
stability, justice, and strength.
I now ask Mr. Riley to proceed with the program.
M
R
.R
ILEY
: Thank you Mr. Chief Justice. On behalf of
the board of directors of the Michigan Supreme Court
Historical Society, welcome to today’s special session to
acknowledge the loan of the Big Four Portrait by the
State Bar of Michigan to the Michigan Supreme Court.
The portrait that we will soon unveil has become a
somewhat famous part of Michigan’s legal history. It is
based not on any real moment, but on an artist’s idea of
how the justices, who would become known as the Big
Four, might have looked as they transacted their busi-
ness of the Court. Copies of the painting in various sizes
and shapes can be found downtown on the side of
Cooley Law School, in the Learning Center just down-
stairs, and in offices around the state of many attor-
neys.
cxx 472 M
ICHIGAN
R
EPORTS
Recently, the painting was hung at 306 Townsend
Street, home of the State Bar of Michigan. In fact, it was
painted to be hung over the mantel in that room in that
building. When that building was renovated, the paint-
ing was taken down and placed in storage and then with
the help of the society’s former executive director, Jill
Wright, the painting was located and restored to its
original pristine condition.
After today, it will be hung in the conference center
on the first floor of this Hall of Justice. Of course, we
have the individual portraits of each one of the Big Four
in the Court’s collection of portraits. But their grouping
is unique.
The story behind the painting of this portrait, and of
the justices featured in it, is an interesting one. And to
tell you about it, may I present to you John T. Berry,
executive director of the State Bar of Michigan, and Ms.
Nancy J. Diehl, president of the State Bar of Michigan.
M
R
.B
ERRY
: May it please the Court, Chief Justice
T
AYLOR
and justices, and distinguished guests. It’s a
privilege to be here today and, when you come to such
an event, it is a privilege in and of itself, but sometimes
other events connected to it give it even more impor-
tance in your own life and in the lives of the bar that I
represent.
And, very quickly, I want to share two of those
events. One, this morning, I mentor a law student and
we were talking about the state of the law, about the
role of attorneys. And this painting has come to be
known in this community and throughout this state for
a lot of reasons, the reasons that you so well articulated,
Chief Justice, but also it represents the role of attorneys
as ministers of justice. Not just hired guns but the role
to be able to be part of a judicial system, a system that
we can all be proud of. And I talked to that young
“B
IG
F
OUR”
P
ORTRAIT
P
RESENTATION
cxxi
student about that role and the challenges that they
have to understand that role. The fact that this Court
would take this time to be able to hang this painting
with what all it represents, the State Bar truly thanks
this Court and all that have been part of it.
This portrait affected me as well in another way. Two
and a half years ago I had the privilege of going to
Nigeria on behalf of the Justice Department to talk
about the rule of law, and I tried to look at one thing
from the state of Michigan that I thought might repre-
sent something that would set up that moment. And as
I was driving down the street and I saw that mural, I
suddenly recognized that that might be the one thing.
And, believe it or not, it was. That was a country that is
trying to emulate what this country is all about. Even
though their constitution is similar to ours and even
though they are attempting to do what we are, this is
inbred into who we are and what we are about. So this
painting carries for us a lot of meaning that goes beyond
some of the things that initially we may think brings
meaning to it. It is my privilege to tell you about that
portrait.
The Big Four portrait that we are presenting today
was originally commissioned by attorney Frank G.
Mixter and was donated to the State Bar of Michigan in
1967. Artist John Coppin painted the portrait to fit the
space that was located over the fireplace in what was
then the State Bar lounge. That area of the building is
now the Board of Commissioners meeting room. Frank
Mixter devoted himself to helping others through his
law practice and his involvement with the Lincoln Park
city affairs, community organizations, and the Lincoln
Park schools. A true community benefactor, he gener-
ously gave of his time and of his money to many
organizations, including the State Bar of Michigan. We
cxxii 472 M
ICHIGAN
R
EPORTS
were hoping that Frank Mixter’s son, attorney Ken-
neth Mixter, could join us today. Although he and his
wife are out of the country, Ken wrote a note that he
wanted me to share with you. “Dear Mr. Berry: I
received your invitation to the ceremony acknowledg-
ing the loan of the portrait of the Big Four to the
Michigan Supreme Court and its new permanent dis-
play in the Supreme Court building. I regret that I will
be unable to attend as my wife and I will be out of the
country on vacation. My father and mother, Frank G.
Mixter and Grace D. Mixter, who commissioned the
painting, would be very proud of the fact that the
painting will be hanging in the Supreme Court build-
ing. On behalf of myself, the rest of the family, we look
forward to visiting the building in the future and
thank you very much for including us in the ceremony.
Sincerely yours, Kenneth G. Mixter.”
The Big Four portrait artist, John S. Coppin, was
born in Mitchell, Ontario. After settling in Bloomfield
Hills, he became a prominent portrait painter, muralist,
and illustrator. As director of AAA Motor News maga-
zine, the forerunner of Michigan Living magazine, he
was noted for providing covers for that publication for
more than forty years. John Coppin’s portrait subjects
included actor Sir Alec Guinness, General Motors presi-
dent James M. Rosh, automobile tycoon Henry Ford,
and four Michigan governors. In addition to museums,
locations of his work include the Michigan state capitol
building, Rittenburg University in Ohio, Detroit Col-
lege of Law, the University of Detroit, Detroit Public
Library, the Detroit Historical Museum, the Shakes-
peare Theatre in Ontario, and the Van Wexell Hall in
Sarasota, Florida. In 1999, Mr. Coppin’s family gener-
ously gave their permission for this painting to be
replicated on the wall of Cooley Law School. The sixty
by ninety foot mural is a faithful reproduction of the oil
“B
IG
F
OUR”
P
ORTRAIT
P
RESENTATION
cxxiii
painting. Then being at Cooley Law School, T
HOMAS
E.
B
RENNAN
said the goal of replicating the portrait on the
wall of the law school was for the painting to serve as a
reminder of the continuum of the law.
The painting being donated today is a composite of
Michigan Supreme Court Justices J
AMES
V. C
AMPBELL,
B
ENJAMIN
F. G
RAVES,
T
HOMAS
M. C
OOLEY
, and I
SAAC
B.
C
HRISTIANCY
. Known as the Big Four, these justices did
not pose for the painting as already noted. Rather, the
artist John Coppin copied individual portraits of the
justices painted by the 19th Century L. T. Ives and put
them together in the courtroom. Mr. Coppin even found
the original court bench and court clock, which, as a
composite, shows these four great jurists in action. On
behalf of the State Bar of Michigan, I am pleased to
present this painting today to permanently reside in
Michigan’s Hall of Justice. Thank you very much.
M
S
.D
IEHL:
Good afternoon, Chief Justice and other
distinguished justices. Thank you for a few smiles. No
one told me I was going to be addressing you this
afternoon and individually all so pleasant, but you look
so imposing up there this afternoon. I just have to get a
few rules straight. I understand I have no time limit
and you will not be asking me any questions. All right.
J
USTICE
Y
OUNG:
Don’t be too sure.
M
S
.D
IEHL:
All right, Justice Y
OUNG
. Okay. That’s why
I studied. It is truly an honor to be here this afternoon
and represent the State Bar of Michigan.
Many of you today probably have heard about the Big
Four painting. Over the years I certainly have. But just
who were these justices and what was their significance
in terms of Michigan legal history? Justices C
AMPBELL,
C
HRISTIANCY,
C
OOLEY
, and G
RAVES
served on the Michi-
gan Supreme Court together from 1868 to 1875 and
came to be known as the Big Four. They were recog-
nized in legal circles throughout the country for their
cxxiv 472 M
ICHIGAN
R
EPORTS
insightful decisions and also credited with providing the
direction and structure of today’s Michigan Supreme
Court. Known as exceptionally scholarly men, these
four justices possessed a high degree of the fair-
mindedness essential to a jurist. Each articulated his
views and opinions that were marked by energy and
clearness of expression.
The Michigan Supreme Court begins with the state
Constitution of 1850, stating that the judges of the
circuit courts would also serve as judges of the Supreme
Court. This initial arrangement soon proved unsuccess-
ful and, in 1857, the Michigan Legislature created a
permanent Supreme Court. J
AMES
V. C
AMPBELL
and
I
SAAC
P. C
HRISTIANCY
were elected and joined the first
Court in 1858. Six years later, in 1864, T
HOMAS
M.
C
OOLEY
was appointed to the Supreme Court and, at the
time when C
OOLEY
became Chief Justice in 1868, B
EN-
JAMIN
F. G
RAVES
won election and joined the Court.
Thus, the beginning of the tenure of the Big Four.
J
AMES
V. C
AMPBELL
was born in 1823 in Buffalo, New
York. While an infant his family relocated to Detroit,
where he remained a lifelong resident. He was admitted
to the bar in 1844 and practiced law until becoming a
member of the Supreme Court thirteen years later. In
1859, he was chosen as Marshall Professor of Law at the
University of Michigan law department, where he in-
fluenced young lawyers for over twenty-five years. He
greatly respected the rights of the people secured to
them by the Constitution and was quick to resent any
invasion of its protections. Justice C
AMPBELL
served on
the Supreme Court for thirty-two years until his death
in 1890 at the age of sixty-seven.
I
SAAC
P. C
HRISTIANCY
was born in 1812 in Johnstown,
New York. At the age of thirteen, C
HRISTIANCY
taught
school in order to support his family. He began the
“B
IG
F
OUR”
P
ORTRAIT
P
RESENTATION
cxxv
study of law in 1835 and moved to Monroe, Michigan, in
1836, where he established a law practice. He practiced
law in the area of Monroe for nineteen years while also
maintaining a career as a public servant. He was the
prosecuting attorney for Monroe County and was also
in the state senate. C
HRISTIANCY
was elected and joined
the new Supreme Court in 1858. He was unanimously
re-elected in 1865 by all parties and continued to serve
on the Court until 1875, when he resigned to become a
United States Senator. Throughout his adult life, he
was vehemently opposed to slavery and was instrumen-
tal in the formation of the Republican Party in Michi-
gan.
T
HOMAS
M. C
OOLEY
, perhaps a name more familiar to
most of us, was born in 1825 in Attica, New York. He
was one of fifteen children. He began teaching school at
the age of seventeen to earn money for his education.
He began the study of law at the age of nineteen, which
was then the custom, and decided he was going to
continue his studies of law in Chicago, but, as luck
would have it for those of us in Michigan, money ran out
so he ended up staying in Adrian, Michigan, and at the
age of twenty-two he was admitted to the Michigan bar.
Besides practicing law, he edited the local newspaper.
He served as a circuit court commissioner and recorder
for the city of Adrian and cultivated his one-hundred-
acre farm. In 1857, he compiled the general statutes of
the Legislature, and in the following year was appointed
the official reporter for the new Supreme Court. One
year later, C
OOLEY
became a professor in the newly
organized law department at the University of Michi-
gan and taught law there for the next twenty-five years.
In 1864, at the age of forty, while serving as the first
dean of the University of Michigan law school, he was
appointed to the Supreme Court and was elected three
times before his resignation in 1885.
cxxvi 472 M
ICHIGAN
R
EPORTS
B
ENJAMIN
G
RAVES
was the final member of the Big
Four and he was born in 1817 in Rochester, New York.
All the Big Four were born in New York, so here they
came to Michigan. And he studied law, after he was
admitted in New York, came to Michigan, was actually
going to travel to Kentucky, went there for a while,
came back to Michigan, where he settled in Battle
Creek, and lived the life of a country lawyer. In 1857, at
the age of forty, he was elected judge of the Fifth Circuit
Court and later that year appointed to the Michigan
Supreme Court to fill a vacancy. That was under the old
rules before the Legislature changed it. So in addition to
his duties as circuit court judge, he was required, as
Supreme Court judge, to travel to Detroit, Kalamazoo,
Adrian, Pontiac, and Lansing. I guess his salary made
up for it because he got $1,500 a year and his travel
expenses. It only lasted for a year and, of course, the
Legislature created the new Court. So Justice G
RAVES
went back to being a circuit judge and for the next ten
years remained a circuit judge until, at the age of
fifty-one, in 1868, he was elected to the Supreme Court.
He was re-nominated in 1875 by both the Republican
and Democratic conventions. I think I’ll say that again.
He was re-nominated in 1875 by both the Republican
and Democratic conventions and was therefore unani-
mously elected to a second term. However, in 1884 he
declined re-nomination and returned to private life for
health reasons.
The four justices were broken up in 1875 when
Justice C
HRISTIANCY
resigned to become a United States
Senator.
C
AMPBELL,
C
HRISTIANCY,
C
OOLEY
, and G
RAVES
, by way of
compliment, came to be called the Big Four. They raised
the standing of Michigan jurisprudence to a high level.
Because of these four jurists, our Supreme Court came
“B
IG
F
OUR”
P
ORTRAIT
P
RESENTATION
cxxvii
to be esteemed by the courts of other jurisdictions as
one of the strongest and one of the best. Today, it is
fitting that this portrait of four of our state’s greatest
justices should hang in the Michigan Hall of Justice,
where the Supreme Court’s history is preserved, while
the work of the Court continues in good order. Thank
you very much.
[At which time the portrait was unveiled.]
J
USTICE
C
AVANAGH:
Boy, that’s nice. We thank all of
you. The Court will certainly treasure that. It will
complement this Hall of Justice.
You know, all of us, I believe, would agree that we live
in different times than those of the men we memorialize
today. Back then, Michigan’s population was under
500,000 people. And, in perusing the handwritten Su-
preme Court journal of 1897 this morning, I noted that
there were fifty-four Supreme Court rules, forty-nine
circuit court rules, and thirty-six chancery rules. Now
you can compare that to this year, 2005 volume of the
Michigan Court Rules, which constitute 458 pages. I’m
pretty certain those justices did not have to wade
through 230 applications for leave every month with
the attendant commissioners’ reports. And I know a
third of their time was not taken up by attorney
grievance, judicial tenure, or enumerable other admin-
istrative matters. However, the gist of the work they
performed has remained with this Court throughout
the years.
There have been 103 justices of the Michigan Su-
preme Court and we gather today to take special heed of
numbers 19, 23, 24, and 25. The last of them left the
Court in 1890 and none lived past 1906. So this four-
some is almost 100 years dead. So, why are we here?
Well, because they are the Big Four and because we are
receiving this beautiful portrait. But, why are they
called the Big Four?
cxxviii 472 M
ICHIGAN
R
EPORTS
Since I came here in 1983, I have had the privilege of
serving with sixteen justices and among them have
been some outstanding judges. So what makes these
four special? The basic outline biographies of Justices
C
AMPBELL,
C
HRISTIANCY,
C
OOLEY
, and G
RAVES
are familiar
to each of us and have been alluded to here earlier in
this session. And, through the good work of the Michi-
gan Supreme Court Historical Society, this material is
now readily available for students and anyone who is
curious. And even more information is available in the
earlier volumes of the Michigan Reports, where the
memorial services for each of these four were tran-
scribed at length. As you would expect, that material is
written in the somewhat overwrought style of the day.
There are places where the praise makes one think we
are reading the eulogies of Abraham, Isaac, Jacob, and
Moses. But, if we shave back the excess verbiage, I think
there are two or three things that explain what made
this foursome special.
The first is that they lived fully the adventure of life.
And they brought to the bench what they had gained in
doing so. Most of us are aware, as Nancy Diehl just
reminded us, that none of the four were born in
Michigan. Each was a native of New York State. One
came as a toddler, but the other three came west,
seeking a newer and better life, and each remained
throughout his life open to the possibilities.
Justice C
AMPBELL
, not content with a thirty-two-year
career on this Court, served at the same time as
professor of the newly created law department at the
University of Michigan.
Justice C
HRISTIANCY
, as was mentioned, was politi-
cally active as an opponent of slavery, had a long career
on this Court, then moved to the United States Senate,
then was minister of Peru.
“B
IG
F
OUR”
P
ORTRAIT
P
RESENTATION
cxxix
And where would one begin with Justice C
OOLEY
.
Newspaper editor, circuit court commissioner, recorder,
which was second in command in the city of Adrian,
political candidate in Toledo. Kind of an interesting
twist. He ran for circuit court and was defeated. First
compiler of the laws of the state of Michigan, Supreme
Court reporter, Supreme Court justice, University of
Michigan law professor, receiver of the Wabash Rail-
road, appointed by the president as chair of the newly
created Interstate Commerce Commission, student of
history, author of the leading treatise on torts, virtual
creator of constitutional law as a separate area of
specialization, respected lecturer on all sorts of topics,
not all of which pertained to law.
And as was mentioned, even Justice G
RAVES
, forced
by health to leave the circuit bench and later the
Supreme Court, was a tireless figure.
As one reads more about these individuals, other
similarities become evident. In the elegiac remarks
offered at their passing, these men were consistently
praised for the simplicity of their personal lives, for
their efficient, unadorned writing styles, and for their
fierce commitment to freedom. The simplicity and vir-
tue with which each lived is illustrated with very
specific tales of occasions when, faced with the oppor-
tunity to take advantage of their position, these men
instead responded with kindness.
With regard to their commitment to freedom, as the
Chief Justice mentioned, remember that they lived in
the 1800s, when the Civil War was a very recent
memory and the newly created state of Michigan was
still forming its identity. Freedom was an unwavering
principle for these four.
I remember a bitterly cold February morning in 1988
when we gathered in a Detroit church to mourn Chief
cxxx 472 M
ICHIGAN
R
EPORTS
Justice G. M
ENNEN
W
ILLIAMS
. And that morning we sang
the hymn “Let Us Praise Great Men.” Again today we
praise great men, and again today we ask what made
them great.
Sometimes we let ourselves off the hook a bit as we
think about those who have done very well in life. We
like to imagine that they had some special gift that we
lack. But there is a very striking element in the remarks
that were made upon the deaths of each of the Big Four.
As speaker after speaker rose to offer extravagant
praise, many still made a very specific point of saying
these men were not geniuses, that they were not
unusually brilliant or gifted men. They were four hard-
working fellows brought together by circumstance and
history and asked to help a fledgling state begin to form
its laws and traditions. They became heroes by doing
the ordinary parts of their job with integrity and with
energy. So we are pleased to accept this portrait today so
that every now and then we will be reminded that that
is really what made them the Big Four. Thank you.
J
USTICE
T
AYLOR:
Thank you all again for coming
together to mark this occasion. We are adjourned.
“B
IG
F
OUR”
P
ORTRAIT
P
RESENTATION
cxxxi
PRESENTATION OF THE PORTRAIT OF
THE HONORABLE THEODORE SOURIS
M
AY
26, 2005
C
HIEF
J
USTICE
T
AYLOR
: Good morning. I’d like to
welcome all of you to this special session of the Supreme
Court in which we will dedicate the portrait of the late
Justice T
HEODORE
S
OURIS
. In particular the Court wel-
comes his wife, Karla Scherer, and we also welcome
Christopher Souris, Stephen Souris, Susan Souris Wil-
son, Allison Scherer Thomas, their spouses, and their
children. In a moment we will hear from Wallace Riley,
president of the Supreme Court Historical Society, who
will serve as our Master of Ceremonies for this event,
and we will have the privilege of listening to Ms.
Scherer and to Richard Reed’s reminiscences of Justice
S
OURIS
.
The French writer, Honoré de Balzac said that adver-
sity tempers the human heart to discover its real worth.
Those words could easily have been written about
Justice S
OURIS,
who at age ten lost his five-year-old
sister, his only sibling, and then at age fourteen suffered
the loss of his father. As Justice S
OURIS
was later to
recall to court historian Roger Lane, the mother and
son left behind were devastated. In addition to the
terrible sorrow of losing a husband and father, there
was great financial strain. Justice S
OURIS
told Roger
Lane that shortly before his death, his father had
invested everything he owned in the new business. All
of that was lost upon his father’s death. There was no
cxxxiii
extended family to offer support. Thanks to the kind-
ness of a family friend who was a physician, his mother
found work, but young T
HEODORE
S
OURIS
quickly be-
came self-supporting.
Entering the University of Michigan at age seven-
teen, he worked hard at a variety of jobs ranging from
moving freight from the railroad station in Ann Arbor
to waiting tables. He joined the Air Force and was called
to active duty in January 1944 with a year and a half of
college credits to that point. Anxious to complete his
education when he returned to the University of Michi-
gan in November 1945, he finished his undergraduate
work and law school on an accelerated basis, getting his
law degree in August of 1949 while still working a
variety of jobs to support himself.
We who now look back in his life are struck by how
that trajectory continued. He was a very young and
eager lawyer involved in the highest levels of the state
Democratic Party, and then a young and extremely
hard-working judge of the Wayne County Circuit Court
to which he was appointed in an effort to resolve that
court’s backlog. He became a Michigan Supreme Court
justice at age thirty-three, the youngest in this Court’s
history and the first of Greek descent.
Almost immediately, he revitalized the Court’s work
habits by insisting on getting briefs and records in all
the cases, not just those that would be assigned to him
for opinions, as was the custom at the time. Before long,
all the other justices followed suit but the Court’s
improved work habits were not his only contribution.
Indeed, far from it, Justice S
OURIS
felt strongly that the
Court had in the past clung to an illusion of infallibility,
rigidly adhering to its prior decisions in the name of
stare decisis without considering whether it was in fact
perpetuating an error. In that regard, he often cited
cxxxiv 472 M
ICHIGAN
R
EPORTS
Parker v Port Huron Hospital, in which Justice S
OURIS
joined the majority in overruling the Supreme Court’s
very longstanding rule that a charity was immune from
suit for the negligence of its employees or agents.
Discussing the case later with historian Lane, he said,
“Yes, I thought with absolute conviction that if the
Court concluded that its prior judgments were wrong in
the development of the common law—you know, I
emphasized the importance of the common law to a
state Supreme Court because that’s the one area of the
law in which the Court legitimately can be creative. It is
the writer of the law. It is the origin of the law. It has the
obligation to declare the law and to modify those
declarations of law when it is persuaded that it has been
wrong in the past.” For that reason, he was sometimes
accused of being a radical justice. He resented that
label—indeed he felt that he took a conservative view of
his role as a justice. As he said to Roger Lane, “That
seems to be a popular misconception of my attitudes as
a justice of the Court. I wasn’t a radical member of the
Court. I was one of the most conservative members of
the Court in the sense that I insisted that the Court go
back to first principles whenever we had a controversy.
For example, involving statutory interpretation. What
was our function? Our function was to determine what
the Legislature intended by the language it used. When
we started substituting our own notions of what the
Legislature intended, then we were overstepping our
bounds and I was frequently critical of the Court for
doing that.”
When Justice S
OURIS
left the Court in 1968 it was to
resume private practice with the same work ethic and
sheer intellectual joy that characterized his life from
high school on. I found a particularly illuminating
passage from his interview with Mr. Lane. He is speak-
ing of how he became active in politics following the
S
OURIS
P
ORTRAIT
P
RESENTATION
cxxxv
war. “I think it was a deeply felt need to participate in
the business of government. Remember we had just
gone through a terrible war. We had returned to campus
with idealistic views of our own role in society. The
opportunities were there and there was a feeling of
participation in a great activity—a very important thing
at that time, and it was very exciting.” That excitement
animated a long, imminently successful, and profoundly
influential career. Perhaps, as Balzac said, the early and
terrible adversity he suffered helped make T
HEODORE
S
OURIS
the great man we honor today. Whatever influ-
ences may have combined to produce T
HEODORE
S
OURIS
,
this Court is richer for his presence on our bench. I now
turn over the proceedings to our Master of Ceremonies,
Wallace Riley, who will introduce the speakers. Mr.
Riley.
M
R
.R
ILEY
: Good morning. Thank you Mr. Chief
Justice. On behalf of the Board of Directors of the
Michigan Supreme Court Historical Society, we wel-
come all the participants to today’s special session to
unveil and dedicate the portrait of Justice T
HEODORE
S
OURIS
. As many of you already know, the tradition of
dedicating official court portraits of former justices is
one that has carried on for well over one hundred years.
The Court’s collection of historical portraits will num-
ber eighty-five after today. Each of the portraits hangs
in one of the Court’s office buildings and offers a
glimpse into the rich history and heritage of the Michi-
gan Supreme Court. The Historical Society is pleased to
participate in today’s presentation ceremony and, with-
out further ado, to unveil the portrait of the Court’s
77th justice are the justice’s grandchildren and they are
listed in your program and I’d like to introduce them to
you now and call upon them to come up to the portrait.
Aleah Stewart-Souris, Damon Stewart-Souris, Elena
cxxxvi 472 M
ICHIGAN
R
EPORTS
Souris, Alexander Souris, Keller Wilson, Claire Wilson,
and Erin Wilson. Do your duty.
[Portrait is unveiled.]
While we’re taking these pictures I would like to
comment on the fact that there is a write-up in the
program about the artist, Susanne Hay, and it’s very,
very interesting. It gives her background and tells
about what her skills and talents were in constructing
and doing this portrait. So you might want to read
about that. I think you guys are done. Thanks. Good
job.
Justice S
OURIS
was on the Court, as you know, for a
full eight-year term and he had several clerks. One of
them will speak to you today, but there are others that
I’d like to mention and, if any of those are present, I
wish they would stand so you can identify them. Lloyd
Fell, I know he’s here. George Ward. Frank Knox.
Sheldon Otis. Some of these are familiar names, I know.
Dominic Carnivelli, who if he isn’t here is probably at
Tiger Stadium. And James Robinson.
Our first speaker today is Mr. Richard Reed. Mr. Reed
earned his law degree from Detroit College of Law in
’61. He became Justice S
OURIS
’s second law clerk, serv-
ing during portions of 1961 and 1962. Entering the
private practice of law in Kalamazoo, Michigan, in 1962,
Mr. Reed maintained contact with T
HEODORE
S
OURIS
during his lifetime and served with him as a member of
the Scope and Correlation Committee of the State Bar
of Michigan. While serving on the Attorney Grievance
Commission, Mr. Reed was one of those responsible for
alerting the Supreme Court to the problems that were
existing on the commission, which led to the Michigan
Supreme Court appointing former Justice S
OURIS
as
special counsel to conduct investigations of the Attor-
ney Grievance Commission. Mr. Reed is a fellow of the
State Bar of Michigan, and most important to us, he is
S
OURIS
P
ORTRAIT
P
RESENTATION
cxxxvii
a member of the Board of Directors of the Michigan
Supreme Court Historical Society. Mr. Reed.
M
R
.R
EED
: Thank you, Mr. Riley. Mr. Chief Justice,
Associate Justices, distinguished citizens and particu-
larly distinguished grandchildren, on behalf of the
Michigan Supreme Court Historical Society, let me
express our sincere appreciation for what you have done
today. You probably don’t know the great anxiety which
has attended board meetings in the past over when this
portrait will be available for dedication. You have
caused a certain calm and contentment in the society by
your actions today.
A brief word about the fact that a mere clerk is
addressing the Court on such an auspicious occasion. I
have attended several portrait presentations and read
the transcript of several others and I can identify no
occasion in which a mere clerk has been asked to speak.
It’s a rather bold move if one thinks about it because
those with whom we work closely and daily are in the
best position to know us quite fully and to tell it like it
was without the base alloy of varnish. So it is, however,
in keeping with Justice S
OURIS
’s temperament and view
of life that it should be told as it is without varnish. But
everyone in this room probably for a short period, and
many people perhaps or some people perhaps for a long
period, will regard this portrait as unusual. It has none
of the trappings of office, and the judge is obviously in
good humor. But it conveys the essence and soul of the
man better than any portrait of him that I have
observed.
He was—notwithstanding his genius, capacity for
tremendous work, and brilliance in writing—basically a
very decent, warm, loving human being. That side of
him is not too frequently observed by persons who
discuss his propensity to tell it like it is, irrespective of
cxxxviii 472 M
ICHIGAN
R
EPORTS
the listener. Let me give you a personal reference, if
you’ll excuse it, that I think typifies something about
the man. He discovered shortly after I began working
for him that his law clerk had a one hour ride each way
back and forth from home to the Detroit College of Law
where his office was located. The school was very
generous in donating two offices, one for him and one
for his secretary, who was his lifelong secretary, and his
clerks. And after about two weeks he said, “You have
this very long ride and we don’t live that far apart. Why
don’t I pick you up in the morning and bring you home
at night.” Now here is a high-powered lawyer, member
of the Supreme Court, extremely busy. He wrote more
than 350 opinions during his 8
1
/
2
years on the bench, in
demand as a speaker, and he wrote prolifically. But he
took time to pick up his law clerk to save him the
one-hour bus ride each way to work. It was that
empathy for everyone that was really the essence of his
life.
I got to meet his family. Christopher, who is here, and
Stephen, who was at that time very young, and Stephen
called me Mr. Weed, to which the judge would break out
in laughter. And after about the second occasion, I
really saw no great humor in the gross mispronuncia-
tion of my name but Justice S
OURIS,
as with many great
minds and great men, was a great teacher. And he
taught not directly, but indirectly and by example. And
the lesson which he was conveying to me at the time
and which I understood later was never be afraid to
laugh at yourself. He would relate stories of everyday
foibles with as much relish as the accomplishments.
He was, as the Chief Justice has indicated, a very
successful trial lawyer. He was asked by the Governor to
take a seat on the Wayne County bench for one year
because there was a large field of candidates running
S
OURIS
P
ORTRAIT
P
RESENTATION
cxxxix
for the position of Judge Moynihan, who had died
shortly before retirement, and the Governor did not
want to make the hard choice and so he said would you
go and be a circuit judge for one year and help clean up
the docket. And he did that. The docket was a great
mess at that time. He was known for having two jury
trials simultaneously. While the first jury was deliber-
ating, the second jury was being selected. And he was
very effective.
He wanted to return to private practice and, as a
matter of fact, the firm’s announcements were printed
and they were being mailed when he received a call
from Governor Williams to meet him. And the Governor
said to him, “I’m going to appoint you, if you will accept,
to a vacancy on the Supreme Court.” This occurred
shortly before New Year’s Day in 1959. The judge
protested. He said, “I’m too young.” And the Governor
responded something to the effect, “You’ll get over it.”
He agreed to accept the appointment and, after it was
announced in the paper and shortly before the first of
the year, he called the Chief Justice, Mr. Justice D
ETH-
MERS
, and he said, “Please send me the briefs and the
records from the cases that are up for argument for the
first few weeks in January 1960.” And the Chief Justice
responded, “You mean the records and briefs in your
case that will be assigned to you?” And he said, “No, I
want all of the records and briefs of all of the cases that
are going to be argued in the next two weeks of
January.” And the Chief Justice said, “Well, we don’t do
that. We only send a copy of the briefs and records to the
judge to whom the opinion is assigned for writing.”
Now, you will recall, those of you and us who practiced
at that time we were required to file nine copies of a
printed brief and nine copies of the record on appeal.
Frequently, with some rare exceptions, only one copy
cxl 472 M
ICHIGAN
R
EPORTS
ever left the clerk’s office except, after the case was
over, one would be sent to the law library. The others
languished until space requirements mandated they be
discarded. Justice S
OURIS
said, “No, I want all of the
briefs,” and all of the records and the first week’s briefs
and records were forwarded to him. He read them over
the New Year’s holiday and he continued to receive
them. And soon other justices were asking for them.
They knew he had the briefs and records, he seemed to
be up on every case, even those that were not assigned
to him, and some very great legal minds—Justice E
D-
WARDS
, Justice S
MITH
, Justice B
LACK
, Justice K
AVANAGH
and others—they all had great legal minds but they
began to ask—except Justice C
ARR
, he was true to
tradition to the end—they began to ask for the briefs
and records.
The same was true of window matters. Now I don’t
know what they are called today, but in 1962 a window
matter was an application for leave to appeal or a
motion and the reason they were called window matters
is that the Court was in the Capitol and the Capitol has
very thick walls and the windows have very wide ledges,
and, as motions and applications would come in, the
clerk would lay them on the window. They were as-
signed, and by rotation, to the judges. Now at this time
there was no Court of Appeals, there was only the
Supreme Court, eight justices and eight clerks. Seven.
Justice C
ARR,
I think, was the justice who didn’t always
have a clerk. He resided just a few blocks from the
courthouse and apparently considered the ability for
quiet reflection on the walks to and from office a
suitable substitute, at least agreeable to him. So there
were eight justices and seven or eight clerks, and these
were assigned in rotation and, again, although nine
copies of a complete filed legal size, but this could be
typed, application with the appropriate portions of the
S
OURIS
P
ORTRAIT
P
RESENTATION
cxli
record would reach the clerk’s office, only one generally
ever left and that was to the judge to whom it was
assigned. And in those days the report on the window
matter, that is yes we should grant leave or no we
shouldn’t, or yes we should grant rehearing, was deliv-
ered orally to the Court by the judge to whom it was
assigned. T
HEODORE
S
OURIS
, age thirty-three, new to the
bench, said, “I want all of the window matter applica-
tions and I want to study them.” And pretty soon he and
Justice E
DWARDS
, and Justice T
ALBOT
S
MITH
, and Justice
B
LACK,
and Justice K
AVANAGH
had agreed that they
would all review the window matters and that they
would write a written report and they would share that
report in advance of conference.
Now there is one other incident that occurred when
this thirty-three-year-old, brilliant, young lawyer be-
came a Supreme Court justice. He arrived in Lansing in
January just before the 5th, the first day of argument,
and he was assigned a desk in a room with Justice
B
LACK
. One room and two desks. Space was at a pre-
mium then. And Justice B
LACK
said, “Tomorrow we
have a case on the docket, it’s Stoliker v State Board of
Canvassers, and I’ve written this opinion”—it was more
than fifty pages, greatly exceeded today’s permissible
brief limit, and he said, “I would like you to review this
opinion and see if you can sign on to it tomorrow
morning.” And Justice S
OURIS
said, “I can’t. I was a
member of the State Board of Canvassers. As a matter
of fact, I recently served as its chairman and I cannot
participate in this decision.” Justice B
LACK
responded,
“Oh, yes you can, don’t let that worry you. It’s a great
opinion.” And he went home that night and he came
back the next morning and before he was sworn in he
said to Justice B
LACK,
“I considered what you said to me
and I can’t.” As a matter of fact, Justice S
OURIS
was so
particular about never conveying even a hint of undue
cxlii 472 M
ICHIGAN
R
EPORTS
influence that he stayed at the Kellogg Center when he
was in Lansing for court sessions so that he would not
encounter litigants, litigants’ attorneys, and lobbyists,
and others in downtown Lansing when he was hearing
cases. So a sense of the bench, his first case, the crier, I
think it was Clyde Sprague, called the first case, Sto-
liker v State Board of Canvassers. Justice S
OURIS
got up
and went into chambers. He would not even give the
appearance of participating in any way, even to the
extent of passively listening to the arguments. And
when, I think, Clyde Sprague came in and said the
argument is over, he came back, took his seat on the
bench, Justice E
DWARDS
leaned over to him and said,
“Did you hear what happened?” And he could sense
that there was some tension in the courtroom, some
feeling of excitement. Justice S
OURIS
said no, and before
Justice E
DWARDS
could explain it to him, the next case
was called. And then during recess he learned that
Justice B
LACK
, as soon as oral arguments were con-
cluded in that case, announced that he had filed his
opinion with the court clerk in sufficient copies so that
one would be available for each member of the press.
Justice S
OURIS
was flabbergasted. He thought it was an
affront to the justices, he thought it was an affront to
the Court, because obviously the opinion had been
written before the oral argument and had been written
without consultation with other members of the Court.
He was convinced that it would be dealt with. The
conference of the justices concluded that day and Jus-
tice B
LACK
’s opinion and its filing with the clerk was
never mentioned. He thought well, tomorrow we’ll take
care of it. The second day, at the conclusion of confer-
ence, Justice B
LACK
’s opinion had not been mentioned.
They came back for the third day of argument and the
third day of conference and at the conclusion, when he
was convinced that no one was going to do anything,
S
OURIS
P
ORTRAIT
P
RESENTATION
cxliii
Justice S
OURIS
said, “Excuse me, I have a motion. I
move that Justice B
LACK
’s opinion that has been filed
with the clerk be stricken from the court records.” That
motion carried 5-3.
Now understand the significance of your grandfa-
ther’s position. He’s thirty-three years old, he’s in his
first case and first series of cases as a Supreme Court
justice. He is in his first weeks as a Supreme Court
justice and he institutes what amounts to a revolution
in the Court. Because if one will read the opinions of the
Court from the ’30s, ’40s, and ’50s, you will find very
few dissents because the Michigan Court at that time
did not function as a true collegiate court. It functioned
for a lot of years, for decades, as a court of eight
individual justices writing opinions with whom other
justices concurred unless it was an unusual case that
struck them and they asked to see the records and the
briefs. That is not an insignificant change. That is a sea
change. Justice S
OURIS,
in a very short period of time
after assuming the bench, was able, by example, to
convince the Court to become a true collegiate appellate
court. The litigants and the citizens of the state re-
ceived a significant benefit and it is not really given the
credence and publicity which it deserves.
Now Justice S
OURIS
spoke here, not here but in the
other chambers, on three different occasions of the
portrait presentation of T
ALBOT
S
MITH,
G
EORGE
E
DWARDS,
and E
UGENE
B
LACK
. And at G
EORGE
E
DWARDS
’s presen-
tation, he referred to Justice E
DWARDS
as one of Plato’s
army of judges and he quoted Plato’s admonition that a
judge should not be young and his guide should be
knowledge and not experience. T
HEODORE
S
OURIS
proved
that Plato was only half right, or perhaps that G.
Mennen Williams was wiser than Plato.
cxliv 472 M
ICHIGAN
R
EPORTS
Justice S
OURIS
was an advocate for the jury system, a
real advocate for the jury system. He proposed that
juries be impounded to make findings of fact in certain
equity cases under certain limited circumstances. When
thinking about my remarks today and thinking about
Justice S
OURIS
’s attitude toward juries, I was put in
mind of something that was written by Richard Feyn-
man, also I think in the 1960s. Professor Feynman was
regarded as one of the world’s greatest mathematical
geniuses and theoretical physicist and Nobel prize win-
ner. He wrote—actually it was in a letter supporting the
application for tenure of the first woman professor at
Cal Tech to be considered for tenure. He wrote some-
thing to this effect, “In physics, rarely is it the case that
the truth is not surrounded by doubt. So much so
should it be in the humanities where in order to be
truth it must be surrounded by doubt.” Justice S
OURIS
had the mind to grasp that profound concept, although
I don’t know if he ever read it. He knew that in law,
under the American system of jurisprudence at least,
truth is not some reference point on a cosmic scale. In
law under the American system of jurisprudence, truth
is best approximated by the careful consideration of the
available evidence by a qualified assemblage of ordinary
citizens. He deplored the reduction of the number of
jurors from twelve to six; he deplored the idea that a
verdict could be less than unanimous.
He wrote many cases, one of the most important that
he wrote was a concurring opinion in the legislative
apportionment decision Scholle v Secretary of State.He
wrote other important decisions and made a great
contribution to the Court in addition to the quiet
revolution which he engineered when he began. And he
resigned from the Court, he resigned before his term
was up. Now there is a lot of folklore as to why he
resigned and I have heard various versions of it from
persons on the Board of Directors of the Historical
S
OURIS
P
ORTRAIT
P
RESENTATION
cxlv
Society whose judgment I otherwise regard and some of
the meanest or less charitable is that he thought he
might lose the election and didn’t want his opponent to
win. Before there is anymore currency added to that
speculation, and I think Karla will address it more in
detail, let me give you my take on it from having spent
a great deal of time, and as much as possible, and I
picked his brain as often as I could, and I asked
interminable questions. As a matter of fact, at one point
our car that we traveled in was a stripped down Ford
with rubber mats and no radio. He began carrying a
portable battery-operated radio mounted on the dash-
board. I’m sure it was to shut me up on occasion. And he
was a member of the Court when there were only eight
justices and seven or eight clerks. No commissioners.
The first commissioner didn’t come on board until
1965, and he knew that the Court was going to change
and it was going to give up the very last vestiges of a
territorial court. It was going to become a true appellate
court. It was going to select the cases that it wanted to
hear that were of significance to the jurisprudence of
the state. And he knew that when the Court was cast
purely in that role, that the opportunity for a split
court, 4-4, or in some cases 3-3, would be devastating,
devastating to the law. There was a case in which he
participated shortly before he retired, where the Court
split evenly. The issue was whether a mandamus should
issue and poor Don Winters, the court clerk, had to
resolve that issue. He didn’t know whether to issue the
mandamus because an equal number of justices sup-
ported it, or refuse it because an equal number opposed
it. And Justice S
OURIS
knew that that condition, a 4-4
split, would be detrimental to the Court, the jurispru-
dence of the state, and he wanted the Court to become
modern as soon as possible. And he knew that by his
resignation that problem would be fixed, and it was so
cxlvi 472 M
ICHIGAN
R
EPORTS
typical of this warm, generous human being that he
would sacrifice in order to establish what he thought
was an important principle. I have to confess he also
knew he could make a handsome living practicing law,
which he succeeded to do. And his clients numbered
some of the major corporations in the United States,
and he was sought after for some of the most difficult
problems, including disputes between upper echelons of
management and other upper echelons of management
in cases where it was thought that some official had
done something detrimental to the interests of the
corporation or perhaps even unethical. He was called in
on the most difficult, knotty problems and he resolved
them just as was referenced before, the issues with the
Grievance Commission. He was an outstanding, won-
derful, brilliant genius and he has deserved the right to
laugh with us. We loved him.
M
R
.R
ILEY
: Thank you very much, Dick. You can see
what a great addition to the Michigan Supreme Court
Historical Society it is to have Mr. Reed on our board.
He is literally a fountain of information about history.
We’re going to have to reserve to another time Don
Leonard’s rebuttal on reducing the Court from eight to
seven justices. Today is not the day to do it, but thank
you, Dick, for that marvelous presentation and review
of all the delightful things about Judge S
OURIS
. He truly
was a great man and a great justice.
Now I would like to introduce to you Mrs. Karla
Scherer, Justice S
OURIS
’s wife for nearly ten years from
September of ’92 until his death in June of 2002. Ms.
Scherer funded and founded the Karla Scherer Foun-
dation in 1989. Its purpose is to provide scholarships for
women wishing to obtain undergraduate or graduate
degrees in economics or finance and she currently
serves as Chairperson of the Karla Scherer Foundation.
S
OURIS
P
ORTRAIT
P
RESENTATION
cxlvii
Ms. Scherer is a frequent speaker on corporate gover-
nance matters in her own right and on problems
confronting women in management. Karla.
K
ARLA
S
CHERER
: Thank you, Mr. President. Honored
justices of the Michigan Supreme Court, family, and
friends of Justice S
OURIS
, I want to extend my warmest
appreciation for your participation this morning.
You should all know, as does certainly Wally Riley,
how difficult it was to get Ted to agree to having his
portrait painted. Wally’s entreaties predated 1997, the
date the portrait was begun in Paris by the young
German painter, Susanne Hay. Following Ted’s resigna-
tion from the Court in 1968 until his death in 2002, he
practiced law and under no circumstances did he want
his portrait to hang in the Michigan Supreme Court
during that time, feeling quite correctly that should he
be arguing a case before the Court, it could perhaps give
him an unfair advantage. Wally concurred, and once
Ted made the decision to proceed, he was also quite
definite that the portrait not display the usual accou-
trements of judicial power—the black robes, the gavel,
the law books. Elegant and reserved, admired for his
intelligence, he nonetheless possessed warm humor, a
wonderful deep laugh, and extraordinary sensitivity for
the voiceless, the powerless among us. And so he told
Susanne that he wanted to be painted relaxed and
smiling, in a business suit standing behind his office
desk chair with the vivid Greek blue background to
reflect his heritage as a first generation Greek-
American. In short, he wanted the portrait to reflect the
happiness that he felt at that time in his life.
Ted and I made several trips to Paris for his sittings
and those memories for me are tied up in this portrait
—climbing the stairs to Susanne’s 8th floor atelier on
the Rue Affre, Ted holding her newborn son, Gaspard,
cxlviii 472 M
ICHIGAN
R
EPORTS
while she worked on details. Susanne was initially
reluctant to take the commission. She was classically
trained at the École Nationale Supérieure des Beaux
Arts and preferred greater artistic freedom than por-
traiture generally allows. However, over the years, Ted
and I had collected several oils and drawings, as had our
daughter Allison, so she ultimately agreed.
He firmly insisted that rather than raising money for
its commission, he pay for this unconventional and very
personal portrait himself. In his final letter to me and to
the children written one month before he died, Ted in
his usual cryptic fashion requested a presentation
“without the usual elaborate ceremony customary on
such occasions. If you can sneak it through the back
door of the Court, so much the better.”
I must tell you that it is with sadness and some
reluctance that I part with this portrait today. Ted
bequeathed me a life interest in it and it has hung in our
home and most recently in my office since its comple-
tion. However, Ted has eight grandchildren and I felt
that they should have as full an understanding of their
grandfather and his contribution as can be conveyed by
an event such as today’s dedication.
Who was this man whose likeness we are celebrating?
His formative years were certainly not easy ones. His
only sibling, a younger sister, died when he was ten
years old. His father died when he was fourteen, quite
suddenly, leaving Ted and his mother in financially
perilous circumstances. He worked as many jobs as he
could in high school—two paper routes a day, in the
produce department of the local grocery store (they still
remember him there). He was admitted to the Univer-
sity of Michigan at age seventeen with two very modest
scholarships. In Ann Arbor it was once again an ex-
hausting schedule balancing academics and work to
S
OURIS
P
ORTRAIT
P
RESENTATION
cxlix
support himself, work that included loading railroad
freight cars (this was a man who weighed 125 pounds at
that time), waiting tables at a sorority house for meals,
running blueprints for a professor in the engineering
school.
After a year and a half, he was called to active duty in
the Army Air Force where he was assigned to the Air
Cadet Program, a program for pilots, navigators, and
bombardiers. The Air Force had selected what it
deemed to be the cream of the crop of available talent,
moving them around the country for their training in
and out of the classroom. Ted had the opportunity
during this time to work during his free time at the
Greenville, Mississippi base Courts and Boards office.
And it was here that he came face to face with some of
the uglier aspects of race relations in the south at that
time. A black airman, home on leave from his base in
Alaska, was arrested and jailed for months by the
sheriff of Greenville, without the Air Force being noti-
fied. They simply assumed that he was AWOL. Ted and
the young lieutenant in charge managed to free this
man, a serviceman they had never before met, at great
risk to their personal safety. Both men were transferred
away from the base soon thereafter, but the official
stated reason had nothing to do with what they had
done for this man. It was an experience he never forgot
and it had a powerful influence on him as both a lawyer
and a judge.
In late 1945 he was released from the service and
returned to the University of Michigan where, as Jus-
tice T
AYLOR
has told you, he completed what normally
would have been a six-year curriculum, three years of
undergraduate study and three years of law school, in
5
1
/
4
years. With money still tight, he went to school year
round without a break. It was in Ann Arbor that he met
cl 472 M
ICHIGAN
R
EPORTS
Mennen Williams while studying in the basement of the
law library late one night. Mennen had come down to
use the men’s room. This chance meeting was the
beginning of a lifelong friendship and a deep mutual
respect that ultimately led to Ted’s appointment to the
Supreme Court by then Governor Williams more than a
decade later.
I’d like to speak briefly about those court years,
about some of the personal and philosophical highlights
for Ted. In 1960 he was a judge on the Wayne County
Circuit Court when Justice J
OHN
V
OELKER
a/k/a Robert
Traver, author of the best seller Anatomy of a Murder,
resigned and returned to his home in the U.P.to
continue writing. Unfortunately, Mr. Traver did not
come up with another best seller. When Governor
Williams offered him the appointment to the Supreme
Court, Ted was as surprised as everyone else. Only
thirty-three years old, he would be the first American of
Greek heritage to hold this position on any state Su-
preme Court. When he arrived in Lansing, he found a
Court that had been criticized by the noted American
jurist and Dean of the Harvard Law School, Roscoe
Pound, as “having a bad eminence.” Michigan Supreme
Court decisions, as Dick has referred to, had been
one-man—yes they were all men on the Court at that
time—had been one-man decisions. In other words, the
workload of the Court was divided among the justices
and each justice was assigned on those cases in advance
of oral argument. Until 1955 there were very few
dissents and even fewer concurrences. According to
Ted, everyone signed each other’s opinions without
bothering to review the records in those opinions.
Justice T
ALBOT
S
MITH
and later Ted, when he joined the
Court, began to question this practice. He was fre-
quently referred to as belonging to the so-called liberal
wing of the Court along with Justices K
AVANAGH,
S
MITH,
S
OURIS
P
ORTRAIT
P
RESENTATION
cli
B
LACK,
and E
DWARDS
. Ted did not consider himself a
radical member of the Court. Indeed, he believed that
he was one of the most conservative. He insisted that
the Court go back to first principles whenever they had
a controversy involving statutory interpretation. Listen
to his words on the subject. “What was our function?
Our function was to determine what the Legislature
intended by the language it used. When we started
substituting our own notions of what the Legislature
intended, then we were overstepping our bounds, and I
was frequently critical of the Court for doing that.”
In no sense, however, did Ted view the law as static.
When I was a graduate student at the University of
Chicago, I wrote a paper on the famous MacPherson v
Buick case, a liability case heard in the New York Court
of Appeals in 1916 before Judge Benjamin Cardozo. I
assiduously avoided all discussion with Ted about this
project. In fact, I didn’t even know of his admiration for
Judge Cardozo. What Judge Cardozo did in that case
was to reconcile existing legal principles in a new way,
citing, case by case, previous decisions that had sup-
ported an interpretation that was consistent with mod-
ern technology, in this instance the automobile. In the
area of common law, Ted felt it was incumbent on the
Court to modify or change its prior judgments if under-
lying social facts had changed. He felt that was the one
area in which the Court could legitimately be creative
and it was undoubtedly this belief that inflamed his
critics, giving rise to charges of radicalism. He told
Roger Lane in a 1990 interview and I quote, “When we
dealt with the common law I felt that our role was much
less restricted than it was when we were simply inter-
preting statutory law. When we were applying common
law, we were in the arena of judge-made law and we had
the obligation, in other words the power, to change that
law when we were convinced that injustice was being
clii 472 M
ICHIGAN
R
EPORTS
done by perpetuation of the rule the court itself had
announced earlier in time.”
Ted resigned from the Court in 1968 when he had to
make a decision to run again for another full term. A
change in Michigan’s Constitution allowed him to do so
without upsetting the balance of the Court. He was
forty-two years old and wanted to get off the Court as
early as 1963 to return to the practice of law. It was as
a practicing lawyer that I met him. I had the opportu-
nity to see him in action, to observe the intense dedica-
tion that he gave to the cases that he agreed to take. He
loved the heat of battle and frequently told me that a
successful lawyer is a warrior at heart. He was a totally
loyal, trusted counselor to his long list of clients, and his
aura of reasoned calm was reassuring to those whose
future literally hung in balance. I remember telling him
early on in my case that a certain conclusive point had
to be self-evident in a court of law because it was
manifestly just. He smiled and very patiently answered
that there is no such thing as obvious justice. Only good
lawyers make it so.
On behalf of my husband and our family, I would like
to thank you for honoring him with this dedication. I
think I can speak for them when I say that we are glad
that we could openly and with enormous pride bring his
portrait through the front door of this Court today.
Thank you.
M
R
.R
ILEY
: Karla, I’m sure that Ted would have been
very proud of your personal tribute and your tribute on
behalf of the family to him.
It is true that shortly after the society was formed
and we took an inventory of our portraits, we discov-
ered that one of those that we wanted to acquire at the
earliest possible date was that of Justice S
OURIS
.I
respected his decision not to have it painted and cer-
S
OURIS
P
ORTRAIT
P
RESENTATION
cliii
tainly not to have it hung while he was still practicing,
but he later amended that to not have it hung while he
was alive. I respected that. I never agreed and would not
agree that it should come in the back door. It belongs
and is entitled to the tributes that it received today
because tributes are really tributes to him which he
would have rejected but which he is entitled and those
who loved him are entitled to hear. So, with that in
mind, I am very happy that the society was finally able
to acquire the portrait of Justice S
OURIS
and I’m equally
pleased that he is smiling about what we did. So thank
you very much.
That concludes our part of the proceedings. I under-
stand that there is a reception that will be held on the
ground floor of this building and that everyone who is
present is invited. I understand also that the Court has
scheduled, and is going to hold, public hearings, so the
Court won’t be able to attend, but we thank you for
giving us this time this morning for allowing us to
schedule and to schedule it at a time and place when not
only Karla and Dick Reed were available, but also the
grandchildren. Thank you.
C
HIEF
J
USTICE
T
AYLOR
: Thank you, Mr. Riley. On
behalf of the Court, I thank you for this portrait of
Justice S
OURIS
. I also thank Ms. Scherer and Mr. Reed,
who have shared with us their own portrait of memo-
ries, tributes to an extraordinary life. This portrait will
now become not only a part of this Court’s gallery of
historic portraits, but a reminder of one of the most
distinguished members of the Michigan bench and bar.
As a final matter, I would like to recognize two of our
former colleagues who have joined us today, Justice
J
OHN
F
ITZGERALD
and Justice C
HARLES
L
EVIN
. We thank
cliv 472 M
ICHIGAN
R
EPORTS
them for joining us, and I also want to recognize our
great friend, former Attorney General Frank Kelly. We
are now adjourned.
S
OURIS
P
ORTRAIT
P
RESENTATION
clv
S
UPREME
C
OURT
C
ASES
In re NOECKER
Docket No. 124477. Argued October 6, 2004 (Calendar No. 9). Decided
February 1, 2005.
The Judicial Tenure Commission (JTC) filed a complaint with the
Supreme Court against James P. Noecker, a judge of the 45th
Circuit Court, alleging judicial misconduct and conduct prejudicial
to the administration of justice. A master found that the allega-
tions of misconduct were credible. The JTC adopted the master’s
report and unanimously recommended that the Supreme Court
remove the respondent from the bench. The JTC, in a split
decision, recommended that the respondent be required to pay the
costs that the JTC incurred in prosecuting the matter. Three
members concurred and stated that the respondent should addi-
tionally be required to pay the costs incurred for visiting judges to
hear the respondent’s docket during his interim suspension. Three
members concurred with the recommendation of removal but not
with assessment of any costs.
In an opinion by Justice K
ELLY
, joined by Chief Justice T
AYLOR
,
Justice W
EAVER
in parts I through VI, and Justices C
ORRIGAN
and
Y
OUNG
, the Supreme Court held:
There is ample support for the master’s findings of fact and
conclusions of law. There was sufficient evidence to find the respon-
dent guilty of judicial misconduct. The respondent left the scene of
an automobile accident, was under the influence of alcohol when he
drove his car into a store, attempted to deceive the police about the
accident in an effort to avoid criminal prosecution, and misrepre-
sented the cause of the accident to the Judicial Tenure Commission
and the master to avoid professional discipline. Respondent’s sig-
nificant misrepresentations of the truth made in testimony and to
the public, and the publicity surrounding the incident, have seri-
ously eroded the public’s confidence in him and in the judiciary. The
respondent’s conduct warrants his removal from the bench.
The master did not err in allowing an expert witness to testify
regarding conduct typical of an alcoholic and the expert’s personal
interaction with the respondent.
The determination whether the assessment of costs is an
appropriate sanction under the Michigan Constitution must be left
2005] In re N
OECKER
1
for another case. In this case, the respondent should not be
required to pay costs because he had no notice of the standards for
imposing them.
Justice Y
OUNG
, joined by Chief Justice T
AYLOR
and Justice
C
ORRIGAN
, concurring, wrote separately to explain why he believes
that removal from office is the appropriate sanction in this case.
The respondent is unfit for judicial office because he initially lied
to avoid responsibility for his action and, more damaging, contin-
ued to lie under oath before the Judicial Tenure Commission. This
Court’s primary concern in determining an appropriate sanction is
to restore and maintain the dignity of the judiciary and to protect
the public. The respondent lied under oath during the course of
the Judicial Tenure Commission investigation. When a judge lies
under oath, the judge has failed to internalize one of the central
standards of justice and becomes unfit to sit in judgment of others.
Lying under oath by a judge goes to the very core of judicial duty
and demonstrates the lack of character of such a person to be
entrusted with judicial privilege.
Justice W
EAVER
, concurring in the removal of Judge Noecker
from the bench, wrote separately to state that rather than rely on
a lack of notice or standards, costs should not be assessed in this
matter because it appears that the Court has no constitutional
authority to assess a judge the costs of a Judicial Tenure Commis-
sion proceeding against the judge.
Justice M
ARKMAN
, concurring, stated that he concurred with the
results of the majority opinion and much of its analysis. The
Supreme Court’s power of review de novo does not prevent the
Court from according proper deference to the processes of the
Judicial Tenure Commission and its recommendation of a sanc-
tion. The commission has conscientiously considered the factors
set forth in In re Brown, 461 Mich 1291 (2000), for determining an
appropriate sanction and adequately articulated the bases for its
findings. The commission identified a reasonable relationship
between its findings and the recommended discipline and, there-
fore, is entitled to deference by the Supreme Court.
Justice C
AVANAGH
, dissenting, stated that the evidence does not
support the decision by the majority to permanently remove the
respondent from office. There is no proof that the respondent lied
about the accident. There is inadequate support for the finding of
the Judicial Tenure Commission that the respondent’s admitted
alcoholism caused his perceived administrative failures. The re-
spondent should be suspended, without pay, for fifteen months.
Costs should not be imposed on the respondent in light of the
2 472 M
ICH
1[Feb
commission’s admission that its request for reimbursement is
unprecedented and unsupported by the court rules.
Paul J. Fischer and Thomas L. Prowse for the Judi-
cial Tenure Commission.
Fraser Trebilcock Davis & Dunlap, P.C. (by Peter D.
Houk and Brian P. Morley), for James P. Noecker.
K
ELLY,
J. This appeal is from the recommendation of
the Judicial Tenure Commission (JTC) that respondent
45th Circuit Judge James P. Noecker be removed from
office and required to pay the costs of his prosecution.
We determine that respondent should be removed from
office but that costs should not be assessed against him.
I. FACTUAL BACKGROUND
On March 12, 2003, respondent was involved in a
motor vehicle accident in Sturgis, Michigan. The vehicle
he was driving turned from a road into the parking lot
of a store, the Klinger Lake Trading Post. According to
witnesses, respondent’s vehicle neither accelerated nor
decelerated. Rather, it maintained a speed of approxi-
mately three to five miles an hour. The vehicle hit the
corner of the store, causing significant damage to the
building and to the inventory in the store.
Respondent emerged from the vehicle, entered the
store, and asked if anyone had been injured. The store’s
proprietor, Mrs. Pankey, was upset and repeatedly
stated that she wanted someone to find her husband,
who was ice fishing on a local lake. Although respon-
dent lacked any information to assist him in the search
for Mr. Pankey beyond the name of the lake, respondent
left the scene of the accident. He claimed that he did so
to help Mrs. Pankey.
2005] In re N
OECKER
3
O
PINION OF THE
C
OURT
No one indicated where on the lake Mr. Pankey was
fishing. Respondent believed that he was near a fishing
access, but was unsure where the access was located.
Mrs. Pankey testified that respondent did not know
what her husband looked like. He did not know what
vehicle Mr. Pankey was driving. He did not even know
the color of the coat Mr. Pankey was wearing.
Respondent testified that, in the course of his search,
he first drove to the lake. He got out of the car to look
around and saw two objects he presumed were people
on the far side of the lake. He then spent several
minutes considering whether he could walk across the
ice. Deciding that it was unsafe, he returned to his
vehicle.
Respondent said that he then stopped at another
point along the lake, walked down to the water’s edge,
and tried unsuccessfully to find an access point. He saw
five or six people in a cove and again considered
whether it was safe to walk out on the ice. Deciding that
it was unsafe, he drove farther around the lake to a
gated area known as Camp Fort Hill. Unable to enter,
he started back to the store, but decided instead to drive
to his residence.
On arriving home, respondent told his wife about the
accident, then called Mrs. Pankey. He testified that he
wanted to ask Mrs. Pankey if she had heard from her
husband, and, if not, he wanted to know the location of
the lake’s access point. He testified that he never got a
chance to ask those questions, because as soon as he
identified himself, Mrs. Pankey began screaming hys-
terically. She kept repeating, “You get back here.” He
told her he would return.
Respondent then learned that the state police were
en route to his house to speak with him. He decided not
to return to the store. He testified that his wife took his
4 472 M
ICH
1[Feb
O
PINION OF THE
C
OURT
blood pressure. The systolic reading was 220. Respon-
dent did not call his doctor or the emergency room.
Rather, he testified, he poured and drank three to five
ounces of vodka. He testified that he knew that the
police were coming to speak with him about the acci-
dent. But he stated that the effect that his consumption
of alcohol would have on the officers’ investigation of
his car accident did not trouble him at the time.
When the police arrived at his home, respondent
told them that he had consumed three to five ounces of
vodka after returning from the search for Mr. Pankey.
Respondent agreed to take a preliminary breath test.
The breath test was administered approximately two
hours after the accident. The reading was 0.10.
1
A state trooper who investigated the accident at the
scene, Craig Wheeler, testified that he was concerned
that alcohol may have been a factor. Sergeant Steven
Barker testified that there are generally three reasons
people leave the scene of an accident: their license has
been suspended, there is an outstanding arrest war-
rant for them, or they drank alcohol before the acci-
dent.
Sergeant Barker accompanied Trooper Wheeler to
respondent’s home on the night of the accident. He
testified that respondent appeared to move away from
him whenever he got close. One of the officers testified
that, when he confronted respondent about an apparent
inconsistency in his statement, respondent commented,
“I know you are in a position to fry me.” In addition to
the testimony of Trooper Wheeler and Sergeant Barker,
1
This value refers to the amount of alcohol in an individual’s system.
At the time of the accident, Michigan law made it unlawful for someone
to operate a vehicle where “[t]he person has an alcohol content of 0.10
grams or more per 100 milliliters of blood, per 210 liters of breath, or per
67 milliliters of urine.” MCL 257.625(1)(b).
2005] In re N
OECKER
5
O
PINION OF THE
C
OURT
several witnesses to the accident testified that it ap-
peared that respondent had been drinking at the time of
the accident.
Respondent gave conflicting stories about how the
accident had occurred. One explanation was that he
intended to depress the brake pedal, but accidentally
pushed the accelerator when his shoe slipped. Another
explanation was that, as he approached the building, he
intended to brake, but he forgot that his foot was not on
the brake pedal. Instead, he depressed the accelerator,
which caused the vehicle to shoot forward and strike
the building.
II. PROCEEDINGS BELOW
The events occurring after the March 12 accident,
including respondent’s conflicting explanations to the
media, caused the JTC to issue a formal complaint
against respondent.
The complaint may be summarized as alleging the
following misconduct:
1. Persistent use of alcohol leading to a variety
of violations of the Michigan Constitution, the
Michigan Court Rules, and the Canons of Judicial
Conduct.
2. Violations of the law and making false state-
ments to the police regarding the events sur-
rounding a motor vehicle accident on March 12,
2003.
3. Making false statements to the JTC.
The complaint may be summarized as alleging that
respondent’s conduct constituted:
1. Misconduct in office, as defined by Const
1963, art 6, § 30, as amended, and MCR 9.205;
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2. Conduct clearly prejudicial to the adminis-
tration of justice, as defined by Const 1963, art 6,
§ 30, as amended, and MCR 9.205;
3. Habitual intemperance, as defined by Const
1963, art 6, § 30, as amended, and MCR 9.205;
4. Persistent failure to perform judicial duties,
as defined by Const 1963, art 6, § 30, as amended,
and MCR 9.205;
5. Persistent neglect in the timely performance
of judicial duties, contrary to MCR 9.205(B)(1)(b);
6. Irresponsible or improper conduct that
erodes public confidence in the judiciary, contrary
to the Code of Judicial Conduct, Canon 2(A);
7. Conduct involving impropriety and the ap-
pearance of impropriety, contrary to the Code of
Judicial Conduct, Canon 2(A);
8. Failure to respect and observe the law, con-
trary to the Code of Judicial Conduct, Canon 2(B);
9. Conduct violative of MCR 9.104(A)(1), (2),
and (3) in that such conduct,
(i) is prejudicial to the proper administration of
justice,
(ii) exposes the legal profession or the court to
obloquy, contempt, censure, or reproach, and
(iii) is contrary to justice, ethics, honesty, or
good morals.
Retired Circuit Judge John N. Fields was appointed
master in the case, heard evidence, and made forty
specific findings of fact. On reviewing all the evidence, he
concluded that respondent violated the court rules and
canons listed above.
The JTC adopted the master’s report and unani-
mously recommended that this Court remove respon-
dent from the bench. In addition, in a split decision, it
recommended that respondent be required to pay the
costs that the JTC incurred in prosecuting the matter.
2005] In re N
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Three JTC members concurred. They thought that
respondent should also be required to pay the costs
incurred for visiting judges to hear respondent’s docket
during his interim suspension. A separate JTC
concurrence/dissent agreed with the recommendation
for removal, but argued that costs should not be as-
sessed against respondent.
2
III. ISSUES ON APPEAL
Respondent asks this Court to reject the JTC’s rec-
ommendation. He asserts that there is insufficient
evidence to find him guilty of judicial misconduct. He
also argues that the master erred in allowing the
introduction of improper expert evidence. Finally, re-
spondent contests the recommendation that he be re-
quired to pay the costs of his prosecution.
IV. RELEVANT STANDARDS
We review the JTC’s factual findings and its disci-
plinary recommendations de novo. In re Chrzanowski,
465 Mich 468, 478-479; 636 NW2d 758 (2001). The
standard of proof in a judicial discipline proceeding is a
preponderance of the evidence. In re Loyd, 424 Mich
514, 521-522; 384 NW2d 9 (1986).
V. THE COMMISSION’S RECOMMENDATION
In making its recommendation, the JTC applied the
factors enunciated in In re Brown, 461 Mich 1291,
1292-1293 (2000). It listed each factor, relating it to the
circumstances of the case. It explained how it weighed
2
We shall refer to these opinions as they are titled. The concurring
opinion will be referred to as the “JTC concurrence.” The opinion
objecting to requiring respondent to pay the costs of his prosecution will
be referred to as the “JTC concurrence/dissent.”
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each factor for or against respondent. Furthermore, the
JTC considered the fact that respondent has extensive
prior involvement with the judicial disciplinary system,
having been admonished on various occasions for fail-
ing to timely complete court work.
The JTC concluded that respondent’s failure to be
truthful regarding the automobile accident and its
aftermath justifies his removal from office. It found
that respondent misled the police and later provided
inconsistent accounts of the events. Also, it found that
he failed to offer credible testimony when under oath in
the public hearing.
Furthermore, the JTC indicated that docket delays
caused by respondent had a deleterious effect on the
administration of justice in St. Joseph County. The JTC
acknowledged that a number of attorneys testified in
respondent’s favor. But it noted that their testimony did
not alter the fact that the court docket and the public
suffered because of respondent’s conduct. The JTC
concluded that respondent is guilty of repeated serious
misconduct that requires his removal from office.
3
A. THE SUFFICIENCY OF THE EVIDENCE
The power to discipline a judge resides exclusively in
this Court, but it is exercised on recommendation of the
JTC. Const 1963, art 6, § 30. Respondent’s complaints
with regard to the master’s factual findings amount to
a disagreement about the weight and credibility that
should be afforded to the various witnesses. The master,
as trier of fact, was in the best position to assess the
credibility of the witnesses. “Our power of review de
3
The examiner indicated at oral argument that “[I]t’s fair to say that
if the crash had never taken place we would not necessarily be making a
recommendation for removal.... I think the gravamen of this is the
lying, and that truly should be the focus....”Weagree.
2005] In re N
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novo does not prevent us from according proper defer-
ence to the master’s ability to observe the witnesses’
demeanor and comment on their credibility.” In re
Loyd, supra at 535.
On review of the entire record, we agree with the
master’s findings of fact and conclusions of law. Respon-
dent left the scene of an automobile accident. Eyewit-
nesses testified that respondent appeared intoxicated at
the time of the accident. As a former prosecutor and a
judge, respondent knew that he should have stayed at
the scene of the accident. It is not credible that, after
being made aware that the police were on their way to
question him about his accident, he consumed alcohol.
We conclude that respondent was under the influence
of alcohol when he ran his car into the store. We
conclude that he attempted to deceive the police about
this fact because he was motivated by a desire to avoid
criminal prosecution. We conclude that he continued to
misrepresent the cause of the accident to the JTC and
the master, motivated in addition by a desire to avoid
professional discipline.
4
The preponderance of the evidence justifies a finding
that respondent was guilty of judicial misconduct, not-
withstanding the exculpatory evidence on which he
relies. Nothing in the record suggests that Judge Fields
erred in his findings and conclusions in any manner
that would change the outcome of the proceedings. To
the contrary, we believe that Judge Fields fairly and
objectively presided over this case. Therefore, we agree
4
One of respondent’s more peculiar explanations for the cause of the
accident occurred during his testimony before the master. There, respon-
dent testified that he entered his vehicle through the passenger door and
operated the vehicle while straddling the console because he had “mud on
his shoes.” Respondent indicated to the master that he “used his left foot
to accelerate and brake because his right foot remained straddled over
the center console.”
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with the JTC that respondent’s significant misrepre-
sentations of the truth made in testimony and to the
public warrant disciplinary action.
B. THE QUALIFICATIONS OF THE EXPERT WITNESS
Respondent argues that the examiner’s expert, Har-
vey Ager, M.D., was not qualified to testify. Dr. Ager is a
psychiatrist who testified about the conduct typical of
an alcoholic.
MRE 702 provides the rule for expert testimony:
If the court determines that scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experi-
ence, training, or education, may testify thereto in the form
of an opinion or otherwise if (1) the testimony is based on
sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of
the case.
Respondent argues that Dr. Ager’s failure to publish,
present, or conduct peer review on the topic of alcohol-
ism in the recent past disqualifies him from testifying
as an expert. He is mistaken.
The master noted that, although Dr. Ager had not
recently published or made presentations on the topic,
there was evidence that he
is a graduate of Wayne State University. That he is a board
certified psychiatrist. That he is a former codirector of the
alcoholism unit at Detroit Memorial Hospital....[T]hat he
has treated hundreds of individuals with respect to alco-
holism. . . . I do find that his experience in this area in
addition to his general medical training is such that he is
qualified as an expert to testify and render an opinion
regarding conduct consistent with alcoholism.
2005] In re N
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The master ruled that Dr. Ager could testify as long as
his testimony conformed with the requirements of MRE
702. He noted that “there has been nothing here to
suggest that this sort of testimony would not be based
upon reliable principals [sic] and methods.”
Dr. Ager’s testimony conformed with the require-
ments of MRE 702. On the basis of his experience, he
testified about what conduct is consistent with that of
an alcoholic. He also testified about his personal inter-
action with respondent in a ninety-minute interview.
Contrary to respondent’s assertions, Dr. Ager did not
testify outside the bounds of his knowledge. He did not
state that respondent’s alcoholism caused his docket
delays. He testified simply about the behavior one could
expect from an alcoholic.
Dr. Ager did not view respondent’s work product and
did not comment on the quality of respondent’s work.
Nor was Dr. Ager introduced to testify regarding re-
spondent’s work product. The fact that Dr. Ager was
unfamiliar with the work of respondent and the extent
of Dr. Ager’s experience with alcoholics go to the weight
to be given his testimony. They are not determinative of
whether his testimony conformed with the require-
ments of MRE 702.
We find that Dr. Ager qualified as an expert witness.
His testimony complied with MRE 702 and, therefore,
was admissible.
VI. APPROPRIATE DISCIPLINE
Having determined that the JTC proved the charges
by a preponderance of the evidence, we must assess
whether the recommended discipline is appropriate to
the offense. “Our primary concern in determining the
appropriate sanction is to restore and maintain the
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dignity and impartiality of the judiciary and to protect
the public.” In re Ferrara, 458 Mich 350, 372; 582 NW2d
817 (1998).
Central to our decision to remove respondent is our
conclusion that respondent misled the police, the pub-
lic, and the JTC about his drinking on March 12, 2003.
Respondent’s insistence that he was sober at the time of
the accident is not credible. His misrepresentations
about being sober when he caused an automobile acci-
dent that carried civil and criminal consequences are
antithetical to his judicial obligation to uphold the
integrity of the judiciary. R espondent’s repeated decep-
tion and the publicity surrounding the incident have
seriously eroded the public’s confidence in him and in
the judiciary.
Unfortunately, we have on other occasions dealt with
a judge’s dishonesty. In In re Ferrara, supra, this Court
determined that Judge Andrea J. Ferrara’s conduct in
misleading the master after her original alleged miscon-
duct surfaced justified her removal from office. During
the hearing on the complaint, Judge Ferrara twice
attempted to introduce a fraudulent letter into evi-
dence. We determined that her misrepresentations and
deception eroded the public’s trust and confidence in
the judiciary. We found it necessary to remove Judge
Ferrara from the bench in order to restore public trust
and confidence. Id. at 373.
Likewise, the nature of respondent’s lies, and the
apparent motives behind them, have seriously harmed
the integrity of the judiciary. Respondent’s continued
deception before the JTC has seriously undermined the
public’s faith that judges are as subject to the law as
those who appear before them. His continued dishon-
esty with regard to the events of March 12, 2003,
justifies his removal from office.
2005] In re N
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Furthermore, respondent’s persistent docket prob-
lems, for which he was admonished on several occa-
sions, violate the standards of judicial conduct. Were
this proceeding solely about his docket problems, we
would not find removal an appropriate form of disci-
pline. However, respondent’s deception surrounding
the March 12 accident described herein warrants the
harsh sanction of removal from office.
VII. THE ASSESSMENT OF COSTS
The Michigan Constitution created the Judicial Ten-
ure Commission and outlines the power of the Michigan
Supreme Court to discipline judges:
On recommendation of the judicial tenure commission,
the supreme court may censure, suspend with or without
salary, retire or remove a judge for conviction of a felony,
physical or mental disability which prevents the perfor-
mance of judicial duties, misconduct in office, persistent
failure to perform his duties, habitual intemperance or
conduct that is clearly prejudicial to the administration of
justice. The supreme court shall make rules implementing
this section and providing for confidentiality and privilege
of proceedings. [Const 1963, art 6, § 30(2).]
Pursuant to this constitutional provision, the Court
has promulgated court rules governing judicial disci-
pline proceedings. As the JTC noted, no specific court
rule or statute provides for imposing costs in judicial
disciplinary matters.
We have imposed costs in several cases in the past.
The JTC majority relies on those cases in support of its
assessment of costs here. But those cases are not on
point. In In re Thompson,
5
costs were recommended and
ordered, but the judge did not contest them. Likewise,
5
470 Mich 1347 (2004).
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in In re Trudel,
6
costs were ordered. By then, however,
Judge Trudel had resigned from the bench. In In re
Cooley,
7
Judge Cooley consented to the commission’s
decision and recommendation, including the assess-
ment of costs. In the present action, respondent did not
consent to the JTC’s recommendation, nor has he
resigned. Rather, he has challenged the JTC’s findings
and its recommendation that costs be assessed.
We agree with the JTC concurrence/dissent that a
respondent is entitled to notice of what conduct will
subject the respondent to the assessment of costs. Past
decisions of this Court have not provided notice because
they were issued without explanation of the standards
used in assessing costs.
We agree with the JTC concurrence/dissent’s obser-
vation:
Respondent Noecker cannot be said to have been given
notice of the standards to be applied and the type of
expenses that could be assessed in this case.... The
imposition of actual costs has been extremely rare in the
history of reported cases. The commission has not set
standards for the imposition of costs until today. Therefore,
imposition of costs in this case, if the Supreme Court
believes they are authorized by law, would violate the spirit
of In re Brown.
Where a judge has been given no notice of the
standards for imposing costs, the judge should not be
made to pay them. We leave for another time the
determination whether the assessment of costs is con-
sistent with the Michigan Constitution. In this case,
respondent should not be required to pay the costs of
his prosecution because he had no notice of the stan-
dards for imposing them.
6
468 Mich 1243 (2003).
7
454 Mich 1215 (1997).
2005] In re N
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We have opened an administrative file to consider the
constitutional issue and the standards to be applied in
the event costs can be assessed in these matters. ADM
2004-60.
VIII. CONCLUSION
After a careful examination of the evidence and an
evaluation of the findings of fact, we conclude that
removal of respondent from the bench is warranted.
We hereby order respondent removed from office.
Pursuant to MCR 7.317(C)(3), the clerk is directed
immediately to issue an order to that effect. No costs
will be assessed.
T
AYLOR
, C.J., and C
ORRIGAN
and Y
OUNG
, JJ., concurred
with K
ELLY
,J.
W
EAVER
, J., joined in parts I through VI.
Y
OUNG,
J. (concurring). I fully concur in the majority
opinion. I write separately, however, to explain why I
believe removal to be the appropriate sanction in this
case.
The purpose of Judicial Tenure Commission proceed-
ings is not the punishment of the judge, but to maintain
the integrity of the judicial process and to protect the
citizenry from corruption and abuse. As such, this
Court’s primary concern in determining the appropri-
ate sanction is to restore and maintain the dignity and
impartiality of the judiciary and to protect the public.
1
After reviewing the evidence in this case, I believe
that the evidence establishes respondent was intoxi-
1
In re Jenkins, 437 Mich 15; 465 NW2d 317 (1991); In re Ferrara, 458
Mich 350; 582 NW2d 817 (1998).
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cated at the time of the collision. Respondent left the
scene of the accident and constructed several inconsis-
tent explanations in order to avoid criminal responsi-
bility for his intoxicated driving. More egregious, re-
spondent also lied under oath during the course of the
Judicial Tenure Commission investigation, presumably
in order to avoid judicial disciplinary consequences.
Our judicial system has long recognized the sanctity
and importance of the oath.
2
An oath is a significant act,
establishing that the oath taker promises to be truthful.
As the “focal point of the administration of justice,”
3
a
judge is entrusted by the public and has the responsi-
bility to seek truth and justice by evaluating the testi-
mony given under oath. When a judge lies under oath,
he or she has failed to internalize one of the central
standards of justice and becomes unfit to sit in judg-
ment of others.
Certainly, Judicial Tenure Commission proceedings
are intended to be remedial, not penal.
4
The vast
majority of misconduct found by the Judicial Tenure
Commission is not fatal; rather, it reflects oversight or
poor judgment on the part of a fallible human being
who is a judge. However, some misconduct, such as
lying under oath, goes to the very core of judicial duty
and demonstrates the lack of character of such a person
to be entrusted with judicial privilege.
2
See June v School Dist No 11, 283 Mich 533, 537; 278 NW 676 (1938)
(An oath is “ ‘[a]n external pledge or asseveration, made in verification of
statements made, or to be made, coupled with an appeal to a sacred or
venerated object, in evidence of the serious and reverent state of mind of
the party, or with an invocation to a supreme being to witness the words
of the party, and to visit him with punishment if they be false.’ ”) (citation
omitted).
3
In re Callanan, 419 Mich 376, 386; 355 NW2d 69 (1984).
4
In re Probert, 411 Mich 210; 308 NW2d 773 (1981).
2005] In re N
OECKER
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OUNG
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Where a respondent judge readily acknowledges his
shortcomings and is completely honest and forthcoming
during the course of the Judicial Tenure Commission
investigation, I believe that the sanction correspond-
ingly can be less severe. However, where a respondent is
not repentant, but engages in deceitful behavior during
the course of a Judicial Tenure Commission disciplinary
investigation, the sanction must be measurably greater.
Lying under oath, as the respondent has been adjudged
to have done, makes him unfit for judicial office.
It is for these reasons that I support respondent’s
removal from office.
T
AYLOR
, C.J., and C
ORRIGAN
, J., concurred with Y
OUNG
,
J.
W
EAVER,
J. (concurring). I agree that Judge Noecker
should be removed from the bench and join parts I-VI of
the majority opinion. The accident, Judge Noecker’s
conduct following the accident, and his attempts to
deceive the public and the police with incredible expla-
nations of the accident are clearly prejudicial to the
administration of justice and undermine the public’s
trust and confidence in the judiciary. Therefore, re-
moval is the appropriate discipline.
I also concur in the result that Judge Noecker should
not be assessed costs, but for different reasons. Rather
than rely on a lack of notice or standards as the reason
not to assess costs, I would not assess costs because it
appears to me that this Court has no constitutional
authority to assess the judge for the costs of the
proceedings. Const 1963, art 6, § 30 provides that “the
supreme court may censure, suspend with or without
salary, retire or remove a judge....” Nothing in this
constitutional provision gives this Court any authority
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EAVER
,J.
to discipline the judge by assessing the judge the costs of
the Judicial Tenure Commission proceedings against
him or her.
M
ARKMAN,
J. (concurring). I concur with the results of
the majority opinion, as well as with much of its
analysis. Had I been a member of the Judicial Tenure
Commission (JTC), I might possibly have reached a
different conclusion in terms of an appropriate sanc-
tion, for there is much with which I agree in the
dissenting opinion. In particular, I agree with the dis-
senting opinion that more egregious behavior on the
part of judges has, in the past, been met with less
sanction than permanent removal. Post at 21. Further,
I believe that the thirty-five years of honorable public
service on the respondent’s part deserve more consid-
eration in the formulation of a sanction than, to my eye,
has been given here.
Nonetheless, I concur with the majority opinion
because, as it correctly notes, “ ‘[o]ur power of review
de novo does not prevent us from according proper
deference’ ” to the processes of the JTC. Ante at 9-10
(citation omitted). While the majority emphasizes the
deference due the “ ‘master’s ability to observe the
witnesses’ demeanor and comment on their credibil-
ity,’ ”
1
id., I would also emphasize the deference due the
commission in its recommendation of a sanction. In In
re Brown, 461 Mich 1291 (2000), this Court directed the
commission to more clearly articulate its standards in
determining an appropriate judicial sanction, and we
set forth a number of non-exclusive factors to be con-
sidered in this process. We stated in this regard:
1
I concur with the majority in its conclusion that the master “fairly
and objectively” presided over this case.
2005] In re N
OECKER
19
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ONCURRING
O
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ARKMAN
,J.
As a constitutionally created state agency charged with
making recommendations to this Court concerning matters
of judicial discipline, the JTC is entitled, on the basis of its
expertise, to deference both with respect to its findings of
fact and its recommendations of sanction. However, such
deference cannot be a matter of blind faith, but rather is a
function of the JTC adequately articulating the bases for
its findings and demonstrating that there is a reasonable
relationship between such findings and the recommended
discipline.
***
...Where standards of this sort have been promulgated
and reasonably applied to individual cases, this Court owes
considerable deference to the JTC. [461 Mich at 1292-
1293.]
The commission here, in my judgment, has conscien-
tiously evaluated the factors set forth in Brown, as well
as additional factors, and has “adequately articulated
the bases for its findings.” Although personal consider-
ation of these factors might have led me in the direction
of the sanction set forth in the dissenting opinion, I
cannot say that there is no “reasonable relationship
between [the commission’s] findings and the recom-
mended discipline.” Rather, I believe that the commis-
sion has identified such a relationship and therefore is
entitled to deference by this Court.
It was proper for this Court to promulgate the Brown
factors so that we could derive the “additional informa-
tion necessary to perform [our] constitutional function
of judicial discipline under Const 1963, art 6, § 30(2).”
Brown, supra at 1291. Having promulgated these fac-
tors, and the commission having reasonably considered
them, “proper deference” is now required on our part.
While such deference is that which is owed to any
executive or administrative agency, the constitutional
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ARKMAN
,J.
status of the commission, Const 1963, art 6, § 30,
underscores the necessity of such deference in matters
of judicial discipline. On the basis of such deference, I
concur with the conclusions of the majority opinion.
C
AVANAGH,
J. (dissenting). Viewing all the alleged
conduct at issue here, I cannot conclude that respon-
dent’s removal is warranted. Much more egregious
behavior on the part of judges has been met with far less
sanction than permanent removal. See In re Hathaway,
464 Mich 672; 630 NW2d 850 (2001) (suspending the
judge for six months without pay for the judge’s gross
mishandling of three cases and overall “lack of indus-
try”); In re Brown (After Remand), 464 Mich 135; 626
NW2d 403 (2001) (suspending the judge for fifteen days
without pay after finding that the judge misused the
prestige of his office in addition to having four previous
instances of misconduct); In re Moore, 464 Mich 98,
132-133; 626 NW2d 374 (2001)
1
(characterizing the
judge’s “pattern of persistent interference in and fre-
quent interruption of the trial of cases; impatient,
discourteous, critical, and sometimes severe attitudes
toward jurors, witnesses, counsel, and others present in
the courtroom; and use of a controversial tone and
manner in addressing litigants, jurors, witnesses, and
counsel” as warranting a six-month suspension without
pay); and In re Bennett, 403 Mich 178; 267 NW2d 914
(1978) (refusing to remove the judge from the bench,
despite finding that he engaged in “demonstrably seri-
ous” intemperance, instead imposing a one-year sus-
pension without pay).
In In re Seitz, 441 Mich 590; 495 NW2d 559 (1993),
on which the Judicial Tenure Commission (JTC) relies,
1
I concurred, writing that I would have imposed the sanction of nine
months without pay recommended by the Judicial Tenure Commission.
2005] In re N
OECKER
21
D
ISSENTING
O
PINION BY
C
AVANAGH
,J.
this Court removed the judge from office at the JTC’s
recommendation. I find that case easily distinguishable.
Judge Seitz exhibited such unfathomable conduct to-
ward his colleagues and staff for over ten years that it
took this Court twenty-seven pages to delineate it. Id. at
594-621. He also engaged in felonious conduct by in-
stalling a wiretap on his phone. Id. at 597-599. More-
over, he abused his contempt power by deliberately
ordering a person to ignore an administrative order of
the chief judge and follow Judge Seitz’s contradictory
order instead. When the person refused to do so, Judge
Seitz had him arrested and brought to the courtroom.
There, the judge performed a mock hearing devoid of
due process and had the person jailed. Id. at 599-604.
Judge Seitz also had unprofessional personal relation-
ships with his staff. Id. at 604-611.
The JTC points to one paragraph in Seitz, supra at
622, that pertained to the judge’s failure to file reports
with the State Court Administrative Office as support
for its removal recommendation. But Judge Seitz’s
failures in that regard paled in comparison to his other
conduct, and it is impossible to believe that his failure
to file several reports alone would have resulted in his
removal from the bench. Similarly here, where the two
allegations are that respondent lied about the accident
and failed to properly manage his docket, the JTC’s
removal request is extremely harsh.
The JTC relies on two cases, In re Ferrara, 458 Mich
350; 582 NW2d 817 (1998), and In re Ryman, 394 Mich
637; 232 NW2d 178 (1975), for the proposition that
lying, by itself, is sufficient to remove respondent from
the bench. But in both cited cases, more was at issue.
For instance, in Ferrara, the misconduct charges
stemmed from the revelation of eleven tapes on which
the judge was recorded lashing horrific racial and ethnic
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AVANAGH
,J.
slurs at or about people in both her personal and
professional life. This Court found that irrespective of
the tapes, Judge Ferrara’s conduct surrounding the
investigation was grounds for removal. For instance,
Judge Ferrara told the media and the JTC that the
tapes were fabricated, and she attempted to admit a
fraudulent letter twice, the second time after her first
attempt was rejected. Additionally, the judge’s conduct
during the formal hearing was so “ ‘inappropriate,
unprofessional, and demonstrat[ive of] a lack of respect
for the judicial discipline proceedings,’ ” that this Court
found the incidents too numerous to recount. Ferrara,
supra at 370 (citation omitted).
Because of the severe and obvious nature of the
judge’s lies and her continuing disrespect for the judi-
ciary, this Court concluded that removal was warranted,
stating:
We adopt the commission’s recommendation and find
respondent’s untruthful and misleading statements to the
public and press, her attempt to commit a fraud on the
Court by twice attempting to introduce the Avela Smith
letters, and her unprofessional and disrespectful conduct
during each stage of the proceedings to constitute miscon-
duct in violation of the court rules and judicial canons. [Id.
at 372.]
Similarly, Ryman, supra, involved issues of backdat-
ing and improper signing of deeds, false testimony,
allowing a court clerk to perform a magistrate’s duties,
and continuing the practice of law after becoming a
judge. Ryman, supra at 642-643. In my opinion, neither
Ferrara nor Ryman supports the JTC’s assertion that a
suspected lie is sufficient to remove a judge from office.
In sum, I do not believe there is support for perma-
nently removing respondent from office. It seems that
where a judge has been removed from office at least in
2005] In re N
OECKER
23
D
ISSENTING
O
PINION BY
C
AVANAGH
,J.
part for lying, the fact that the suspected lies were
indeed lies was uncontroverted. Here, though, while
respondent’s story about the accident is undeniably
suspicious, there is no proof that respondent lied.
Without more than speculation that respondent was
being untruthful in denying that he drank before he
drove, the most severe punishment hardly seems fit-
ting.
Additionally, I do not think that the JTC adequately
supported a finding that respondent’s admitted alcohol-
ism caused his perceived administrative failures. The
logic behind the asserted causal connection was flawed:
even though respondent admits abusing alcohol, it does
not necessarily follow that his shortcomings on the job
are related to that abuse. The expert testimony did
nothing to assist in establishing the link between alco-
hol abuse and work performance. If anything, Dr.
Miller’s testimony blurred the connection by pointing
to a possible obsessive-compulsive disorder as the cause
of respondent’s work-related problems.
In any event, respondent had plausible explanations
for at least some of his work-related behavior. And no
one has ever seen respondent drinking or drunk on the
job, including his long-time clerk. No attorney testified
negatively about respondent’s behavior in court, and
some offered reasons for case delays that were totally
unrelated to respondent. And notably, the JTC admit-
ted at oral argument that its inclusion of these work-
related shortcomings were but “a footnote” to the
gravamen of its investigation, the accident.
I, therefore, cannot accept the JTC’s recommenda-
tion of removal. Although I believe that its finding that
the crash was alcohol-related is supported on the
record, a much lesser sanction is warranted, and the
sanction should be tailored to that particular event. As
24 472 M
ICH
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AVANAGH
,J.
such, I would suspend respondent, without pay, for a
period of fifteen months, until May 1, 2006.
In light of my conclusions, I do not see grounds for
imposing the costs of the JTC’s prosecution on respon-
dent, particularly in light of its admission that its
request for reimbursement is unprecedented and un-
supported by the court rules.
2005] In re N
OECKER
25
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ISSENTING
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PINION BY
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AVANAGH
,J.
PEOPLE v JENKINS
Docket No. 125141. Decided February 1, 2005. On application by the
prosecution for leave to appeal, the Supreme Court, in lieu of
granting leave, reversed the decision of the Court of Appeals and
remanded the case to the circuit court.
Shawn L. Jenkins was charged in the Washtenaw Circuit Court with
several felonies. The court, Donald E. Shelton, J., after an eviden-
tiary hearing, determined that certain evidence was obtained
while the defendant was seized for purposes of the Fourth Amend-
ment before a reasonable suspicion to support an investigative
stop had formed, suppressed the evidence, and dismissed the case.
The Court of Appeals, B
ANDSTRA
,P.J., and B
ORRELLO
,J.(H
OEKSTRA
,
J., dissenting), in an unpublished opinion per curiam, issued
November 18, 2003, and on the specific facts of this case, affirmed
the suppression and the consequent dismissal after concluding
that the seizure of the defendant occurred when the police officer
asked the defendant for identification (Docket No. 240947). The
prosecution sought leave to appeal.
In an opinion per curiam, signed by Chief Justice T
AYLOR
, and
Justices W
EAVER
,C
ORRIGAN
,Y
OUNG
, and M
ARKMAN
, the Supreme
Court held:
The police officer did not seize the defendant by requesting and
receiving his identification in a consensual meeting. The Fourth
Amendment was not implicated until the officer seized the defen-
dant by hindering his attempt to leave while a check on the Law
Enforcement Information Network (LEIN) was ongoing. By that
time, the officer had a reasonable suspicion to make an investiga-
tory stop because the defendant was in an area known for crime
and illicit drugs, a woman had challenged the defendant’s
unconsented-to presence on the front steps of her dwelling, the
defendant appeared to be nervous about the LEIN check and
attempted to walk away from the officer, and various persons
invited the defendant into their homes to offer him protection
from further police questioning. Considering the totality of the
circumstances, the officer had a reasonable suspicion sufficient to
warrant transforming the consensual encounter into an investiga-
26 472 M
ICH
26 [Feb
tory stop and briefly detaining the defendant until the completion
of the LEIN check that disclosed an outstanding warrant for the
defendant’s arrest.
Reversed and remanded to the circuit court for reinstatement
of the charges and for further proceedings.
Justice C
AVANAGH
, joined by Justice K
ELLY
, dissenting, stated
that the defendant was detained at the point when the LEIN check
was initiated. At that point, the officers did not have a reasonable
suspicion of criminal activity. By confiscating the defendant’s
identification card and beginning an investigation without the
defendant’s consent, the officers turned the otherwise voluntary
encounter into a detention. By their conduct the officers effectively
conveyed to the defendant that he was not free to leave. The
defendant was illegally seized without reasonable suspicion or
probable cause. The judgment of the Court of Appeals should be
affirmed.
S
EARCHES AND
S
EIZURES —
F
OURTH
A
MENDMENT —
C
ONSENSUAL
S
TOP —
I
NVESTI-
GATORY
S
TOP —
R
EASONABLE
S
USPICION
.
The Fourth Amendment is not implicated when an officer, in the
ordinary course of his duties, asks a person to provide identifica-
tion; therefore, a police officer is not required to have a reasonable
suspicion of criminal activity before requesting identification (US
Const, Am IV; Const 1963, art 1, § 11).
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, Brian L. Mackie, Prosecuting Attor-
ney, and Mark Kneisel, Assistant Prosecuting Attorney,
for the people.
Lloyd E. Powell, Chief Public Defender, and Timothy
R. Niemann, First Assistant Public Defender, for the
defendant.
P
ER
C
URIAM
. This case requires us to consider when
defendant’s consensual encounter with a police officer
was transformed into an investigatory stop, which gives
rise to Fourth Amendment protections and must be
supported by reasonable suspicion. Defendant argues
that the officer seized him without reasonable suspicion
to do so. The trial court agreed, granting defendant’s
2005] P
EOPLE V
J
ENKINS
27
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motion to suppress the incriminating evidence later
found by the officer and dismissing the pending
charges. The Court of Appeals affirmed.
We conclude that defendant was not “seized” within
the meaning of the Fourth Amendment until after the
totality of the circumstances gave the officer a reason-
able suspicion that defendant had been engaged in
criminal behavior. Accordingly, the trial court erred
when it granted defendant’s motion. We reverse the
judgment of the Court of Appeals and remand this case
to the trial court for reinstatement of the charges
brought against defendant and for further proceedings.
I. BACKGROUND
During the evening of August 23, 2001, the Ann
Arbor Police Department received a complaint regard-
ing a party in progress in the common area of a housing
complex on North Maple Road. Officers Geoffrey Spick-
ard and Jeff Lind were dispatched to the housing
complex, which was known to the police as a high crime
and drug area. Upon their arrival, they found a gather-
ing of fifteen to twenty people drinking and talking
loudly. Defendant and another man were seated on
stairs leading to one of the housing units.
Officer Spickard approached defendant, and the two
engaged in a general conversation about the party. At
that point, a woman emerged from the attached hous-
ing unit and, using profane language, asked defendant
who he was and why he was seated on her porch. After
hearing this, Officer Spickard asked defendant if he
lived in the housing complex. Defendant said that he did
not, and Officer Spickard asked to see defendant’s
identification. When defendant handed over his state
identification card, Officer Spickard pulled out his per-
sonal radio and started to place a call to the Law
Enforcement Information Network (LEIN).
28 472 M
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Defendant’s behavior immediately changed.
1
He be-
came obviously nervous and made furtive gestures
toward a large pocket on the side of his pants. He began
to walk away, despite the fact that Officer Spickard still
held his identification card and was speaking to him.
2
Several residents of the housing complex called out
invitations for defendant to enter their homes.
At that point, Officer Spickard and his partner
walked alongside defendant, encouraging him to wait
for the results of the LEIN inquiry. When defendant
did not stop, Officer Spickard placed a hand on defen-
dant’s back and told him that he was not free to leave.
The LEIN inquiry revealed an outstanding warrant
for defendant’s arrest. As Officer Spickard was placing
defendant in handcuffs, a gun fell from defendant’s
waistband to the ground.
II. PROCEDURAL HISTORY
Defendant was charged with carrying a concealed
weapon, MCL 750.227; possession of a firearm by a
1
The dissent fails to note these changes in defendant’s behavior. Post at
38. The dissent may view these facts as irrelevant but, when the governing
Fourth Amendment principles are correctly applied, these changes in
defendant’s behavior support the officers’ ultimate decision to seize the
defendant.
2
This fact is also omitted from the dissent’s analysis. Thus, while the
dissent concludes that no reasonable person would walk away under the
circumstances, post at 41, this view was obviously not shared by the
defendant, who walked away “under those circumstances.”
That Justice C
AVANAGH
finds our reference to the record “enig-
matic[]” and “befuddl[ing],” post at 41 n 9, demonstrates the dissent’s
belief that we are entitled to rewrite the events underlying this appeal
with an unrealistic legal formalism. It is only with a lawyer’s armchair
detachment that the dissent can hypothesize about what a “reasonable
person” would do while ignoring the actions of the individual who
actually observed the officers’ conduct and whose liberty was actually at
stake.
2005] P
EOPLE V
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ENKINS
29
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felon, MCL 750.224f; and possession of a firearm during
the commission of a felony (felony-firearm), MCL
750.227b. He moved to suppress the evidence on Fourth
Amendment grounds and sought dismissal of the
charges.
The trial court held an evidentiary hearing at which
both Officer Spickard and defendant testified. The trial
court considered Officer Spickard’s testimony and de-
termined that, for purposes of the Fourth Amendment,
defendant was “seized” when he was asked for identi-
fication. In reaching this conclusion, the trial court
relied on Officer Spickard’s testimony that he believed
that defendant was not free to leave at that point. The
trial court concluded that the officer did not have a
reasonable suspicion to support such an investigative
stop. It granted defendant’s motion to suppress evi-
dence and dismissed the case.
A divided Court of Appeals panel affirmed.
3
The
majority agreed with the trial court that Officer Spick-
ard seized defendant when he asked defendant for
identification.
4
It concluded that the seizure was not
supported by a reasonable suspicion because defendant
was seated in a public area, was not engaged in the
conduct for which the officers were summoned, and
“forthrightly” answered the officer’s questions. As a
result, the majority held that defendant’s Fourth
Amendment rights were violated and that the trial
court properly granted defendant’s motion to suppress
the evidence.
3
Unpublished opinion per curiam, issued November 18, 2003 (Docket
No. 240947).
4
The majority criticized the trial court’s reliance on Officer Spickard’s
subjective belief that defendant was not free to leave once he had been
asked to produce identification, but concluded that there was objective
evidence as well to support this conclusion. We disagree.
30 472 M
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The dissenting judge, on the other hand, determined
that the initial encounter, including Officer Spickard’s
request for defendant’s identification, did not consti-
tute an investigatory stop. The dissent further con-
cluded that subsequent events gave rise to a reasonable
suspicion of possible criminal activity and entitled Of-
ficer Spickard to transform the encounter into an
investigatory stop.
The prosecutor seeks leave to appeal in this Court.
After hearing oral argument from both parties on the
prosecution’s application for leave to appeal, we have
determined that the judgment of the Court of Appeals
must be reversed and that this matter must be re-
manded to the trial court for reinstatement of the
charges against defendant and further proceedings.
III. STANDARD OF REVIEW
This Court reviews a trial court’s factual findings in
a suppression hearing for clear error. People v Custer,
465 Mich 319, 325-326; 630 NW2d 870 (2001). But the
“[a]pplication of constitutional standards by the trial
court is not entitled to the same deference as factual
findings.” People v Nelson, 443 Mich 626, 631 n 7; 505
NW2d 266 (1993). Application of the exclusionary rule
to a Fourth Amendment violation is a question of law
that is reviewed de novo. Custer, supra at 326.
IV. ANALYSIS
The United States Constitution and the Michigan
Constitution guarantee the right of persons to be secure
against unreasonable searches and seizures. US Const,
Am IV; Const 1963, art 1, § 11.
5
5
Cf. Harvey v Michigan,469Mich1,6n3;664NW2d 767 (2003).
2005] P
EOPLE V
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ENKINS
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Under certain circumstances, a police officer may
approach and temporarily detain a person for the pur-
pose of investigating possible criminal behavior even
though there is no probable cause to support an arrest.
Terry v Ohio, 392 US 1, 22; 88 S Ct 1868; 20 L Ed 2d 889
(1968). A brief detention does not violate the Fourth
Amendment if the officer has a reasonably articulable
suspicion that criminal activity is afoot. Custer, supra at
327; People v Oliver, 464 Mich 184, 192; 627 NW2d 297
(2001); Terry, supra at 30-31. Whether an officer has a
reasonable suspicion to make such an investigatory stop
is determined case by case, on the basis of an analysis of
the totality of the facts and circumstances. Oliver,
supra at 192. A determination regarding whether a
reasonable suspicion exists “ ‘must be based on com-
monsense judgments and inferences about human be-
havior.’ ” Id. at 197 (citation omitted).
Of course, not every encounter between a police
officer and a citizen requires this level of constitutional
justification. A “seizure” within the meaning of the
Fourth Amendment occurs only if, in view of all the
circumstances, a reasonable person would have believed
that he was not free to leave.
6
People v Mamon, 435
6
Justice C
AVANAGH
recognizes that this inquiry is an objective one, but
asserts that “an officer’s subjective intent is relevant to the extent that
it may have been conveyed to the defendant by the words or actions of the
officer.” Post at 41. Justice C
AVANAGH
relies on a proposition that secured
only two votes in United States v Mendenhall, 446 US 544, 554 n 6; 100
S Ct 1870; 64 L Ed 2d 497 (1980). Also, he appears to misunderstand the
meaning of this passage. Mendenhall simply recognizes that an officer’s
subjective intent may be relevant if it is objectively manifested. In other
words, it restates the principle that only objective conduct and circum-
stances are relevant for Fourth Amendment purposes.
The dissent errs, therefore, by asserting that Officer Spickard’s
subjective beliefs are relevant without determining whether those sub-
jective beliefs were, in fact, objectively manifested. Instead, the dissent
“presume[s]” that the officer’s beliefs were apparent to defendant.
32 472 M
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Mich 1, 11; 457 NW2d 623 (1990). When an officer
approaches a person and seeks voluntary cooperation
through noncoercive questioning, there is no restraint
on that person’s liberty, and the person is not seized.
Florida v Royer, 460 US 491, 497-498; 103 S Ct 1319; 75
L Ed 2d 229 (1983) (plurality opinion).
Here, Officer Spickard’s initial encounter with defen-
dant was consensual. Officer Spickard did not seize
defendant when he asked whether defendant lived in
the housing complex, nor did he seize defendant when
he asked for identification. No evidence indicated that
Officer Spickard told defendant at this juncture to
remain where he was or that defendant was required to
answer the officer’s questions.
Asking such questions to elicit voluntary information
from private citizens is an essential part of police
investigations. Hiibel v Sixth Judicial Dist Court of
Nevada, 542 US 177; 124 S Ct 2451; 159 L Ed 2d 292
(2004). “In the ordinary course a police officer is free to
ask a person for identification without implicating the
Fourth Amendment.” 542 US ___; 124 S Ct 2458; 159 L
Ed 2d 302; see also Royer, supra at 501. As the United
States Supreme Court has recognized, “[w]hile most
citizens will respond to a police request, the fact that
people do so, and do so without being told they are free
not to respond, hardly eliminates the consensual nature
of the response.” Immigration & Naturalization Service
v Delgado, 466 US 210, 216; 104 S Ct 1758; 80 L Ed 2d
247 (1984).
This summary of governing Fourth Amendment
principles demonstrates that the Court of Appeals ma-
Post at 42. Assuming arguendo that we are entitled to insert our
presumptions into the record, Justice C
AVANAGH
’s presumption is
disproved by the fact that defendant himself walked away from the
officers during the LEIN check.
2005] P
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jority erred when it analyzed the initial conversation
between Officer Spickard and defendant, and Officer
Spickard’s request for identification, as if the protec-
tions of the Fourth Amendment were implicated. The
Fourth Amendment was not implicated until Officer
Spickard actually hindered defendant’s attempt to leave
the scene, thereby “seizing” him within the meaning of
the Fourth Amendment. Specifically, this “seizure” oc-
curred when Officer Spickard followed defendant as he
tried to walk away, orally discouraged him from leaving,
and, finally, put a hand on his back and told him to wait
for the results of the LEIN inquiry. This point—when
Officer Spickard physically hindered defendant’s depar-
ture and instructed him to stay in the officer’s
presence—is the earliest at which a reasonable person
might have concluded that he was not free to leave.
By this point, however, Officer Spickard had a rea-
sonable suspicion to make an investigatory stop. First,
the officer knew that a female resident had challenged
defendant’s unconsented-to presence on her front
porch. Second, when defendant saw that Officer Spick-
ard was initiating a LEIN inquiry, he immediately
began to act nervously and reached toward his pocket.
7
Third, defendant attempted to walk away from the
officer, apparently so intent on leaving that he was
willing to lose possession of his identification card.
8
Fourth, although defendant did not live in the area,
various people invited him into their homes, offering
7
This Court and the United States Supreme Court agree that “ ‘ner-
vous, evasive behavior is a pertinent factor in determining reasonable
suspicion.’ ” Oliver, supra at 197, quoting Illinois v Wardlow, 528 US
119, 124; 120 S Ct 673; 145 L Ed 2d 570 (2000).
8
Presence in a high crime area coupled with unprovoked flight can also
give rise to a reasonable suspicion to support an investigatory stop.
Oliver, supra at 197.
34 472 M
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him protection from further police questioning.
9
Con-
sidering the totality of these circumstances, Officer
Spickard had a reasonable suspicion sufficient to war-
rant transforming the consensual encounter into an
investigatory stop and briefly detaining defendant until
the LEIN inquiry could be completed.
V. CONCLUSION
The Court of Appeals erred when it affirmed the trial
court’s conclusion that defendant’s Fourth Amendment
rights were violated and that the incriminating evi-
dence produced by the investigative stop in this case
should be suppressed. We reverse the judgment of the
Court of Appeals and remand this case to the trial court
for reinstatement of the charges against defendant and
for further proceedings consistent with this opinion.
T
AYLOR
, C.J., and W
EAVER,
C
ORRIGAN,
Y
OUNG
, and
M
ARKMAN
, JJ., concurred.
C
AVANAGH,
J. (dissenting). Despite recognizing that a
police officer must have a reasonably articulable suspi-
cion that criminal activity is afoot before detaining a
person, today’s majority incorrectly identifies the point
at which defendant was seized to justify a detention
based on suspicions formed after the detention oc-
curred. Because defendant was seized without reason-
able suspicion, and because the Fourth Amendment
expressly prohibits using after-acquired suspicions to
justify a seizure, Florida v JL, 529 US 266, 271-272; 120
S Ct 1375; 146 L Ed 2d 254 (2000), I respectfully
dissent.
9
An experienced officer could infer that these bystanders had reason to
know that defendant desired to avoid further police scrutiny. This
inference adds to the quantum of evidence supporting the conclusion that
Officer Spickard had reasonable suspicion to detain defendant.
2005] P
EOPLE V
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The Search and Seizure Clause of both the United
States Constitution and the Michigan Constitution
1
protects individuals against unreasonable searches and
seizures conducted by governmental actors. Whren v
United States, 517 US 806, 809-810; 116 S Ct 1769; 135
L Ed 2d 89 (1996); People v Shabaz, 424 Mich 42, 52;
378 NW2d 451 (1985). Before detaining an individual, a
police officer must have a particularized and objective
basis for suspecting criminal activity by the particular
person detained. Shabaz, supra at 59. An “inchoate and
unparticularized suspicion or ‘hunch’ ” is an insuffi-
cient basis for seizing a person. Terry v Ohio, 392 US 1,
27; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Rather, the
officer must have at least “a particularized suspicion,
based on an objective observation, that the person
stopped has been, is, or is about to be engaged in
criminal wrongdoing.” Shabaz, supra at 59. “As long as
the person to whom questions are put remains free to
disregard the questions and walk away,” there has been
no Fourth Amendment violation. United States v Men-
denhall, 446 US 544, 554; 100 S Ct 1870; 64 L Ed 2d 497
(1980). But at the moment that person is restrained, he
is seized. Terry, supra at 16.
Generally, “ ‘a person has been “seized” within the
meaning of the Fourth Amendment only if, in view of all
the circumstances surrounding the incident, a reason-
able person would have believed that he was not free to
leave.’ ” California v Hodari D, 499 US 621, 627-628;
111 S Ct 1547; 113 L Ed 2d 690 (1991), quoting
Mendenhall, supra at 554. Where a seizure by show of
authority is alleged, rather than a seizure by physical
force, the test “is an objective one: not whether the
citizen perceived that he was being ordered to restrict
1
US Const, Am IV; Const 1963, art 1, § 11.
36 472 M
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his movement, but whether the officer’s words and
actions would have conveyed that to a reasonable per-
son.” Hodari D, supra at 628.
Interestingly, the majority concludes that defendant
was not seized until the officers physically restrained
defendant after he tried to walk away. But the majority
ignores that a seizure can also occur by a police officer’s
show of authority. The majority states, “When an officer
approaches a person and seeks voluntary cooperation
through noncoercive questioning, there is no restraint
on that person’s liberty, and the person is not seized.”
Ante at 33, citing Florida v Royer, 460 US 491, 497-498;
103 S Ct 1319; 75 L Ed 2d 229 (1983). I agree that the
initial questioning and the officers’ request to see
defendant’s identification were part of a consensual
citizen-police encounter. But the majority fails to ad-
dress the next critical event—the LEIN
2
check—and
instead jumps to events that occurred while the LEIN
check was in progress.
On the evening in question, Officer Geoffrey Spick-
ard and his partner responded to an Ann Arbor
housing complex after receiving a complaint about a
large group of people drinking and being loud in the
complex’s courtyard. When the officers arrived, they
observed fifteen to twenty people engaged in those
activities. Nonetheless, they bypassed those people
and approached defendant and another gentleman
who were sitting quietly on some steps and who were
not drinking. According to Officer Spickard’s prelimi-
nary examination testimony, he approached these par-
ticular two gentlemen because he did not recognize
them. At the suppression hearing, however, he testi-
fied that he approached them because he believed
2
Law Enforcement Information Network.
2005] P
EOPLE V
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defendant’s companion resided at the apartment con-
nected to the steps on which he was sitting, and the
officer wanted to ask him some questions about the
gathering. Officer Spickard testified that while he was
talking to the gentlemen, a woman opened the adja-
cent door, asked defendant who he was and why he was
on her porch, and retreated inside.
Thus, according to Officer Spickard, he initially
asked for defendant’s identification because he sus-
pected that defendant might not belong at the com-
plex, and he wanted to determine where defendant
lived. Defendant voluntarily informed him that he did
not live in the complex, and he voluntarily gave him
his facially valid identification card. At that point, any
suspicions the officers had about where defendant
lived were resolved, and there was no need to detain
defendant.
3
Of course, the officers were free to continue
the consensual encounter by asking defendant addi-
tional questions, such as why he was there, but, instead,
they confiscated the identification card and, without
requesting permission, initiated a LEIN check.
4
3
The majority apparently does not contest that there was no need to
detain defendant because it does not find that the officers had reason-
able suspicion to detain defendant at the time of the LEIN check. See
ante at 34. And at the suppression hearing, Officer Spickard offered no
rationale whatsoever that would indicate that he or his partner had a
reasonable suspicion that any other sort of criminal activity was afoot.
4
The majority claims that I “fail[] to note” changes in defendant’s
behavior that occurred after the officers began the LEIN check, and that
I thus erroneously fail to properly assess the facts supporting reasonable
suspicion. Ante at 29 n 1. Apparently, the majority misses my point that
at the time those subsequent behaviors occurred, defendant had already
been seized. Thus, not only do those behaviors add nothing to the
analysis whether the officers had reasonable suspicion at the time of the
seizure, but considering subsequent behavior violates the United States
Supreme Court’s clear prohibition on using after-acquired suspicions in
a totality of the circumstances analysis. See Florida v JL, supra at
271-272.
38 472 M
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The LEIN check in this case was not only noncon-
sensual, but it was more than a momentary detention.
5
A person “ ‘may not be detained even momentarily
without reasonable, objective grounds for doing
so....’”Shabaz, supra at 57, quoting Royer, supra at
498. When the trespass theory is discounted, as it
should be,
6
even the majority can find no facts that
support a finding that the officers had reasonable
suspicion of criminal activity when the LEIN check was
initiated.
7
The situation that occurs when an officer asks for
identification and a person produces it involves a ques-
tion and a response, an exchange that can be fairly
5
In fact, in this case, the wait for the LEIN check results was unusually
long because the police dispatcher was busy.
6
MCL 750.552, in relevant part, defines trespass as follows:
Any person who shall wilfully enter, upon the lands or premises
of another without lawful authority, after having been forbidden so
to do by the owner or occupant, agent or servant of the owner or
occupant, or any person being upon the land or premises of
another, upon being notified to depart therefrom by the owner or
occupant, the agent or servant of either, who without lawful
authority neglects or refuses to depart therefrom, shall be guilty of
a misdemeanor....
Of course, a LEIN check would not assist the officers in determining
whether the putative occupant had previously asked defendant to leave,
and the officers had not seen the putative occupant ask defendant to
leave. Thus, any alleged suspicion of trespass was unrelated to the
LEIN check and the subsequent detention.
7
The officers would find out later that defendant was there visiting
his two daughters, who did live in the complex. While that fact has no
direct bearing on this analysis, Officer Spickard claimed that he
continued speaking with defendant because he suspected him of tres-
passing. But the fact that the officers did not elicit this information
from defendant, which could have been obtained by asking the simple
question, “Why are you here?”, but instead chose to run a LEIN check,
which would not answer the question, supports defendant’s theory that
the officers were acting on inchoate suspicions unrelated to trespass.
2005] P
EOPLE V
J
ENKINS
39
D
ISSENTING
O
PINION BY
C
AVANAGH
,J.
characterized as a “consensual encounter” as that term
is used in Fourth Amendment context. But here the
officers’ next action did not involve a question to which
defendant had the opportunity to choose to respond.
The exchange had ceased. By confiscating defendant’s
identification card and beginning an investigation, the
officers turned the otherwise voluntary encounter into
a detention. By skirting that issue entirely, the majority
fails to correctly identify the point at which defendant
was seized.
Using the objective test set forth in Hodari D, supra
at 628, the focus must be on whether, when the LEIN
check began, “the officer’s words and actions would
have conveyed” to a reasonable person that he was
being seized. “[T]he threatening presence of several
officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the
use of language or tone of voice indicating that com-
pliance with the officer’s request might be compelled”
are some circumstances that suggest that a seizure has
occurred. Mendenhall, supra at 554.
Here, two uniformed, armed police officers, who had
already resolved their initial concern about defendant’s
residence, nonetheless retained defendant’s identifica-
tion card and initiated a LEIN check with no particu-
larized, articulable basis for doing so.
8
The officers’
actions would have objectively conveyed to a reasonable
8
This particular situation differs from those in which our courts have
considered LEIN checks run in the course of lawful vehicle stops. See,
e.g., People v Davis, 250 Mich App 357, 367-368; 649 NW2d 94 (2002), and
People v Walker, 58 Mich App 519, 523-524; 228 NW2d 443 (1975). In
those cases, the officers already had reasonable suspicion and conducted
LEIN checks in furtherance of their initial stop. Here, the officers
conducted the LEIN check without first having reasonable suspicion to
make the detention.
40 472 M
ICH
26 [Feb
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ISSENTING
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PINION BY
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AVANAGH
,J.
person that the person was not free to leave, and I
cannot conceive of a reasonable person who would feel
free to walk away under those circumstances.
9
The
critical distinction between this and a consensual en-
counter is that defendant was no longer being asked
questions he could refuse to answer.
Moreover, an officer’s subjective intent is relevant to
the extent that it may have been conveyed to the
defendant by the words or actions of the officer. Men-
denhall, supra at 554 n 6. In the following testimony,
Officer Spickard confirmed that defendant was not free
to leave once he initiated the LEIN check:
Q. [Defense counsel]: At the point that you approached
Mr. Jenkins and asked him for his I.D., he was not free to
leave at that point, correct?
A. [Officer Spickard]: That would be correct.
Q. And if he would have tried to run away, you would
have run after him, correct?
A. That would be correct.
Q. And if he would have tried to run away, you would
have stopped him?
A. That would be correct.
Q. And, in fact, as you testified on direct, you encour-
aged him throughout this whole encounter to stick around?
A. Correct.
9
The majority enigmatically states that while I “conclude[] that no
reasonable person would walk away under the circumstances, this view
was obviously not shared by the defendant, who walked away ‘under
those circumstances.’ ” Ante at 29 n 2. Not only am I befuddled at what
this lends to the majority’s analysis, it seems to assume that I state that
defendant was a reasonable person. I do not. Moreover, the test to
determine when a person was seized does not consider the defendant’s
subjective feelings or actions; rather, it asks whether a reasonable person
in defendant’s position would feel free to leave. Hodari D, supra at
627-628.
2005] P
EOPLE V
J
ENKINS
41
D
ISSENTING
O
PINION BY
C
AVANAGH
,J.
Q. Because you wanted to see what the results were of
the LEIN check?
A. Correct.
Q. And he was never free to leave throughout that entire
encounter?
A. I would characterize that as correct.
Q. And he was never able to get his I.D. back from you,
correct?
A. I believe we maintained possession of his identifica-
tion, yes.
***
Q. And if he had asked you for the I.D. back at that
point, you would have said no?
A. Pending the results of the LEIN check, yes.
Officer Spickard was an experienced officer with a
ten-year history with the Ann Arbor Police Depart-
ment. It is reasonable to presume that these officers, by
their conduct and by withholding defendant’s identifi-
cation card, were effectively conveying to defendant
that he was not free to leave.
10
The officers could have easily avoided offending the
Fourth Amendment. They could have extended the
exchange by asking defendant if he had any warrants,
thereby giving defendant an opportunity to answer
“yes” or “no” or refuse to answer altogether. They could
have then asked him if he minded if they checked.
Again, defendant could have answered or refused to
10
The majority misreads my analysis by concluding that I find the
officers’ subjective beliefs, without more, material. But what I conclude is
that the officers’ show of authority, actions, words, and conduct were
objective manifestations of their clearly held subjective belief that
defendant was not free to leave. Such a conclusion is perfectly within the
confines of the rules governing the consideration of subjective beliefs. See
Mendenhall, supra at 555 n 6.
42 472 M
ICH
26 [Feb
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ISSENTING
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AVANAGH
,J.
answer. But despite the simplicity and legitimacy of this
method, and the well-settled recognition that the police
may approach people and ask noncoercive questions
without needing constitutional justifications, today’s
majority contravenes well-settled constitutional law by
installing a rule by which an officer can approach a
person, ask for identification, and run a warrant check
without reasonable suspicion that criminal activity is
afoot merely because that person is in a high-crime
area. Indeed, it cannot be clearer that “[a]n individual’s
presence in an area of expected criminal activity, stand-
ing alone, is not enough to support a reasonable,
particularized suspicion that the person is committing a
crime.” Illinois v Wardlow, 528 US 119, 124; 120 S Ct
673; 145 L Ed 2d 570 (2000), citing Brown v Texas, 443
US 47; 99 S Ct 2637; 61 L Ed 2d 357 (1979).
Thus, like each court that has heard the matter until
now, I would hold that defendant was illegally seized
without reasonable suspicion or probable cause. The
officers retained defendant’s identification card and
initiated a LEIN check without defendant’s permission
and after having already resolved their initial stated
concern. The officers did not identify, nor do the facts
show, any circumstances that suggested that the offic-
ers had a reasonable, articulable suspicion based on
objective observations that defendant had been, was, or
was about to engage in criminal wrongdoing at that
point. Shabaz, supra at 59. Moreover, I believe that the
officers’ conduct and the circumstances surrounding
the detention would have persuaded any reasonable
person to conclude that he was not free to leave. As
such, I would affirm the decision of the Court of
Appeals.
K
ELLY
, J., concurred with C
AVANAGH
,J.
2005] P
EOPLE V
J
ENKINS
43
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ISSENTING
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PINION BY
C
AVANAGH
,J.
GERLING KONZERN ALLGEMEINE
VERSICHERUNGS AG v LAWSON
Docket No. 122938. Argued October 5, 2004 (Calendar No. 1). Decided
March 8, 2005.
Gerling Konzern Allgemeine Versicherungs AG, as insurer and
subrogee of the Regents of the University of Michigan, brought an
action in the Washtenaw Circuit Court against Cecil R. Lawson
and American Beauty Turf Nurseries, Inc., seeking contribution
pursuant to MCL 600.2925a through 600.2925d toward amounts
paid by the plaintiff in settlement of personal injury claims by
persons injured in an automobile accident involving a vehicle
driven by a university employee and a vehicle driven by Lawson,
an American Beauty employee. The defendants moved for sum-
mary disposition on the basis that the tort reform acts of 1995,
1995 PA 161 and 1995 PA 249, by eliminating joint and several
liability in a variety of tort actions, including the underlying tort
action relevant to this case, abrogated the plaintiff’s action for
contribution. The circuit court, Timothy P. Connors, J., denied the
motion. The Court of Appeals, C
OOPER
,P.J., and J
ANSEN
and R. J.
D
ANHOF
, JJ., granted leave to appeal and reversed the order of the
circuit court and remanded for entry of judgment in favor of the
defendants, holding that the contribution action was barred. 254
Mich 241 (2002). The Supreme Court granted the plaintiff leave to
appeal to determine whether the plaintiff may proceed on its
contribution action based on the allegation that Lawson was a
concurrent tortfeasor whose negligence was a proximate cause of
the injured parties’ injuries. 469 Mich 954 (2003). The Supreme
Court subsequently ordered that the case be reargued and resub-
mitted. 471 Mich 855 (2004).
In an opinion by Justice M
ARKMAN
, joined by Chief Justice
T
AYLOR
, and Justices C
ORRIGAN
and Y
OUNG
, the Supreme Court
held:
The plaintiff may proceed on its contribution action notwith-
standing that, as a result of the 1995 tort reform legislation,
liability among joint tortfeasors in a variety of tort actions,
including the underlying action relevant to this matter, is several
only and that, in tort actions in which liability is several, the jury
44 472 M
ICH
44 [Mar
or judge must allocate fault among all tortfeasors and each
tortfeasor is required to pay only for his allocated percentage of
fault. The judgment of the Court of Appeals must be reversed and
the matter must be remanded to the circuit court for further
proceedings.
1. Although the 1995 tort reform legislation may have ren-
dered unnecessary most contribution claims, this does not mean
that it precludes the specific type of contribution claim at issue in
this matter. There is no basis in MCL 600.2956, 600.2957, or
600.6304 for concluding that a right to seek contribution following
a settlement is precluded in cases in which liability among mul-
tiple tortfeasors is now several only rather than joint and several.
2. Because two or more persons became severally liable in tort
for the same injury, there is a right of contribution among them
even though judgment has not been recovered against all or any of
them. The plaintiff’s right to seek contribution exists because the
plaintiff allegedly paid more than its pro rata share of the common
liability, although the plaintiff’s total recovery is limited to the
amount paid in excess of its pro rata share.
3. A common liability exists in situations in which multiple
tortfeasors are liable for the same injury or wrongful death. The
1995 tort reform legislation does not negate the existence of a
common liability among such multiple tortfeasors. Section 6304
applies specifically to those cases in which there is a common
liability among multiple tortfeasors.
4. That a tortfeasor is never required, in an action to which
§ 6304 applies, to pay more than its allocated share of fault is not
relevant in determining whether the tortfeasor may exercise its
statutory right to settle with the injured party and then exercise
its statutory right to seek contribution from other tortfeasors on
the basis of each tortfeasor’s relative degree of fault.
Justice W
EAVER
, concurring, noted that the contribution stat-
ute, MCL 600.2925a, has not been repealed and must be applied in
the present case. Common liability is that which exists in situa-
tions in which multiple tortfeasors are liable for the same injury to
a person or property or for the same wrongful death. Multiple
tortfeasors are responsible for an accident that produced a single
indivisible injury. While a tortfeasor is now required to pay only a
percentage of liability proportionate to the tortfeasor’s degree of
fault, there remains a single injury to the person or property for
which multiple tortfeasors may be held liable, according to their
degrees of fault. Thus, there is common liability. The dissent’s
2005] G
ERLING
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ONZERN V
L
AWSON
45
analysis of common liability would wipe out the contribution
statute by equating common liability with joint and several
liability.
Reversed and remanded to the circuit court.
Justice K
ELLY
, joined by Justice C
AVANAGH
, dissenting, stated
that, under MCL 600.2956, tortfeasors’ potential liability in a
personal injury lawsuit is several and not joint. Therefore, the
plaintiff’s insured was not liable for the defendants’ negligence
and could not have been held legally responsible to pay damages to
third parties for injuries arising from the defendants’ negligence.
The amount that the plaintiff paid to settle with the third parties
cannot be held to have included any of another party’s percentage
of fault for the accident. The Court of Appeals correctly decided
that any amount that the plaintiff paid in excess of its insured’s
percentage of fault should be deemed a voluntary payment for
which the plaintiff cannot seek contribution.
Before one tortfeasor may recover contribution from other
tortfeasors, he must pay the complainant more than his pro rata
share of the common liability. In order to enforce contribution, it is
necessary that the tortfeasors commonly share a burden of tort
liability or that there be a common burden of liability in tort.
MCL 600.2956, 600.2957, and 600.6304, as a result of the tort
reform legislation in 1995, replaced the notion of common liability
with fair-share liability. Because liability can no longer be joint but
is now solely several, under circumstances such as exist in this
case, there is no basis for contribution. There is no common
liability from which to seek contribution.
Although MCL 600.2925b sets out guidelines for determining
the pro rata shares of common liability, the statute does not expose
a plaintiff to greater liability than it would otherwise have under
§§ 2956, 2957, and 6304.
1. C
ONTRIBUTION —
S
ETTLEMENTS —
S
EVERAL
L
IABILITY
.
A right to seek contribution following a settlement is not precluded
as a result of the 1995 tort reform legislation in cases in which
liability among multiple tortfeasors is now several only rather
than joint and several (1995 PA 161, 1995 PA 249).
2. C
ONTRIBUTION —
S
ETTLEMENTS —
M
ULTIPLE
T
ORTFEASORS
.
A tortfeasor who enters into a settlement with an injured party is
entitled under MCL 600.2925a(3) to recover contribution from
another tortfeasor liable for the same injury where none of the
circumstances enumerated in § 2925a(3)(a)-(d) exists; the amount
46 472 M
ICH
44 [Mar
of contribution that may be recovered is limited to the amount
paid in settlement in excess of the settling tortfeasor’s pro rata
share.
3. T
ORTS —
M
ULTIPLE
T
ORTFEASORS —
C
OMMON
L
IABILITY
.
The 1995 tort reform legislation does not negate the common
liability that exists in situations in which multiple tortfeasors are
liable for the same injury or wrongful death (1995 PA 161, 1995 PA
249).
Lacey & Jones (by Michael T. Reinholm) for the
plaintiff.
G. W. Caravas & Associates, P.C. (by Gary W. Cara-
vas), and Kopla, Landau & Pinkus (by Mark L. Dolin)
for the defendants.
Amicus Curiae:
John P. Jacobs, P.C. (by John P. Jacobs), for the
Detroit Edison Company.
M
ARKMAN,
J. This case requires that we consider
whether a plaintiff, who has settled an underlying tort
claim with an injured party, may subsequently proceed
on a contribution action against a defendant whom the
plaintiff alleges was a joint tortfeasor whose negligence
constituted a proximate cause of the underlying plain-
tiff’s injuries. Defendants argue that tort reform legis-
lation in 1995, specifically MCL 600.2956, MCL
600.2957, and MCL 600.6304, has abrogated plaintiff’s
contribution action because, had the underlying tort
action proceeded to trial, the jury or judge would have
been required to allocate fault among all tortfeasors and
each tortfeasor, including plaintiff, would have been
required to pay only for its percentage of fault. Further,
defendants maintain that, if plaintiff paid more in the
settlement than was warranted by its percentage of
2005] G
ERLING
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ONZERN V
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AWSON
47
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fault, it did so as a volunteer and therefore cannot seek
contribution from joint tortfeasors.
These arguments are unavailing for the simple rea-
son that the 1995 tort reform legislation preserved the
right of a severally liable tortfeasor such as plaintiff to
bring an action for contribution. Therefore, we reverse
the judgment of the Court of Appeals and remand this
case to the trial court for further proceedings consistent
with this opinion.
I. FACTS AND PROCEDURAL HISTORY
This case arose from a three-vehicle accident that
occurred in 1997. In one vehicle were Ricki Ash and
James Nicastri, the injured parties in the underlying
claim; in the second vehicle, owned by the Regents of
the University of Michigan (Regents), was employee
Barry Maus; and in the third vehicle, owned by Ameri-
can Beauty Turf Nurseries, Inc. (American Beauty),
was employee Cecil Lawson. Ash and Nicastri filed suit
in the Court of Claims against Maus and the Regents.
Gerling Konzern Allgemeine Versicherungs AG (Ger-
ling Konzern), the insurer and subrogee of the Regents,
settled with Ash and Nicastri on behalf of Maus and the
Regents, and the underlying tort action was accordingly
dismissed with prejudice.
In November 1999, plaintiff in this action, Gerling
Konzern, filed a contribution action against defendants
Lawson and American Beauty pursuant to MCL
600.2925a-600.2925d. Defendants moved for summary
disposition pursuant to MCR 2.116(C)(8), arguing that
the tort reform acts of 1995, 1995 PA 161 and 1995 PA
249, by eliminating joint and several liability in certain
tort actions, including the underlying action in this
case, abrogated plaintiff’s contribution cause of action.
The trial court denied defendants’ motion for summary
48 472 M
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44 [Mar
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disposition. On appeal, the Court of Appeals reversed
the order of the trial court and remanded for entry of
judgment in favor of defendants, holding that plaintiff’s
contribution action was barred as a result of the elimi-
nation of joint and several liability and the rule that, in
tort actions in which liability is several only, each
tortfeasor is required to pay only for his percentage of
fault. 254 Mich App 241; 657 NW2d 143 (2002). We
granted plaintiff’s application for leave to appeal, 469
Mich 954 (2003), and subsequently ordered that the
case be reargued and resubmitted. 471 Mich 855 (2004).
II. STANDARD OF REVIEW
We review de novo the trial court’s decision to grant
or deny summary disposition under MCR 2.116(C)(8).
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817
(1999). A motion under MCR 2.116(C)(8) tests the legal
sufficiency of the complaint, and may be granted only
where the claims alleged are “ ‘so clearly unenforceable
as a matter of law that no factual development could
possibly justify recovery.’ ” Maiden, supra at 119 (cita-
tion omitted). We also review questions of statutory
interpretation de novo. Oade v Jackson Nat’l Life Ins
Co, 465 Mich 244, 250; 632 NW2d 126 (2001).
III. ANALYSIS
Until the enactment of tort reform legislation in
1995, concurrent tortfeasors in Michigan were “jointly
and severally” liable. This meant that where multiple
tortfeasors caused a single or indivisible injury, the
injured party could either sue all tortfeasors jointly or
he could sue any individual tortfeasor severally, and
each individual tortfeasor was liable for the entire
judgment, although the injured party was entitled to
full compensation only once. See Markley v Oak Health
2005] G
ERLING
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ONZERN V
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AWSON
49
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Care Investors of Coldwater, Inc, 255 Mich App 245, 251;
660 NW2d 344 (2003); Maddux v Donaldson, 362 Mich
425, 433; 108 NW2d 33 (1961). “At common law, contri-
bution was not, as a general rule, recoverable among or
between joint wrongdoers or tortfeasors.” O’Dowd v
Gen Motors Corp, 419 Mich 597, 603; 358 NW2d 553
(1984). The right of contribution, although now codified
in a majority of states, evolved in equity. See 4 Restate-
ment Torts, 2d, § 886A, comment c.
1
Thus, even though,
at law, a “joint and several” tortfeasor was liable for an
entire judgment, equity came to allow that tortfeasor to
seek contribution from other tortfeasors. A primary
purpose underlying “contribution” was to mitigate the
unfairness resulting to a jointly and severally liable
tortfeasor who had been required to pay an entire
judgment in cases in which other tortfeasors also con-
tributed to an injury.
However, as part of the 1995 tort reform legislation,
the Legislature enacted MCL 600.2956, which provides
in part, “Except as provided in section 6304, in an
action based on tort or another legal theory seeking
damages for personal injury, property damage, or
wrongful death, the liability of each defendant for
damages is several only and is not joint.” MCL
600.2957(1) further provides, “In an action based on
tort or another legal theory seeking damages for per-
sonal injury, property damage, or wrongful death, the
liability of each person shall be allocated under this
section by the trier of fact and, subject to section 6304,
in direct proportion to the person’s percentage of fault.”
Finally, MCL 600.6304 provides:
1
This remains apparent in Michigan’s relevant statutory provisions.
For example, MCL 600.2925b(c) provides, “[p]rinciples of equity appli-
cable to contribution generally shall apply.”
50 472 M
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44 [Mar
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(1) In an action based on tort...seeking damages for
personal injury, property damage, or wrongful death in-
volving fault of more than 1 person, including third-party
defendants and nonparties, the court...shall instruct the
jury to answer special interrogatories or, if there is no jury,
shall make findings indicating both of the following:
***
(b) The percentage of the total fault of all persons that
contributed to the death or injury....
***
(4) Liability in an action to which this section applies is
several only and not joint. Except as otherwise provided in
subsection (6), a person shall not be required to pay
damages in an amount greater than his or her percentage
of fault as found under subsection (1).
Thus, the 1995 legislation eliminated joint and several
liability in certain tort actions, requires that the fact-
finder in such actions allocate fault among all respon-
sible tortfeasors, and provides that each tortfeasor need
not pay damages in an amount greater than his allocated
percentage of fault. As such, in an action in which an
injured party has sued only one of multiple tortfeasors
and in which §§ 2956, 2957, and 6304 apply, the tortfea-
sor would have no need to seek contribution from other
tortfeasors, either in that same action (by bringing in
third-party defendants) or in a separate action, because
no “person shall...berequired to pay damages in an
amount greater than his or her percentage of [allocated]
fault....”Section 6304(4). Thus, the dissent is correct
in observing that the “1995 tort reform legislation
has...rendered unnecessary most claims for contribu-
tion in personal injury accidents.” Post at 69.
Yet, although the 1995 tort reform legislation may
have “rendered unnecessary” most contribution claims,
2005] G
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51
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this does not mean that it precludes every type of
contribution claim, in particular that at issue in the
instant case. Even before the 1995 legislation, a tort-
feasor had a statutory right to seek contribution in the
event that he settled a claim, see MCL 600.2925a(3),
and this is the type of contribution at issue here.
Contribution actions have not always solely been di-
rected toward recovering monies that a “jointly and
severally” liable tortfeasor was required to pay as the
result of a verdict for which the tortfeasor was fully,
although not solely, responsible. Rather, such actions
have also been directed toward obtaining contribution
from other responsible tortfeasors following a settle-
ment. We find no basis in §§ 2956, 2957, or 6304 to
conclude that a right to seek contribution in these
circumstances has been precluded in cases in which
liability among multiple tortfeasors is now “several”
only rather than “joint and several.”
MCL 600.2925a provides, in part:
(1) Except as otherwise provided in this act, when 2 or
more persons become jointly or severally liable in tort for
the same injury to a person or property or for the same
wrongful death, there is a right of contribution among
them even though judgment has not been recovered
against all or any of them.
(2) The right of contribution exists only in favor of a
tort-feasor who has paid more than his pro rata share of the
common liability and his total recovery is limited to the
amount paid by him in excess of his pro rata share. A
tort-feasor against whom contribution is sought shall not
be compelled to make contribution beyond his own pro rata
share of the entire liability.
(3) A tort-feasor who enters into a settlement with a
claimant is not entitled to recover contribution from an-
other tort-feasor if any of the following circumstances
exist:
52 472 M
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44 [Mar
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(a) The liability of the contributee for the injury or
wrongful death is not extinguished by the settlement.
(b) A reasonable effort was not made to notify the
contributee of the pendency of the settlement negotiations.
(c) The contributee was not given a reasonable oppor-
tunity to participate in the settlement negotiations.
(d) The settlement was not made in good faith.
These provisions lead to the conclusion that plaintiff is
entitled to seek contribution from defendants, and the
tort reform legislation, in our judgment, does not alter
this conclusion. The dissent’s overreaching analysis not-
withstanding, this case is actually one of straightforward
statutory interpretation. As a result of the underlying
accident in this case, “2 or more persons bec[a]me...
severally liable in tort for the same injury....”Section
2925a(1). Thus, “there is a right of contribution among
them even though,” as in this case, “judgment has not
been recovered against all or any of them.”
2
Id. Plain-
tiff’s right to seek contribution exists because plaintiff
allegedly has, “paid more than his pro rata share of the
common liability....”
3
Section 2925a(2). Plaintiff’s
“total recovery [in the contribution action] is limited to
the amount paid by him in excess of his pro rata share.”
Id.
Moreover, § 2925a(3) provides statutory support for
plaintiff’s contribution claim resulting from its settle-
2
Judgment has not been recovered against any tortfeasor in this case
because the injured parties instead settled with plaintiff.
3
Section 2925b(a) provides that, for purposes of contribution, “in
determining the pro rata shares of tortfeasors in the entire liability as
between themselves only... [t]heir relative degrees of fault shall be
considered.” Thus, in determining whether a severally liable tortfeasor
has paid more than his “pro rata” share of the common liability such that
he may be entitled to contribution under § 2925a, § 2925b requires
considering each tortfeasor’s relative degree of fault, just as § 6304
requires the fact-finder to consider the relative degree of fault of each
tortfeasor in any action subject to several liability under that provision.
2005] G
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53
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ment. Plaintiff, is a “tort-feasor who enter[ed] into a
settlement with [the injured parties]” and, therefore,
“is... entitled to recover contribution from another
tort-feasor” unless one of the circumstances enumer-
ated in § 2925a(3)(a)-(d) exists, which is not alleged
here to be the case. Section 2925a(3).
4
IV. RESPONSE TO DISSENT
The dissent’s argument appears to rest on three
grounds. First, it observes, correctly, that under
§ 2925a(2), a plaintiff may seek contribution only if he
has paid more than his share of the “common liability.”
Therefore, unless a severally liable tortfeasor shares a
“common liability” with other tortfeasors, he has no
right to contribution. The dissent then concludes that,
because the 1995 tort reform legislation made tort
liability in relevant actions “several” only and not “joint
4
Moreover, MCL 600.2925c(4) provides:
If there is not a judgment for the injury or wrongful death
against the tort-feasor seeking contribution, his right to contribu-
tion is barred unless he has discharged by payment the common
liability within the statute of limitations period applicable to
claimant’s right of action against him and has commenced his
action for contribution within 1 year after payment, or unless he
has agreed while action is pending against him to discharge the
common liability and has, within 1 year after the agreement, paid
the liability and commenced his action for contribution. [Emphasis
added.]
This provision contemplates situations such as the instant one, in
which a tortfeasor is seeking contribution even though there has been no
judgment against it because the tortfeasor has settled with the injured
parties. As long as the tortfeasor complies with the requirements of this
provision, it may proceed on its contribution claim pursuant to sections
2925a(3)(a)-(d). Contrary to the dissent’s suggestion, post at 73, a
tortfeasor’s legal liability is not “governed by the gamesmanship and
legal strategies of his fellow tortfeasors.” Rather, such liability is gov-
erned by the language of § 2925a.
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and several,” there is no “common liability” among the
tortfeasors and, thus, no right to contribution under
§ 2925a(2). Post at 71. Essentially, the dissent equates
“common liability” and “joint liability” and concludes
that common liability does not exist where liability is
several only.
The dissent’s position is flawed. Its construction of
“common liability” as used in § 2925a(2) is inconsistent
with the Legislature’s express statutory directive in
§ 2925a(1) that contribution may be obtainable where
liability is joint or several. The dissent’s interpretation
of “common liability” essentially reads the “joint[] or
several[]” language out of the statute.
5
Moreover, in O’Dowd, this Court specifically ad-
dressed whether a tortfeasor who was “severally” liable
was entitled to seek contribution under § 2925a. We
held that a right to contribution existed because
§ 2925a specifically refers to liability that is “joint[] or
several[]”:
[A]ll that is necessary to enforce contribution [under
§ 2925a] is that the tortfeasors commonly share a burden
of tort liability or, as it is sometimes put, there is a common
burden of liability in tort....Ifthedefendants are jointly
or severally liable in tort for “the same injury to a person”
or for “the same injury to...property” or for “the same
wrongful death”, contribution pursuant to [§ 2925a] is
obtainable. [O’Dowd, supra at 604-606.]
[6]
5
In discerning legislative intent, a court must “give effect to every
word,phrase,andclauseinastatute....”State Farm Fire & Cas Co v
Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002).
6
O’Dowd further asserted:
The Legislature partially abrogated the common-law bar [to
contribution] by adopting the 1939 Uniform Contribution Among
Tortfeasors Act which provided for contribution in respect of a
judgment obtained against two or more persons jointly. ...
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In Salim v LaGuire, 138 Mich App 334, 341; 361 NW2d
9 (1984), the Court of Appeals similarly observed, “(1)
the former bar against contribution among nonjoint
tortfeasors is abolished; (2) the right of contribution
exists among nonintentional wrongdoers who share a
common liability; and (3) common liability exists among
individuals who are responsible for an accident which
produces a single indivisible injury.” (Emphasis added.)
Accordingly, a “common liability” exists in situations
in which multiple tortfeasors are liable for the same
injury to a person or property or for the same wrongful
death. Common liability exists in such cases because
multiple tortfeasors are alleged to be “responsible for
an accident which produce[d] a single indivisible in-
jury.” Id. The 1995 tort reform legislation does not
negate the existence of common liability among such
multiple tortfeasors. On the contrary, § 6304(1) pro-
vides that the allocation provisions of that section apply
to tort actions “for personal injury, property damage, or
wrongful death involving fault of more than 1 person,”
just as the contribution provisions of § 2925a(1) apply
“when 2 or more persons become...severally liable in
tort for the same injury to a person or property or for
the same wrongful death ....” Section 6304 applies
Subsequently, the Legislature...substituted the substance of
the 1955 Uniform Contribution Among Tortfeasors Act for the
1941 act. Section 1 of the statute now provides:
“(1) Except as otherwise provided in this act, when 2 or more
persons become jointly or severally liable in tort for the same injury
to a person or property or for the same wrongful death, there is a
right of contribution among them ....”[Emphasis in O’Dowd.]
. . . The revised act by explicitly providing for contribution
among tortfeasors “severally” liable in tort extended contribution
to [such tortfeasors]. [O’Dowd, supra at 603-604 (citations omit-
ted; emphasis added unless otherwise noted).]
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specifically in those cases in which there is common
liability among multiple tortfeasors, and it is inaccurate
to interpret it as meaning that there is no longer any
common liability among responsible tortfeasors.
Rather, the common liability remains; what differ
merely are the terms and conditions by which that
liability must be satisfied. That is, by virtue of § 6304,
in cases in which there has been a judgment, a tortfea-
sor need only pay a percentage of the common liability
that is proportionate to his fault. Previously, where
there had been a judgment, a tortfeasor could have been
required to pay the entire amount of common liability
and then seek contribution from other tortfeasors ac-
cording to their degrees of fault.
Second, the dissent relies on Restatement Torts, 3d,
Apportionment of Liability, § 11, comment c, which
states:
When, under applicable law, a person is severally liable
to an injured person for an indivisible injury, the injured
person may recover only the severally liable person’s
comparative-responsibility share of the injured person’s
damages.
***
c. Contribution by severally liable defendant. When all
defendants are severally liable, each one is separately liable
for that portion of the plaintiff’s damages. Since overlap-
ping liability cannot occur, severally liable defendants will
not have any right to assert a contribution claim. See § 23,
Comment f. [Emphasis in original.]
We note that the duty of this Court is to construe the
language of Michigan’s statutes before turning to sec-
ondary sources such as the Restatements. The specific
statute at issue, § 2925a, allows for contribution after a
settlement in cases in which liability is joint or several.
Moreover, the above Restatement section refers, specifi-
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cally, to those situations, already discussed above, in
which an injured party has sued only one of multiple
tortfeasors and the court, as it is obligated to do, has
applied § 6304. The dissent is correct in observing that
in such situations, the 1995 tort reform legislation,
because it provides that liability is now several only, has
“rendered unnecessary most claims for contribution in
personal injury accidents.” Post at 69. “[Because] over-
lapping liability cannot occur, severally liable defen-
dants [need] not have any right to assert a contribution
claim.” Restatement Torts, 3d, § 11, comment c.
However, more relevant to the specific issue raised in
the instant case is the Restatement Torts, 3d, Appor-
tionment of Liability, § 23, which provides in part:
(a) When two or more persons are or may be liable for
the same harm and one of them discharges the liability of
another by settlement or discharge of judgment, the person
discharging the liability is entitled to recover contribution
from the other, unless the other previously had a valid
settlement and release from the plaintiff.
(b) A person entitled to recover contribution may re-
cover no more than the amount paid to the plaintiff in
excess of the person’s comparative share of responsibility.
There is nothing in the language of § 23 or its
comments to suggest that it does not apply in those
cases in which the settling tortfeasor was only severally
liable. The pertinent question is not whether liability is
joint and several, or several only, but rather whether
the settlement released the contributee. See note 10
later in this opinion.
Finally, the dissent asserts, despite the fact that
§ 2925a provides that it applies to cases in which
liability is “joint[] or several[],” that contribution is
barred in cases in which liability is several because a
severally liable tortfeasor, pursuant to § 6304, is never
58 472 M
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required to pay more than his allocated share of fault.
Thus, the dissent surmises, “ ‘plaintiff’s decision to
voluntarily pay pursuant to a settlement must be at-
tributed to its own assessment of liability based on its
insured’s negligence.’ ” Post at 74 (citation omitted).
The dissent’s analysis is defective. That a tortfeasor is
never required, “in an action” to which § 6304 applies,
to pay more than its allocated share of fault is simply
not relevant in determining whether the tortfeasor may
exercise its statutory right to settle with the injured
party and then exercise its statutory right to seek
contribution from other tortfeasors on the basis of each
tortfeasor’s relative degree of fault.
This is illustrated by the fact that, even before the
1995 tort reform legislation, a tortfeasor whose liability
was “joint and several” was never required, in a settle-
ment, to pay more than what it deemed to be its fair
share of the common liability burden. Yet, even though
not required, the statute specifically gave (and contin-
ues to give) a tortfeasor who chose to settle for more
than its fair share a right to seek contribution from
other tortfeasors.
7
Indeed, the dissent would retain that
7
The important consideration in determining whether a settling
tortfeasor may seek contribution from other tortfeasors has always been,
and continues to be, not whether the tortfeasor settled for what it
considered to be its fair share of the common liability or, alternatively, for
the entire amount of the common liability, but whether the settling party
complied with the conditions set forth in § 2925a(3)(a)-(d), including
releasing through the settlement the contributee from further liability to
the injured party. Thus, even if a settling tortfeasor settles for only what
it presumes to be its fair share of the common liability, if the settlement
releases another tortfeasor, that settling tortfeasor, if it complies with the
remainder of the statutory settlement conditions, may seek contribution
from the released contributee.
For the same reason, we find no merit in the dissent’s suggestion, post
at 75, 76, that the majority’s decision will place parties in an “untenable
position” during settlement negotiations, because they must “pretend...
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right for tortfeasors whose liability remained joint and
several. Because no tortfeasor, including one whose
liability is “joint and several,” is or has ever been
required to settle for more than his fair share of the
common liability and yet § 2925a provides a right to
contribution even after settling, it is evident that the
dissent’s analysis on this point is defective and cannot
be sustained.
8
Not only is the dissent’s position ungrounded in the
relevant statutes, it raises an unnecessary disincentive
to voluntary settlements, potentially harming both will-
ing plaintiffs and willing defendants.
9
The dissent
states that, “while settlements are generally favored,
neither MCL 600.2925a nor MCL 600.6304 makes clear
that the Legislature’s goal was to promote voluntary
that each is potentially liable for the whole of a plaintiff’s injuries.”
Because a settling party may still seek contribution under MCL
600.2925a for payments made in excess of its fair share of the common
liability, there is no need to “pretend” to the contrary.
8
The dissent has a point, as noted above, that the 1995 tort reform
legislation renders unnecessary contribution actions that, in the absence
of §§ 2956, 2957, and 6304, would have otherwise resulted after a “jointly
and severally” liable tortfeasor has been required to pay an entire
judgment to an injured party. Nonetheless, that these provisions also
prohibit contribution actions resulting from a settlement is a concept, as
also noted above, that has no apparent source in Michigan law.
9
A tortfeasor might rationally conclude, after all, that it is in his
interest to settle for an amount greater than his estimated pro rata
liability as determined by a trier of fact. Taking a case to trial and leaving
the allocation of responsibility to the trier of fact can involve a number of
transactional costs. There are, for example, fees for attorneys, retained
experts and other litigation costs, possible fiscal losses because of
negative publicity, and opportunity costs incurred by those required to
divert their time and energy from more productive matters to litigation.
A severally liable tortfeasor might prefer to settle for more than his
pro rata share in order to avoid these costs. This incentive may be
especially powerful when the tortfeasor believes that he may be found
liable for noneconomic damages that defy accurate estimation.
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settlement. Instead, their provisions place the risk of,
and burden for, payment upon a party only to the extent
that it is actually responsible for the injury.” Post at 75.
The dissent may be correct in these assertions, but they
are irrelevant. Section 2925a may not “clearly” reflect a
legislative intent of encouraging settlements, but nei-
ther does it reflect, clearly or otherwise, any intent to
disfavor settlements, which is what the dissent’s con-
struction would produce. Moreover, to construe § 2925a
as affording a settling party a right to seek contribution
from other responsible tortfeasors in cases in which
liability is several only does not countermand the legis-
lative intent of placing the “risk of, and burden for,
payment upon a party only to the extent that it is
actually responsible for an injury.” Post at 75. On the
contrary, such a construction of § 2925a works affirma-
tively to effect that intent.
10
10
See CSX Transportation, Inc v Union Tank Car Co, 173 F Supp 2d
696, 699-700 (ED Mich, 2001), in which the United States District Court
for the Eastern District of Michigan, in a contribution claim filed after a
settlement by the settling party against other responsible tortfeasors,
noted that while § 6304 renders contribution claims unnecessary, § 2925a
still allows such claims after a settlement, thus furthering the legislative
goals of encouraging settlements and properly allocating fault:
Plaintiff CSXT is seeking an allocation of fault between the
tortfeasors in this case. It is seeking neither “joint liability,” nor
“joint and several liability.” Plaintiff CSXT is entitled, under
Michigan law, to show that the Defendants and Plaintiff CSXT
were/are severally liable (with an appropriate allocation of the
percentages of fault) for the rail tank car accident in January of
2000.
Because currently, in the usual case [i.e., the cases that proceed
to trial], the allocation of fault is mandated, there will usually not
be a circumstance where a tortfeasor has paid more than his
pro-rata share of the common liability. Thus, there would be no
need for a claim for contribution. This is what Kokx v. Bylenga, 241
Mich. App. 655, 617 N.W.2d 368 (2000) explained....
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V. CONCLUSION
MCL 600.2925a-600.2925d provide plaintiff a statu-
tory right to seek contribution from other responsible
tortfeasors after having settled with the injured parties
in the underlying tort action, and tort reform legislation
In the instant case, [because] Plaintiff CSXT... has settled
numerous lawsuits, paying the full share of each, CSXT can assert
that it has paid more than its pro-rata share of the liability. Thus,
under Michigan law, it has a claim for contribution.
If the purposes behind the Michigan tort reform legislation
were speedy settlement of suits, and allocation of fault, thwarting
CSXT’s ability to seek contribution defies both of those objectives.
First, without the possibility of seeking “reimbursement” from
other tortfeasors, CSXT would have no interest in seeking a
speedy settlement of claims. Further, allowing CSXT to bring a
claim for contribution furthers the purpose of holding tortfeasors
responsible for their share of the liability.
A brief example explains a possible misunderstanding of the
effect of the tort reform legislation. Assume two tortfeasors are
equally responsible for an injury. Prior to the tort reform legisla-
tion, they could each be held liable for 100% of the injury. If one
defendant paid the entire balance, he could sue the second
defendant for contribution. However, after the tort reform legis-
lation abolished joint and several liability (in nearly all cases, and
the exceptions are irrelevant here), each could only be held for 50%
of the injury. Therefore, there would be no need for an action for
contribution.
This does not mean that a cause of action for contribution was
completely extinguished by the legislation; it simply means that in
the usual case [i.e., those that proceed to trial], it would not be
needed. This is bolstered by the fact that the legislature did not
repeal the contribution statute.
In the instant case, the claims have been settled without an
allocation of fault. One tortfeasor has paid 100%, although there
are likely other tortfeasors which can be allocated some of the
fault. The statute permits a claim for contribution in this situation
— Plaintiff CSXT can allege that it has paid more than its pro-rata
share of the liability. The tort reform legislation did not erase this
right.
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in 1995 does not alter this right. Accordingly, we hold
that plaintiff may proceed on its contribution action
against defendants. We reverse the judgment of the
Court of Appeals and remand this case to the trial court
for further proceedings consistent with this opinion.
T
AYLOR
, C.J., and C
ORRIGAN
and Y
OUNG
, JJ., concurred
with M
ARKMAN,
J.
W
EAVER,
J. (concurring). I concur in the majority’s
conclusion that plaintiff may proceed with its contribu-
tion action against defendants. As both the majority
and the dissent note, tort reform has rendered many
contribution actions unnecessary.
1
Nonetheless, the
contribution statute, MCL 600.2925a, has not been
repealed by the Legislature and remains in effect.
Therefore, we must apply it to the present case.
Further, I agree with the majority’s analysis of
“common liability,” as that which “exists in situations
in which multiple tortfeasors are liable for the same
injury to a person or property or for the same wrongful
death.” Ante at 56. Multiple tortfeasors are “ ‘respon-
sible for an accident which produce[d] a single indivis-
ible injury.’ ” Id. (citation omitted). While a tortfeasor
is now required to pay only a percentage of liability
proportionate to the tortfeasor’s degree of fault, there
remains a single injury to the person or property for
which multiple tortfeasors may be held liable, accord-
ing to their degrees of fault. Thus, there is “common
liability.”
The dissent’s analysis of “common liability” would,
in essence, wipe out the contribution statute by equat-
ing “common liability” with “joint and several liability.”
1
Ante at 51; post at 69.
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Post at 69-73. While there may be good policy reasons to
reconsider how the contribution statute should operate
in light of recent tort reform, these questions are
properly resolved by the Legislature, which may repeal
or amend the statute as it sees fit.
In the present case, it is alleged that there are
multiple tortfeasors responsible for “a single injury” to
Ricki Ash and James Nicastri. Thus, there is “common
liability” under the statute, and plaintiff may proceed
with its contribution action.
2
For these reasons, I con-
cur in the result of the majority opinion.
K
ELLY,
J. (dissenting). Plaintiff seeks contribution
from defendants for a portion of settlement monies paid
to two third parties following a traffic accident involv-
ing three vehicles. We are asked to decide whether a
contribution action is possible under the facts of this
case and in light of tort reform legislation enacted in
1995.
The majority finds that such an action is viable, even
considering that Michigan has adopted a comparative
negligence scheme for personal injury actions. Under it,
plaintiff would not have been liable for defendants’
percentage of fault had this case proceeded to trial.
Because I believe that the majority misreads this tort
reform legislation, I disagree with its conclusions.
According to MCL 600.2956, part of the 1995 tort
reform legislation, tortfeasors’ potential liability in a
personal injury lawsuit is several and not joint. Applied
to this case, it follows that plaintiff’s insured was not
2
Note that just because plaintiff may proceed with a contribution
action, this does not mean that plaintiff will prevail. Plaintiff must
establish that defendants are at fault in the accident, the degree of
defendants’ fault, and that it paid more than its pro rata share of the
entire liability.
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liable for defendants’ negligence. Hence, it could not
have been held legally responsible to pay damages to
third parties for injuries arising from defendants’ neg-
ligence. When plaintiff settled with the third parties,
the amount it agreed to pay could not be held to have
included any of another party’s percentage of fault for
the accident.
Consequently, I would find that plaintiff cannot now
seek contribution from the defendants for monies it
paid in settlement of the third parties’ claim. Thus, I
would affirm the decision of the Court of Appeals that
any amount that plaintiff paid in excess of its insured’s
percentage of fault should be deemed a voluntary pay-
ment.
FACTS AND LOWER COURT PROCEEDINGS
This case is a secondary proceeding that arose from a
three-vehicle traffic accident on October 21, 1997. One
vehicle was occupied by Ricki Ash and James Nicastri.
Another was driven by Barry Maus, who was employed
by the University of Michigan Board of Regents. Plain-
tiff is the insurer of Maus and of the regents. The third
vehicle was a semitrailer driven by defendant Cecil R.
Lawson, who was employed by defendant American
Beauty Turf Nurseries, Inc.
Ash and Nicastri sued Maus and the regents for
damages for their injuries. In a separate proceeding,
Lawson sued Maus and the regents for his injuries.
Plaintiff settled both lawsuits against Maus and the
regents, paying on their behalf approximately $2.2
million to Ash and Nicastri and $85,000 to Lawson.
In November 1999, plaintiff filed a separate com-
plaint seeking statutory contribution under MCL
600.2925a from Lawson and American Beauty Turf for
a portion of the amount it had paid to Ash and Nicastri.
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Defendants moved for summary disposition in their
favor, alleging that plaintiff and the regents had not
complied with the notice requirements of the contribu-
tion statute. See MCL 600.2925a(3) through (5). The
trial court denied the motion and found that plaintiff
had given defendants sufficient notice of its settlement
negotiations with Ash and Nicastri. These claims are
not at issue in this appeal.
After the trial court’s motion cutoff date passed,
defendants moved to dismiss pursuant to MCR
2.116(C)(8). They argued that the 1995 tort reform
legislation, specifically MCL 600.2956, 600.2957(1), and
600.6304(1), abrogated plaintiff’s cause of action for
contribution. Without addressing the substantive issue,
the trial court denied the motion as untimely.
On appeal, the Court of Appeals reversed the decision
and remanded for entry of judgment in defendants’
favor. It held that, under the express language of the
statutes at issue, contribution was not available to
plaintiff. 254 Mich App 241, 248; 657 NW2d 143 (2002).
We granted plaintiff’s application for leave to appeal,
469 Mich 954 (2003), and subsequently ordered that the
case be reargued and resubmitted. 471 Mich 855 (2004).
STATUTORY LANGUAGE
This Court reviews de novo a decision on a motion for
summary disposition. Questions regarding the interpre-
tation and construction of statutes are questions of law
that are also reviewed de novo. Northville Charter Twp
v Northville Pub Schools, 469 Mich 285, 289; 666 NW2d
213 (2003). When construing a statute, our goal is to
ascertain and give effect to the intent of the Legislature
in writing it. Turner v Auto Club Ins Ass’n, 448 Mich 22,
27; 528 NW2d 681 (1995). The best measure of intent is
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the words that the Legislature used. Chandler v Dowell
Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210
(1998).
As the Court of Appeals correctly noted, at issue here
is the interplay between the provisions in the 1995
amendments of the Revised Judicature Act
1
and the
preexisting contribution provisions contained in MCL
600.2925a, 600.2925b, and 600.2925c.
The pertinent subsections of MCL 600.2925a state:
(1) Except as otherwise provided in this act, when 2 or
more persons become jointly or severally liable in tort for the
same injury to a person or property or for the same wrongful
death, there is a right of contribution among them even
though judgment has not been recovered against all or any
of them.
(2) The right of contribution exists only in favor of a
tort-feasor who has paid more than his pro rata share of the
common liability and his total recovery is limited to the
amount paid by him in excess of his pro rata share. A
tort-feasor against whom contribution is sought shall not
be compelled to make contribution beyond his own pro rata
share of the entire liability. [Emphasis added.]
One tortfeasor can seek contribution from another
regardless of whether a judgment has been entered
against either. MCL 600.2925c(1). However:
If there is not a judgment for the injury or wrongful
death against the tort-feasor seeking contribution, his
right to contribution is barred unless he has discharged by
payment the common liability within the statute of limita-
tions period applicable to claimant’s right of action against
him and has commenced his action for contribution within
1 year after payment, or unless he has agreed while action
is pending against him to discharge the common liability
and has, within 1 year after the agreement, paid the
1
1995 PA 161 and 1995 PA 249.
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liability and commenced his action for contribution. [MCL
600.2925c(4) (emphasis added).]
MCL 600.2925b addresses the expression “pro rata
share” and includes considerations of fault and equity:
Except as otherwise provided by law, in determining the
pro rata shares of tortfeasors in the entire liability as
between themselves only and without affecting the rights
of the injured party to a joint and several judgment:
(a) Their relative degrees of fault shall be considered.
(b) If equity requires, the collective liability of some as a
group shall constitute a single share.
(c) Principles of equity applicable to contribution gen-
erally shall apply.
It is against this statutory backdrop that the Court is
asked to address plaintiff’s right to contribution under
the 1995 tort reform legislation. MCL 600.2956 states:
Except as provided in [MCL 600.6304], in an action based
on tort or another legal theory seeking damages for personal
injury, property damage, or wrongful death, the liability of
each defendant for damages is several only and is not joint.
However, this section does not abolish an employer’s vicari-
ous liability for an act or omission of the employer’s em-
ployee.
MCL 600.2957(1) similarly states:
In an action based on tort or another legal theory
seeking damages for personal injury, property damage, or
wrongful death, the liability of each person shall be allo-
cated under this section by the trier of fact and, subject to
[MCL 600.6304], in direct proportion to the person’s per-
centage of fault. In assessing percentages of fault under
this subsection, the trier of fact shall consider the fault of
each person, regardless of whether the person is, or could
have been, named as a party to the action.
In connection with the above, the relevant portion of
MCL 600.6304 provides:
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(1) In an action based on tort or another legal theory
seeking damages for personal injury, property damage, or
wrongful death involving fault of more than 1 person,
including third-party defendants and nonparties, the court,
unless otherwise agreed by all parties to the action, shall
instruct the jury to answer special interrogatories or, if
there is no jury, shall make findings indicating both of the
following:
(a) The total amount of each plaintiff’s damages.
(b) The percentage of the total fault of all persons that
contributed to the death or injury, including each plaintiff
and each person released from liability under section
2925d, regardless of whether the person was or could have
been named as a party to the action.
***
(4) Liability in an action to which this section applies is
several only and not joint. Except as otherwise provided in
subsection (6), a person shall not be required to pay
damages in an amount greater than his or her percentage
of fault as found under subsection (1).
ANALYSIS
After reviewing the statutory provisions cited above,
I agree with much of the rationale used by the Court of
Appeals in this case and in its previous opinion in Kokx
v Bylenga, 241 Mich App 655; 617 NW2d 368 (2000).
The essence of these opinions is that the 1995 tort
reform legislation has prevented and rendered unnec-
essary most claims for contribution in personal injury
accidents.
Contribution remains a useful tool for fault and
liability allocation in certain other circumstances. The
Court of Appeals in Kokx opined:
[U]nder the plain and mandatory language of the re-
vised statutes, a defendant cannot be held liable for dam-
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ages beyond the defendant’s pro-rata share, except in
certain specified circumstances. Accordingly, in actions
based on tort or another legal theory seeking damages for
personal injury...there would be no basis for a claim of
contribution. Moreover, because joint liability remains in
certain circumstances, the Legislature would have no rea-
son to repeal § 2925a, which provides for a right of contri-
bution....[Id. at 663.]
I agree with these observations. For example, MCL
600.2956 continues to recognize that common or joint
liability exists in claims involving “an employer’s vicari-
ous liability....” And MCL 600.6304(6) specifically
provides for joint liability in medical malpractice cases.
However, the statutory language at issue in this case
supports defendants’ position. In order for one tortfea-
sor to recover contribution from others, he must pay the
complainant more than his pro rata share of the com-
mon liability. The amount that he may recover from the
others is limited to the amount he paid to the complain-
ant in excess of that for which he was liable. MCL
600.2925a(2). See also MCL 600.2925c(4). In this case,
before any such calculation may be entertained, plain-
tiff must establish that under MCL 600.2957 or MCL
600.6304 there is common liability among the defen-
dants.
This Court has previously discussed the interplay
between contribution and “common liability” as fol-
lows:
The general rule of contribution is that one who is
compelled to pay or satisfy the whole or to bear more than
his aliquot share of the common burden or obligation, upon
which several persons are equally liable or which they are
bound to discharge, is entitled to contribution against the
others to obtain from them payment of their respective
shares. [Caldwell v Fox, 394 Mich 401, 417; 231 NW2d 46
(1975) (emphasis added).]
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Thus, in order to enforce contribution under the revised
act, it is necessary that the tortfeasors “commonly
share a burden of tort liability or, as it is sometimes put,
there is a common burden of liability in tort.” O’Dowd
v Gen Motors Corp, 419 Mich 597, 604-605; 358 NW2d
553 (1984). See also Caldwell, supra at 420 n 5.
However, although these older cases are useful to a
point, they do not take into account the sweeping
changes the Legislature made in tort reform in 1995.
Sections 2956, 2957, and 6304 replaced the notion of
common liability, which also has been referred to as
joint and several liability, with “fair-share liability.” See
Smiley v Corrigan, 248 Mich App 51, 53 n 6; 638 NW2d
151 (2001), citing House Legislative Analysis, HB 4508
(Substitute H-6), April 27, 1995, p 3. Thus, because
liability can no longer be joint but is now solely several
under circumstances such as exist in this case, there is
no basis for contribution. There is no “common liabil-
ity” from which to seek it. See Restatement Torts,
Apportionment of Liability, 3d, § B19, comment k, p
183.
The majority adopts plaintiff’s argument that
§ 2925a(1), because it refers to persons who become
“jointly or severally liable,” may apply to cases in which
tortfeasors are severally liable under MCL 600.2956.
However, plaintiff fails to evaluate § 2925a(1) in con-
junction with the limitation in § 2925a(2). That subsec-
tion expressly restricts the right of contribution to
circumstances where there has been a payment of
greater than one’s pro rata share of “common liability.”
See also § 2925c(4).
Thus, it is not enough that tortfeasors are “jointly or
severally liable.” Before contribution can be sought,
they must share a “common liability.” This does not
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occur when the liability of tortfeasors is several. As
stated in Restatement Torts, Apportionment of Liabil-
ity, 3d, § 11, p 108:
When, under applicable law, a person is severally liable
to an injured person for an indivisible injury, the injured
person may recover only the severally liable person’s
comparative-responsibility share of the injured person’s
damages.
I also find comment c of the same provision persua-
sive:
c. Contribution by severally liable defendant. When all
defendants are severally liable, each one is separately liable
for that portion of the plaintiff’s damages. Since overlap-
ping liability cannot occur, severally liable defendants will
not have any right to assert a contribution claim. [Id., p
109.]
Therefore, the conclusion in Salim v LaGuire,
2
that
common liability could exist among individuals respon-
sible for an accident causing a single indivisible injury,
may have been correct before the enactment of tort
reform. However, the injury involved in this case is no
longer an “indivisible injury” under MCL 600.2925a.
The Legislature has indicated its intention that these
“indivisible injuries” now be divided.
In essence, what the majority appears to argue is that
we should continue our notions of what, in the past,
constituted an indivisible injury. In so doing, it ignores
the intent of the Legislature in passing tort reform. The
majority realizes that, had this case proceeded to trial,
plaintiff could not have been held responsible for defen-
dants’ negligence. (Ante at 57-58.) Yet, because plaintiff
chose to settle before trial, the majority maintains that
the injury remains indivisible and thus plaintiff’s con-
tribution action is viable.
2
138 Mich App 334, 340; 361 NW2d 9 (1984).
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I conclude that the Legislature did not intend that a
tortfeasor’s legal liability for personal injury be gov-
erned by the gamesmanship and legal strategies of his
fellow tortfeasors.
3
Implicit in the majority’s opinion is
the premise that an injury only becomes divisible when
a jury divides it. I cannot accept this position. It would
allow the parties to circumvent the tort reform statutes
during settlement. Rather, the Legislature has based
tortfeasors’ potential liability on the cause of action
involved, and what cause is involved is determined at
the commencement of litigation.
The majority’s analysis relies on case law decided
before the existence of tort reform. It uses this law to
frustrate the Legislature’s recognition that injuries
may now share a common origin or cause, yet result in
no common liability or burden in tort.
Similarly, a plaintiff should not rely on the language
of MCL 600.2925b merely because it sets out guidelines
for determining the “pro rata shares” of common liabil-
ity. The statute does not expose a plaintiff to greater
liability than it would otherwise have under § 2956,
§ 2957, and § 6304. Where common liability exists, a
review could be made of the measure of pro rata shares
under MCL 600.2925b, possibly subjecting a tortfeasor
to more liability than his actual percentage of fault.
However, § 2925b does not apply where there is no
common liability.
Thus, I think it clear that a pro rata division can be
made only when tortfeasors actually share a common
tort burden or liability. Because this case is a personal
injury action, it is governed by MCL 600.2956 and,
pursuant to that statute, there is no common liability.
3
I note that the majority omits the fact that plaintiff had already
entered into a separate settlement agreement with defendant Lawson
before it brought this contribution action.
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Hence, plaintiff’s insured was responsible only for its
own separate liability to Ash and Nicastri. This fact did
not change simply because plaintiff chose to settle
instead of proceeding to a jury determination of the
actual percentages of fault of plaintiff’s insured and
defendants.
Even if plaintiff deliberately paid more than its pro
rata share of the total liability, it cannot recover any of
that excess from defendants. As the Court of Appeals
aptly stated, “plaintiff’s decision to voluntarily pay
pursuant to a settlement must be attributed to its own
assessment of liability based on its insured’s negli-
gence.” 254 Mich App 247-248. This view is certainly
not unusual:
In a several liability system, the nonsettling tortfeasor is
held only for his comparative fault share. In determining
the percentage responsibility of the nonsettling tortfeasor,
jurors must determine the comparative share of every
tortfeasor, including those who have settled. However, a
determination that A’s fault was 50% and B’s fault was
50% does not affect A’s settlement or his liability. It merely
means that B is liable for 50%, no more, no less. If A paid
more than 50% of the damages, that was his decision. If he
paid less, the plaintiff made a bad bargain, but none of this
matters to B’s liability. [2 Dobbs, The Law of Torts,
Practitioner Treatise Series (2001), § 390, p 1088.]
The majority opinion discusses at length how my
reading of these statutes creates a disincentive to vol-
untary settlement (Ante at 60-63 to conclusion.) How-
ever, it also acknowledges that “[a] primary purpose
underlying ‘contribution’ was to mitigate the unfair-
ness resulting to a jointly and severally liable tortfeasor
who had been required to pay an entire judgment in
cases in which other tortfeasors also contributed to an
injury.” (Ante at 50.) Allowing a contribution action in
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this case does not serve the Legislature’s purpose in
enacting tort reform, which changed the scheme to
fair-share liability.
Moreover, while settlements are generally favored,
neither MCL 600.2925a nor MCL 600.6304 makes clear
that the Legislature’s goal was to promote voluntary
settlement.
4
Instead, their provisions are designed to
allocate liability. They place the risk of, and burden for,
payment upon a party only to the extent that it is
actually responsible for an injury. This applies even if
the injury traditionally would be viewed as indivisible.
The logic of the majority’s position that its interpre-
tation encourages settlement and mine hinders it is
shaky. Once parties know the rules involving their
negotiations, settlement will be facilitated. Clarifying
the statute’s meaning so that the parties know the
extent of their liability aids negotiations. It does not
preclude them.
In addition, I find questionable the assertion that
allowing contribution actions under these circum-
stances will foster settlement goals. The majority fails
to recognize the untenable position in which parties will
be placed during settlement negotiations as a result of
its decision. The parties will be left to negotiate portions
of claims for which they have no possible liability. The
better position is to leave negotiations over those por-
tions to the parties actually responsible.
The parties must recognize that, under tort reform,
each tortfeasor cannot be held responsible for more
than his fair share of the liability for a plaintiff’s injury.
4
I recognize that the language of MCL 600.2925a(3) discusses what
must be done during settlement negotiations to permit a subsequent
contribution action. However, I read this language as barring tortfeasors
who do not first seek the inclusion of other potentially liable parties in
settlement negotiations, not as a policy statement preferring settlement.
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But they must also pretend the contrary, that each is
potentially liable for the whole of a plaintiff’s injuries.
Thus, in deciding whether to settle a claim, tortfeasors
must calculate into their settlement decisions certain
risks for liability that the Legislature has stated do not
exist. The majority’s conclusions inject unnecessary
confusion into the settlement process involving per-
sonal injury actions.
CONCLUSION
The language in MCL 600.2925a(2) and 600.2925c(4)
allows recovery in a contribution action based on “com-
mon liability” only. MCL 600.2956 precludes common
liability in a personal injury lawsuit. Because the law-
suit underlying this action was for personal injury,
plaintiff’s insured could not be held liable for contribu-
tion. It is liable only for its “fair share” of the damages
incurred by Ash and Nicastri based on its percentage of
fault.
Accordingly, plaintiff cannot justifiably state that
when it settled with Ash and Nicastri it was at risk of
shouldering more than its fair share of a common
burden. It cannot now recover contribution from defen-
dants on the theory that it paid more than its pro rata
share of such liability.
Therefore, I respectfully dissent from the majority’s
decision that contribution is possible here. I would
instead affirm the decision of the Court of Appeals.
C
AVANAGH,
J., concurred with K
ELLY
,J.
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WARD v CONSOLIDATED RAIL CORPORATION
Docket No. 124533. Decided March 8, 2005. On application by the
defendant for leave to appeal, the Supreme Court, after hearing
oral argument on whether the application should be granted and
in lieu of granting leave to appeal, reversed in part the judgment
of the Court of Appeals and remanded the matter to the circuit
court for a new trial with regard to the plaintiff’s claim under the
Federal Safety Appliance Act, 49 USC 20302.
William F. Ward brought an action in the Wayne Circuit Court
against Consolidated Rail Corporation, seeking damages for a
work-related injury allegedly caused by a defective brake mecha-
nism on one of the defendant’s locomotives. The court, Amy P.
Hathaway, J., instructed the jury that, because the defendant
failed to produce the allegedly defective mechanism, the hand-
brake was presumed to be defective and that the jury could infer
that the missing evidence was unfavorable to the defendant. The
jury was not instructed that no adverse inference should be drawn
if it found that the defendant had a reasonable explanation for its
failure to produce the evidence. The jury returned a verdict in
favor of the plaintiff with respect to his claim under the Federal
Safety Appliance Act, 49 USC 20302, and a judgment was entered
thereon. The defendant appealed. The Court of Appeals, S
AWYER
,
P.J., and M
ETER
and S
CHUETTE
, JJ., in an unpublished opinion per
curiam, issued August 7, 2003 (Docket No. 234619), affirmed in
part and remanded the matter to the trial court. The defendant
sought leave to appeal to the Supreme Court.
In an opinion per curiam, signed by Chief Justice T
AYLOR
, and
Justices W
EAVER,
C
ORRIGAN,
Y
OUNG
, and M
ARKMAN
, the Supreme
Court held:
The trial court erred in instructing the jury that the brake was
presumed to be defective. Missing evidence gives rise to an adverse
presumption when the complaining party can establish intentional
conduct indicating fraud and a desire to destroy evidence and
thereby suppress the truth. The evidence here does not warrant
such a presumption. The trial court also erred when it instructed
the jury regarding the possibility of drawing an adverse inference.
A jury may draw an adverse inference against a party that has
failed to produce evidence when: the evidence was under the
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party’s control and could have been produced; the party lacks a
reasonable excuse for its failure to produce the evidence; and the
evidence is material, not merely cumulative, and not equally
available to the other party. The trial court’s instruction in this
case did not explain that no adverse inference ultimately remains
if the defendant had a reasonable explanation for its failure to
produce the missing evidence.
Although the trial court’s error was harmless with regard to
the plaintiff’s claims on which the jury returned a verdict of no
cause of action in favor of the defendant and that part of the Court
of Appeals judgment need not be disturbed, the error requires
reversal of the part of the judgment concerning the Federal Safety
Appliance Act claim under 49 USC 20302 and a new trial on that
claim before a properly instructed jury. Instructional error war-
rants reversal if it resulted in such unfair prejudice to the
complaining party that the failure to vacate the jury verdict would
be inconsistent with substantial justice. The trial court’s errone-
ous ruling on the adverse presumption and the numerous refer-
ences by the plaintiff’s counsel to the ruling during trial funda-
mentally prejudiced the defendant with respect to the Federal
Safety Appliance Act claim because it significantly interfered with
the jury’s ability to decide the case intelligently, fairly, and impar-
tially. Accordingly, failure to vacate this aspect of the judgment and
to grant the defendant a new trial on this claim would be
inconsistent with substantial justice.
Reversed in part and remanded.
Justice C
AVANAGH
, joined by Justice K
ELLY
, dissenting, stated
that, although he agrees with the majority that the trial court
initially erred when it concluded that the plaintiff was entitled to
an adverse presumption, it is not clear that the trial court
ultimately erred in instructing the jury that it could infer that
the missing evidence was unfavorable to the defendant. If the
court did err, the error was harmless. The perceived error did not
result in such unfair prejudice to the defendant that permitting
the jury’s verdict to stand would be inconsistent with substantial
justice.
1. E
VIDENCE —
P
RESUMPTIONS —
R
EBUTTAL
.
A presumption is a procedural device that entitles the person relying
on it to a directed verdict if the opposing party fails to introduce
evidence rebutting the presumption; the presumption dissolves if
rebuttal evidence is introduced but the underlying inferences
remain to be considered by the jury.
78 472 M
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77 [Mar
2. E
VIDENCE —
M
ISSING
E
VIDENCE —
P
RESUMPTIONS
.
Missing evidence gives rise to an adverse presumption only when the
complaining party can establish intentional conduct indicating
fraud and a desire to destroy evidence and thereby suppress the
truth.
3. E
VIDENCE —
M
ISSING
E
VIDENCE —
A
DVERSE
I
NFERENCES
.
A jury may draw an adverse inference against a party that has failed
to produce evidence only when the evidence was under the party’s
control and could have been produced, the party lacks a reasonable
excuse for its failure to produce the evidence, and the evidence is
material, not merely cumulative, and not equally available to the
other party (M Civ JI 6.01).
4. J
URY —
J
URY
I
NSTRUCTIONS —
A
PPEAL
.
Instructional error warrants reversal if it resulted in such unfair
prejudice to the complaining party that the failure to vacate the
jury verdict would be inconsistent with substantial justice; in-
structional error is unfairly prejudicial where it significantly
interfered with the jury’s ability to decide the case intelligently,
fairly, and impartially.
Best & Flanagan, L.L.P. (by Roger R. Roe, Jr.), and
Sinas, Dramis, Brake, Boughton & McIntyre, P.C. (by
Brian J. Waldman)(Bendure & Thomas,byMark R.
Bendure, of counsel), for the plaintiff.
Durkin, McDonnell, Clifton & O’Donnell, P.C. (by
Gregory A. Clifton and Joseph J. McDonnell), for the
defendant.
P
ER
C
URIAM.
The issue before us concerns the conse-
quence, if any, of defendant’s inability to produce an
allegedly defective locomotive handbrake at trial.
In this case, the trial court instructed the jury that
because defendant disposed of the handbrake, it was
presumed to be defective and the jury could infer that
the missing evidence was unfavorable to defendant.
This instruction was given despite the fact that defen-
dant produced evidence that it discarded the handbrake
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in the regular course of business, for reasons unrelated
to plaintiff’s claim. The jury returned a verdict for
plaintiff. The Court of Appeals affirmed, in part, and
remanded.
1
We conclude that the jury instructions were flawed in
two respects. First, the trial court erred when it in-
structed the jury that the handbrake was presumed to
be defective. Such a presumption is not supported by
the evidence. Second, the trial court erred when it
instructed the jury that it could draw an adverse
inference, but failed to explain that no inference should
be drawn if defendant had a reasonable excuse for its
failure to produce the evidence. Because these errors
were not harmless, we reverse the part of the Court of
Appeals judgment concerning the Federal Safety Appli-
ance Act, 49 USC 20302, and remand this case for a new
trial on that claim before a properly instructed jury.
I. BACKGROUND
Plaintiff, a railroad engineer, claimed that he was
injured by a faulty handbrake that he was using to
secure one of defendant’s locomotives. The braking
system employs two control levers. The brake is en-
gaged by moving the application lever in an up-and-
down arc; each upward stroke tightens a chain that
runs from the lever to the brake. The brake is disen-
gaged through a separate release lever. Plaintiff claimed
that his back was injured when the application lever
unexpectedly stopped while he was in the middle of an
upward stroke.
2
1
Unpublished opinion per curiam, issued August 7, 2003 (Docket No.
234619).
2
Defendant’s trainmaster had once before experienced difficulty en-
gaging the handbrake; the evidence showed that this is a fairly common
occurrence and is not considered a defect in the brake.
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Plaintiff reported his injury to his employer the next
day. Defendant had inspected the locomotive four days
before plaintiff’s accident and the handbrake was work-
ing properly at that time. In response to plaintiff’s
injury report, the entire handbrake assembly was in-
spected again, this time by defendant’s trainmaster and
a locomotive machinist. They took apart and examined
the assembly, including the levers, brake chain, and
gear mechanism. They determined that the handbrake
was functioning properly and returned the locomotive
to service.
Defendant’s employees then operated the locomotive
regularly for more than two weeks, successfully using
the application lever to engage the brake. Nineteen days
after plaintiff’s injury, one of defendant’s employees
reported that the release lever jammed and that the
handbrake could not be disengaged. The locomotive was
moved to a repair facility in Elkhart, Indiana, where it
was examined by defendant’s maintenance supervisor.
He removed and discarded the entire handbrake assem-
bly and installed a new one. The Elkhart maintenance
supervisor was unaware of plaintiff’s earlier report of a
malfunction in the application lever.
Plaintiff filed this lawsuit more than ten months
later. He theorized that the application lever stopped in
mid-stroke because of the presence of a repair link, or
clevis, in the brake chain. He alleged that defendant
was negligent under the Federal Employers’ Liability
Act (FELA), 45 USC 51 et seq., and that defendant
violated both the Federal Locomotive Inspection Act
(FLIA), 49 US 20701 et seq.,
3
and the Federal Safety
3
The FLIA states, in relevant part, that a railroad carrier may “use or
allow to be used a locomotive or tender on its railroad line only when the
locomotive or tender and its parts and appurtenances...[a]reinproper
condition and safe to operate without unnecessary danger of personal
injury....”49USC20701(1).
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Appliance Act (FSAA), 49 USC 20302.
4
In a motion for partial summary disposition, plaintiff
informed the trial court that defendant discarded the
entire handbrake assembly and argued that he was
entitled to a presumption that the handbrake was
defective. Defendant argued that no adverse presump-
tion should be made because the handbrake was dis-
carded in the ordinary course of business following a
malfunction in the release lever—a mechanism differ-
ent from the one plaintiff theorized caused his injury.
Defendant supported its position with an affidavit from
its Elkhart maintenance supervisor. The trial court
resolved this issue in plaintiff’s favor and reaffirmed its
ruling before the start of trial.
The jury was made aware of the presumption. Plain-
tiff’s counsel said, during opening statement:
And even though they knew about the injury, they knew
about these claims, the defect in this hardware, they
destroyed the evidence. The railroad destroyed the evi-
dence. They threw away the chain, they threw away the
clevis, they threw away the entire handbrake even though
they had this knowledge. And it is for this reason that this
Court has concluded there is a presumption in this case
that this handbrake was defective when Mr. Ward went to
use it and got hurt on the evening of February 19, 1998.
This theme was repeated during jury voir dire and
closing arguments.
After the close of evidence, the trial court reminded
the jury of the presumption and instructed it that it
could infer that the missing evidence would have been
unfavorable to defendant:
4
The FSAA states, in relevant part, that a railroad carrier may “use or
allow to be used on any of its railroad lines . . . a vehicle only if it is
equipped with...efficient hand brakes....”49USC20302(a)(1)(B).
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The Court made a determination that there was a
presumption that the handbrake at issue was defective due
to the fact that the handbrake clevis and chain were
discarded by defendant. The defendant railroad has come
forward with some evidence to rebut this presumption.
Accordingly, the law requires that I instruct you as follows:
Certain evidence relevant to this case, namely the
handbrake, the clevis and chain, were not available at trial
because they were destroyed while in the possession or
control of the defendant. The Rules of Evidence provide
that you, the jury, may infer that this evidence was unfa-
vorable to the defendant.
The jury returned a verdict for plaintiff. It found that
defendant was not negligent under the FELA and that
the handbrake was “in proper condition and safe to
operate without unnecessary danger of personal injury”
as required by the FLIA. The jury concluded, however,
that the handbrake was not “efficient” as required by
the FSAA and awarded plaintiff damages on this basis.
Defendant appealed. The Court of Appeals held that
the trial court properly granted plaintiff a presumption
of defect and properly instructed the jury.
5
Defendant now seeks leave to appeal with this
Court.
6
II. STANDARD OF REVIEW
We review claims of instructional error de novo. Cox
v Flint Bd of Hosp Managers, 467 Mich 1, 8; 651 NW2d
356 (2002). Jury instructions should not omit material
5
Defendant raised a total of thirteen issues in the Court of Appeals. It
obtained relief on one issue relating to the calculation of case-evaluation
sanctions.
6
We consider here only defendant’s claim that the trial court erred
when it granted plaintiff a presumption that the missing handbrake was
defective and when it instructed the jury on this issue. In all other
respects, defendant’s application for leave to appeal is denied.
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issues, defenses, or theories that are supported by the
evidence. Case v Consumers Power Co, 463 Mich 1, 6;
615 NW2d 17 (2000). Instructional error warrants
reversal if it “resulted in such unfair prejudice to the
complaining party that the failure to vacate the jury
verdict would be ‘inconsistent with substantial jus-
tice.’ ” Johnson v Corbet, 423 Mich 304, 327; 377 NW2d
713 (1985); MCR 2.613(A).
III. DISCUSSION
The trial court’s instructions to the jury blurred the
distinction between presumptions and inferences and
were not tailored to the evidence submitted by the
parties.
In Widmayer v Leonard, 422 Mich 280, 289-290; 373
NW2d 538 (1985), we explained that a presumption is a
“procedural device” that entitles the person relying on
it to a directed verdict if the opposing party fails to
introduce evidence rebutting the presumption. If rebut-
tal evidence is introduced, the presumption dissolves,
but the underlying inferences remain to be considered
by the jury:
Almost all presumptions are made up of permissible
inferences. Thus, while the presumption may be overcome
by evidence introduced, the inference itself remains and
may provide evidence sufficient to persuade the trier of fact
even though the rebutting evidence is introduced. But
always it is the inference and not the presumption that
must be weighed against the rebutting evidence. [Id.at
289.]
It is well settled that missing evidence gives rise to an
adverse presumption only when the complaining party
can establish “ ‘intentional conduct indicating fraud
and a desire to destroy [evidence] and thereby suppress
the truth.’ ” Trupiano v Cully, 349 Mich 568, 570; 84
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NW2d 747 (1957), quoting 20 Am Jur, Evidence, § 185,
p 191; see also Lagalo v Allied Corp (On Remand), 233
Mich App 514, 520; 592 NW2d 786 (1999).
The evidence here does not warrant a presumption
that the application lever of the handbrake was defec-
tive. When plaintiff requested the presumption, he
established only that he gave defendant notice that the
application lever had malfunctioned and that defendant
discarded the entire handbrake assembly approxi-
mately three weeks later. This falls short of establishing
that defendant committed “ ‘intentional conduct indi-
cating fraud and a desire to destroy [evidence] and
thereby suppress the truth.’ ” Trupiano, supra at 570,
quoting 20 Am Jur, Evidence, § 185, p 191.
Moreover, even if plaintiff’s initial evidentiary show-
ing had been sufficient, no presumption would ulti-
mately remain because defendant came forward with
rebuttal evidence that provided a nonfraudulent expla-
nation for its decision to discard the handbrake. See
Widmayer, supra at 289. Once defendant presented this
evidence, the initial presumption dissolved and, at best,
the fact-finder was left with the possibility of consider-
ing the underlying inferences. Id. As a result, the trial
court erred when it granted plaintiff an unrebuttable,
adverse presumption that the handbrake was defective
and allowed the jury to be informed of its ruling.
The trial court compounded this error when it read
the jury a modified version of M Civ JI 6.01 and
instructed the jury that it could infer that the evidence
would have been unfavorable to defendant.
7
A jury may
draw an adverse inference against a party that has
failed to produce evidence only when: (1) the evidence
7
M Civ JI 6.01(c) addresses the situation, like this one, where a party
admits that it had control of evidence but cannot produce it and seeks to
offer a reasonable excuse:
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was under the party’s control and could have been
produced; (2) the party lacks a reasonable excuse for its
failure to produce the evidence; and (3) the evidence is
material, not merely cumulative, and not equally avail-
able to the other party. Lagalo, supra at 520; M Civ JI
6.01. In this case, the trial court’s instruction omitted
the critical language in M Civ JI 6.01 explaining that no
adverse inference arises if defendant has a reasonable
explanation for its failure to produce the missing evi-
dence. We conclude, therefore, that the trial court erred
both in regard to the adverse presumption ruling and
the modified M Civ JI 6.01(c) instruction.
Having determined that the trial court erred, we
turn to the issue whether the error was harmless.
8
(The [plaintiff / defendant] in this case has not offered [the
testimony of [name] / [identify exhibit]]. As this evidence was
under the control of the [plaintiff / defendant] and could have been
produced by [him / her], you may infer that the evidence would
have been adverse to the [plaintiff / defendant], if you believe that
no reasonable excuse for [plaintiff’s / defendant’s] failure to
produce the evidence has been shown.)
8
As an initial matter, before a “harmless error” inquiry is performed by
the reviewing court, the party challenging the instruction must preserve
the issue for appeal. MCR 2.516(C). To preserve the issue, the party must
timely object to the instruction on the record, “stating specifically the
matter to which the party objects and the grounds for the objection.” Id.
At oral argument, counsel for plaintiff stipulated the timeliness of
defendant’s objection. Plaintiff’s counsel only challenged the specificity
of the objection. At trial, defense counsel objected to the instruction given
by the trial court by stating, “The defendant objects to the presumption
instruction or the revised presumption instruction that was given today.
We object to the fact that the requested instruction by the defendant
regarding inference that the prior and post condition of the brake should
have been considered.”
While we acknowledge that defense counsel’s objection is not a model
of clarity, we conclude that defense counsel satisfied the specificity
requirements of MCR 2.516(C). Counsel stated specifically the matter to
which defendant objected (i.e., the revised presumption instruction given
86 472 M
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Instructional error is harmless unless a failure by the
reviewing court to correct the error would be “inconsis-
tent with substantial justice.” MCR 2.613(A). The error
in this case was harmless with regard to the FELA and
FLIA claims because the jury returned a verdict of no
cause of action in favor of defendant. We do not disturb
this aspect of the judgment. Id. The error was not
harmless, however, with regard to the jury’s finding
that the handbrake was “inefficient” and that defen-
dant violated the FSAA.
During trial, plaintiff’s counsel made repeated refer-
ences to the erroneous adverse presumption ruling.
Counsel for plaintiff told the jury during voir dire,
opening arguments, and closing arguments that the
handbrake could be “presumed defective.” The trial
court itself reminded the jury of the adverse presump-
tion when it instructed the jury before deliberations.
The trial court’s erroneous ruling on the adverse pre-
sumption and the numerous references by plaintiff’s
counsel to the ruling during trial fundamentally preju-
diced defendant with respect to the FSAA claim because
it significantly interfered with the jury’s ability to
“ ‘decide the case intelligently, fairly, and impartially.’ ”
Cox, supra at 15 (quoting Johnson, supra at 327).
Accordingly, failure to vacate this aspect of the judg-
ment and to grant defendant a new trial on the FSAA
claim would be “inconsistent with substantial justice.”
MCR 2.613(A).
We are not persuaded by plaintiff’s argument that
the trial court cured its erroneous adverse presumption
ruling when it later read the jury a modified version of
the adverse inference instruction contained in M Civ JI
by the trial court) and the grounds for the objection (i.e., that the trial
court did not give the full inference instruction requested by defendant).
Accordingly, defense counsel preserved the issue for appeal.
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6.01(c). To the contrary, the trial court’s truncated
version of M Civ JI 6.01(c) only compounded its prior
error. The modified version of M Civ JI 6.01(c) omitted
the critical language informing the jury that no adverse
interference arises if the jury believes that a reasonable
excuse for defendant’s failure to produce the missing
evidence has been shown.
At trial, defendant presented evidence that its main-
tenance supervisor, unaware of plaintiff’s earlier injury
report, discarded the handbrake assembly during the
normal course of business. Specifically, defendant of-
fered evidence that its maintenance supervisor dis-
carded the handbrake assembly in response to a sepa-
rate complaint about the handbrake’s release lever—a
lever different from the application lever, which plain-
tiff theorized caused his injury. Accordingly, because
defendant presented a reasonable excuse for its failure
to produce the handbrake at trial, we conclude that
defendant was fundamentally prejudiced by the trial
court’s modified version of M Civ JI 6.01(c). Defendant
was entitled to have the jury hear the entire version of
M Civ JI 6.01(c), not an abbreviated version that
created an artificial and overwhelming advantage in
favor of plaintiff. To hold otherwise would deny defen-
dant a fair trial and would be “inconsistent with sub-
stantial justice.” MCR 2.613(A); see also Cox, supra at
15 (holding that the failure to reverse on the basis of the
trial court’s modified version of SJI2d 30.01, which
effectively altered the burden of proof, would be incon-
sistent with substantial justice).
IV. CONCLUSION
Accordingly, we reverse the part of the Court of
Appeals judgment concerning the FSAA claim and
remand this case to the trial court for a new trial on
88 472 M
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plaintiff’s FSAA claim before a properly instructed jury.
On remand, the trial court shall instruct the jury that it
may infer that the evidence would be unfavorable to
defendant, but that no such inference should arise if the
jury believes that defendant has a reasonable explana-
tion for its failure to produce the missing evidence. M
Civ JI 6.01(c).
T
AYLOR
, C.J., and W
EAVER,
C
ORRIGAN,
Y
OUNG
, and
M
ARKMAN
, JJ., concurred.
C
AVANAGH,
J. (dissenting). While I tend to agree that
the trial court initially erred under existing law when it
concluded that plaintiff was entitled to an adverse
presumption,
1
I am not as convinced as the majority
that the trial court ultimately erred when it instructed
the jury that it could infer that the missing evidence
was unfavorable to defendant.
2
Moreover, even assum-
ing that the trial court erroneously instructed the jury,
I would conclude that the error was harmless.
Here, the jury found that defendant was not negli-
gent under the Federal Employers’ Liability Act
(FELA), 45 USC 51 et seq. The jury also concluded that
the handbrake in question was in proper condition and
safe to operate without unnecessary danger of personal
injury as required by the Federal Locomotive Inspection
Act (FLIA). See 49 USC 20701(1). However, the jury
found that the Federal Safety Appliance Act (FSAA),
1
See Trupiano v Cully, 349 Mich 568, 570; 84 NW2d 747 (1957).
2
See, e.g., In re Wood Estate, 374 Mich 278, 288-290; 132 NW2d 35
(1965). See also Widmayer v Leonard, 422 Mich 280, 289; 373 NW2d 538
(1985); Brandt v C F Smith & Co, 242 Mich 217, 222; 218 NW 803 (1928);
Dowagiac Mfg Co v Schneider, 181 Mich 538, 541; 148 NW 173 (1914);
Vergin v City of Saginaw, 125 Mich 499, 503; 84 NW 1075 (1901); Cooley
v Foltz, 85 Mich 47, 49; 48 NW 176 (1891); Cole v Lake Shore&MSR
Co, 81 Mich 156, 161-162; 45 NW 983 (1890).
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specifically 49 USC 20302(a)(1)(B), had been violated
because the handbrake was inefficient. On the facts
before us, I fail to see how the perceived error in this
case resulted in such unfair prejudice to defendant that
permitting the jury’s verdict to stand would be incon-
sistent with substantial justice. In my view, the jury
could have reached its verdict without the aid of the
trial court’s arguably erroneous instruction. The jury
could have concluded that defendant was not negligent
and that the handbrake, even though not unnecessarily
dangerous, was nonetheless inefficient.
3
Accordingly, I
must respectfully dissent.
K
ELLY
, J., concurred with C
AVANAGH
,J.
3
See, e.g., MCR 2.613(A); Urben v Pub Bank, 365 Mich 279, 287; 112
NW2d 444 (1961); Macklem v Warren Constr Co, 343 Mich 334; 72 NW2d
60 (1955).
90 472 M
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,J.
ADVOCACY ORGANIZATION FOR PATIENTS & PROVIDERS
v AUTO CLUB INSURANCE ASSOCIATION
Docket No. 124639. Argued November 9, 2004 (Calendar No. 5). Decided
March 8, 2005.
The Advocacy Organization for Patients & Providers, an organiza-
tion of health-care providers and health-care patients, along with
others, brought an action in the Eaton Circuit Court against the
Auto Club Insurance Association, a no-fault insurance company,
and others, seeking declaratory and injunctive relief on an allega-
tion that the defendants were violating the no-fault act, MCL
500.3101 et seq., by failing to pay the full amount of their insureds’
medical bills as required by MCL 500.3107 and 500.3157 of the act.
The plaintiffs asserted that it was unlawful for the defendants to
employ review companies to compare the insureds’ providers’ fees
to those of other providers in order to determine a reasonable
charge, when the defendants were required by statute to compare
their insureds’ health-care providers’ fees for services with those
providers’ fees for comparable services provided to an uninsured
patient to determine a reasonable charge. The plaintiffs moved for
summary disposition, and the defendants filed a cross-motion for
summary disposition, arguing that a customary fee of a particular
provider is not necessarily a reasonable one, and that the defen-
dants were permitted to evaluate a medical invoice for reasonable-
ness as a matter of law. The court, Calvin E. Osterhaven, J.,
granted the defendants’ motion for summary disposition. The
plaintiffs appealed. The Court of Appeals, M
ARKEY
and M
URRAY
,JJ.
(F
ITZGERALD
,P.J., concurring), affirmed. 257 Mich App 365 (2003).
The Supreme Court granted leave to appeal. 470 Mich 881 (2004).
In a memorandum opinion, signed by Chief Justice T
AYLOR
and
Justices C
ORRIGAN
and M
ARKMAN
, and in concurring opinions by
Justices C
AVANAGH
(joined by Justice K
ELLY
), W
EAVER
,andC
ORRI-
GAN
, the Supreme Court held:
MCL 500.3107(1)(a) requires a no-fault insurer to pay all
reasonable charges incurred for reasonably necessary products,
services, and accommodations for an injured person’s care, recov-
ery, or rehabilitation. MCL 500.3157 provides that a medical
provider may charge a reasonable amount for such products,
2005] A
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services, and accommodations but the amount shall not exceed the
amount the provider customarily charges for like products, ser-
vices, and accommodations in cases not involving insurance. In
this case the Court of Appeals affirmed the trial court’s ruling that
the fact that a medical provider’s charge does not exceed the
amount the provider customarily charges in cases not involving
insurance does not establish that the charge is reasonable. The
Court of Appeals correctly concluded that it is for the trier of fact
to determine whether a medical charge, although customary, is
reasonable.
Justice C
AVANAGH,
joined by Justice K
ELLY
, concurring, stated
that given that the question of reasonableness was not before the
lower courts and discovery did not center on the question, he
would be apprehensive about sanctioning any method without
knowing its full details. The Legislature should address this issue
and implement some guidelines, as other no-fault states have
done.
Justice W
EAVER
, concurring, fully joined the concurrence of
Justice C
AVANAGH
but wrote separately to stress the need for the
Court to address the specific procedures to be followed when a
justice decides whether to participate in a case. There is a right
and an expectation of the people that a justice will participate in
every case unless there is a valid publicly known reason why the
justice should not participate in a particular case. Const 1963, art
6, § 6 requires justices to give written reasons, accessible to the
public, for their decisions whether to participate in a case. MCR
2.003 governs the procedure for the disqualification of Michigan
Supreme Court justices.
Justice C
ORRIGAN
, concurring, wrote separately to note that
there is nothing secretive or sinister in the tradition followed by
the justices in choosing whether to publish a reason for a decision
on recusal. The recusal decisions of the other six members of the
Court over the last two years, like Justice W
EAVER
’s 251 pre-2003
recusal decisions, comport with the Constitution and the Michigan
Court Rules.
Affirmed.
Justice Y
OUNG
took no part in the decision of this case.
I
NSURANCE —
N
O
-F
AULT —
M
EDICAL
P
ROVIDERS —
R
EASONABLE
C
HARGES
.
Although a medical provider may charge a reasonable amount for
products, services, and accommodations for an injured person’s
care, recovery, or rehabilitation and that amount may not exceed
the amount the provider customarily charges for like products,
92 472 M
ICH
91 [Mar
services, and accommodations in cases not involving no-fault
insurance, the fact that the provider’s charge does not exceed that
customary amount does not establish that the charge is reason-
able; the determination regarding the reasonableness of the
amount charged is a question for the trier of fact (MCL
500.3107[1][a], 500.3157).
Sheldon L. Miller, Barbara H. Goldman, and Linda
Fausey for the plaintiffs.
Barris Sott Denn & Driker, P.C. (by Stephen E.
Glazek), for Auto Club Insurance Association.
Garan, Lucow, Miller, P.C. (by David N. Campos), for
Allstate Insurance Company, Wolverine Mutual Insur-
ance Company, and Secura Insurance Company.
Dykema Gossett PLLC (by Lori McAllister) for Citi-
zens Insurance Company and Auto-Owners Insurance
Company.
Willingham & Cote (by Raymond J. Foresman) for
Farm Bureau Insurance Company.
Wheeler & Upham, P.C. (by Gary A Maximiuk and
Jack L. Hoffman), for Farmer’s Insurance Exchange.
Foster Swift Collins & Smith (by Scott L. Mandel) for
Frankenmuth Mutual Insurance Company.
Bodman LLP (by Diane L. Akers and James Albert
Smith) for State Farm Mutual Automobile Insurance
Company.
Howard & Howard Attorneys, P.C. (by Eric H. Lip-
sitt), for Transamerica Insurance Group.
Bodman LLP (by Joseph J. Shannon) for Manage-
ability, Inc.
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Lambert, Leser, Cook, Schmidt & Guinta, P.C. (by
Susan M. Cook), for Medcheck Medical Audit Services.
Nemier, Tolari, Landry, Mazzeo & Johnson P.C. (by
David B. Landry and Michelle E. Mathieu) for Recovery
Unlimited, Inc.
Zausmer, Kaufman, August & Caldwell, P.C. (by
Mark J. Zausmer), for Titan Insurance Company.
Bush, Seyferth & Kethledge, PLLC (by Cheryl A.
Bush), for Review Works.
Amici Curiae:
Dykema Gossett PLLC (by Jill M. Wheaton and
Joseph Erhardt) for the Michigan Catastrophic Claims
Association.
George M. Carr, P.C. (by George M. Carr), for the
Property Casualty Insurers Association of America.
Honigman Miller Schwartz and Cohn LLP (by Chris
Rossman, Jason Schian Conti, and Cynthia F. Reaves)
for the Michigan Health and Hospital Association.
Kerr, Russell and Weber, PLC (by Richard D. Weber
and Joanne Geha Swanson), for the Michigan State
Medical Society.
Gross, Nemeth & Silverman, P.L.C. (by James G.
Gross), for the Michigan Chamber of Commerce.
Sinas, Dramis, Brake, Boughton & McIntyre, P.C. (by
George T. Sinas and L. Page Graves), for the Coalition
Protecting Auto No Fault.
M
EMORANDUM
O
PINION.
This declaratory judgment ac-
tion concerns obligations under the no-fault act, MCL
94 472 M
ICH
91 [Mar
M
EMORANDUM
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500.3101 et seq., to pay medical expenses. Plaintiffs are
individual medical providers, two guardians of cata-
strophically injured victims of automobile accidents,
and an organization of health-care providers and pa-
tients that principally seeks to protect the legal rights of
both groups. Defendants are either no-fault insurance
companies that have issued policies to Michigan motor-
ists or the review companies employed by one or more of
those insurers to review medical bills arising from
automobile accidents.
MCL 500.3107(1)(a) requires that an insurer pay “all
reasonable charges incurred for reasonably necessary
products, services and accommodations for an injured
person’s care, recovery, or rehabilitation.” MCL 500.3157
provides that a medical provider “may charge a reason-
able amount for the products, services and accommoda-
tions rendered. The charge shall not exceed the amount
the person or institution customarily charges for like
products, services and accommodations in cases not
involving insurance.”
After a hearing on the parties’ respective motions for
summary disposition, the trial court ruled that defen-
dants were entitled to review any medical charges and
pay only those determined to be reasonable. The trial
court further ruled that even though a medical provid-
er’s charge does not exceed the amount that provider
customarily charges in cases not involving insurance,
that fact alone does not establish that the charge is
reasonable.
The Court of Appeals affirmed. 257 Mich App 365;
670 NW2d 569 (2003). It ruled that it is for the trier of
fact to determine whether a medical charge, albeit
“customary,” is also reasonable. 257 Mich App 379.
Because we agree with the Court of Appeals resolu-
tion of this issue, and the others presented to it, we
affirm. MCL 7.302(G)(1).
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M
EMORANDUM
O
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T
AYLOR
, C.J., and C
ORRIGAN
and M
ARKMAN
, JJ., con-
curred.
C
AVANAGH
,J.(concurring). A t oral argument it became
very clear that defendants’ methodologies in determin-
ing reasonableness were never at issue at the trial court
level, which accounts for the dearth of evidence regard-
ing those methodologies. Counsel for plaintiff admitted
that the reason discovery was not more directed toward
illuminating the methodologies was because no one
asked plaintiffs before this Court’s leave order to discuss
how reasonableness should be assessed. Although I agree
with the Court of Appeals conclusion that “reasonable”
and “customary” are two separate inquiries, I view its
reference to the 80th percentile test, given this record, as
dicta. Given that the question of reasonableness was not
before the lower courts, and, consequently, discovery did
not center on the question, I would be apprehensive
about sanctioning any method without knowing its full
details. I agree also with the Court of Appeals concur-
rence that urged our Legislature to address this issue
and implement some guidelines in this area, as other
no-fault states have done.
K
ELLY
, J., concurred with C
AVANAGH
,J.
W
EAVER
,J.(concurring). I join fully in Justice C
A-
VANAGH
’s concurrence.
I write separately because this case is further evi-
dence that this Court needs to address and open for
public comment the specific procedures to be followed
when a justice decides whether or not to participate in
a case, and whether Const 1963, art 6, § 6 requires
justices to give written reasons for their decisions
whether or not to participate in a case.
96 472 M
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ONCURRING
O
PINIONS BY
C
AVANAGH AND
W
EAVER
,JJ.
When this Court entered its order granting leave to
appeal on June 25, 2004, Justice Y
OUNG
was shown as
not participating; he is also shown as not participating
in this memorandum opinion. No public or written
explanation for Justice Y
OUNG
’s decision not to partici-
pate in the case has been given to the Court, the parties,
or the public.
A justice’s nonparticipation in a case may arise in one
of two ways. A justice may decide, on his own initiative,
not to participate in a case, and be shown as not
participating. Alternatively, a party may request the
recusal of a justice from a case. Recusal is defined as
“[t]he process by which a judge is disqualified on
objection of either party (or disqualifies himself or
herself) from hearing a lawsuit because of self interest,
bias or prejudice.” Black’s Law Dictionary (6th ed).
It is now clear to me that there is a right and an
expectation of the people of Michigan that a justice will
participate in every case unless there is a valid publicly
known reason why the justice should not participate in
a particular case. Traditionally, in this Court a justice’s
decision on whether to participate or not participate in
a case has been a secret matter, and justices have not
made public the reasons for that decision.
1
But a
1
From January 1, 1995, when I began serving on the Michigan
Supreme Court, until May 2003, when I first stated that justices should
publish in the record of the case the reason(s) for the justice’s decision
whether to participate or not participate in a case, I was shown as not
participating approximately 251 times, with no explanation given. In
almost all these cases, I did not participate because I had been on the
Court of Appeals panels that earlier decided the cases and I was informed
that justices “traditionally” did not participate in such cases. In retro-
spect, I believe that reasons for my decisions not to participate should
have been made part of the Court’s orders or opinions.
I filed a detailed explanation of my decision not to participate in In re
JK, 468 Mich 1239 (2003). In Gilbert v DaimlerChrysler Corp, 470 Mich
749; 685 NW2d 391 (2004), reconsideration den 472 Mich 1201 (2005),
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justice’s decision whether to participate or not partici-
pate in a case and the reasons for that decision should
not be governed by tradition and secrecy; they should
be governed by the law, the Constitution, and the
Michigan Court Rules made in conformance with the
Constitution; and they should be made publicly and in
writing for the record. This Court should set the
highest standards for clear, fair, orderly, and public
procedures.
The question whether a justice should participate or
not participate in a case arises with regularity. Since
May 2003, when I proposed opening an administrative
file on the recusal procedure in In re JK, 468 Mich 1239
(2003), a justice has been shown as not participating,
with no reason given, in at least 31 cases.
2
The questions raised in this and any other case in
which a justice’s participation or nonparticipation
arises are:
1) Are individual justices bound by the require-
ments of art 6, § 6 of the 1963 Michigan Constitu-
tion that states, “Decisions of the supreme
court... shall be in writing and shall contain a
concise statement of the facts and reasons for each
decision...”?
2) Do the procedures regarding the disqualifica-
tion of judges set forth in Michigan Court Rule
2.003 apply to Supreme Court justices?
the plaintiff’s attorney moved to disqualify then-Chief Justice C
ORRIGAN
and Justices W
EAVER,
T
AYLOR,
Y
OUNG
, and M
ARKMAN
. I attached to the order
denying that motion a written explanation for my decision to participate
in the case. Similarly, in Graves v Warner Bros, 669 NW2d 552 (2003), the
plaintiff filed a motion for reconsideration, asking that then-Chief Justice
C
ORRIGAN
and Justices W
EAVER,
T
AYLOR,
Y
OUNG
, and M
ARKMAN
recuse
themselves from participating in the case. I filed a statement giving
reasons for my decision to participate in the case.
2
The list of cases in which the various justices were shown as not
participating is attached as Appendix A.
98 472 M
ICH
91 [Mar
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ONCURRING
O
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EAVER
,J.
Const 1963, art 6, § 6, which states that “Decisions
of the supreme court...shall be in writing and shall
contain a concise statement of the facts and reasons
for each decision” requires that justices give written
reasons for each decision.
3
There is no more fundamen-
tal purpose for the requirement that the decisions of the
Court be in writing than for the decisions to be acces-
sible to the citizens of the state. Because a justice’s
decision to not participate in a case can, itself, change
the outcome of a case, the decision is a matter of public
significance and public access and understanding re-
garding a justice’s participation or nonparticipation is
vital to the public’s ability to assess the performance of
the Court and the performance of the Court’s individual
justices. Thus, the highest and best reading of art 6, § 6
requires that a justice’s self-initiated decision not to
participate, or a challenged justice’s decision to partici-
pate or not participate, should be in writing and acces-
sible to the public.
Further, Michigan Court Rule 2.003, which regulates
the procedures for the disqualification of judges, applies
to Michigan Supreme Court justices.
4
Michigan Court
Rule 2.001 provides that the rules in chapter 2, which
includes MCR 2.003, apply to all courts established by
the Constitution and laws of the state of Michigan.
5
The
Michigan Supreme Court is a court established by the
Michigan Constitution. Thus, a plain reading of the
3
Art 6, § 6 of the 1963 Michigan Constitution states, in full:
Decisions of the supreme court, including all decisions on
prerogative writs, shall be in writing and shall contain a concise
statement of the facts and reasons for each decision and reasons
for each denial of leave to appeal. When a judge dissents in whole
or in part he shall give in writing the reasons for his dissent.
4
The full text of MCR 2.003 is attached as Appendix B.
5
MCR 2.001 states:
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court rule shows that MCR 2.003 governs the proce-
dures for the disqualification of Michigan Supreme
Court justices.
Almost two years ago, in May 2003, this Court’s
longstanding failure to follow and apply MCR 2.003 to
itself became apparent to me.
6
As a result, I proposed an
amendment of MCR 2.003 that would clarify the appli-
cability of MCR 2.003 and bring MCR 2.003 into con-
formance with the requirements of Const 1963, art 6,
§ 6. The amendment I proposed requires a justice to
publish in the record of the case the reason(s) for the
justice’s decision whether to participate or not partici-
pate in a case.
7
In response to my recommendation that
the Court open an administrative file and take public
comments on such a rule, the Court opened an admin-
istrative file, ADM 2003-26, on May 20, 2003. But
almost two years later, the Court has not yet placed the
proposed amendment or the issue on any of the public
hearing agendas on administrative matters held during
that time. There have been five such public hearings
since May 2003: September 23, 2003, January 29, 2004,
May 27, 2004, September 15, 2004, and most recently
January 27, 2005. Nor has the Court taken any other
action regarding a clear, fair, orderly, and public proce-
dure for the participation or nonparticipation of justices
of the Supreme Court.
The rules in this chapter govern procedure in all civil proceed-
ings in all courts established by the constitution and laws of the
State of Michigan, except where the limited jurisdiction of a court
makes a rule inherently inapplicable or where a rule applicable to
a specific court or a specific type of proceeding provides a different
procedure.
6
In In re JK, 468 Mich 1239 (2003), my participation in a case became
an issue, which led me to research the procedures governing the
participation and disqualification of justices.
7
See In re JK, 468 Mich 1239 (2003).
100 472 M
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,J.
A justice’s decision whether to participate or not
participate in a case and the reasons for that decision
should not be governed by tradition and secrecy; they
should be governed by the law, the Constitution, and
the Michigan Court Rules made in conformance with
the Constitution; and they should be made publicly and
in writing for the record. This Court should set the
highest standards for clear, fair, orderly, and public
procedures.
I continue to urge the Court to recognize, open for
public comment, and address this ongoing need to have
clear, fair, orderly, and public procedures concerning the
participation or nonparticipation of justices.
APPENDIX A
Chief Justice T
AYLOR
was shown as not participating
in two cases. Booker v Detroit, 469 Mich 892 (2003), and
Neal v Dep’t of Corrections, 471 Mich 928 (2004).
Justice C
AVANAGH
was shown as not participating in
two cases. Konieczka v Dep’t of Transportation, 468
Mich 912 (2003), and Herwig-Tucker v Detroit Enter-
tainment, LLC, 471 Mich 873 (2004).
Justice K
ELLY
was shown as not participating in
seven cases. Boyle v Gen Motors Corp, 468 Mich 1249
(2003), Woodman v Miesel Sysco Food Service Co, 469
Mich 855 (2003), Grievance Administrator v Raaflaub,
668 NW2d 146 (Mich, 2003), People v Wright, 469 Mich
880 (2003), People v White, 469 Mich 877 (2003),
Sonsynath v Dep’t of Transportation, 668 NW2d 153
(Mich, 2003), and People v Herbert, 470 Mich 857
(2004).
Justice C
ORRIGAN
was shown as not participating in
one case. Shaya v Universal Standard Medical Labora-
tories, Inc, 469 Mich 994 (2004).
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Justice Y
OUNG
was shown as not participating in
eight cases. Bomarko, Inc v Mercy Health Services No
2, 468 Mich 915 (2003), Auto Club Ins Ass’n v Juncaj,
468 Mich 923 (2003), Brooks v State Farm Mut Auto-
mobile Ins Co, 469 Mich 874 (2003), Blamer v Guiang,
469 Mich 899 (2003), People v Shook, 469 Mich 911
(2003), Fournier v Mercy Community Health Care
System-Port Huron, 469 Mich 921 (2003), Warber v
Trinity Health Corp, 469 Mich 1001 (2004), and
Lawrence v Battle Creek Health Systems, 469 Mich
1051 (2004).
Justice M
ARKMAN
was shown as not participating in
eleven cases. People v Nevers, 469 Mich 881 (2003),
People v Bahoda, 469 Mich 945 (2003), Shacket Devel-
opments, Inc v Labana, 469 Mich 909 (2003), Shaya v
Universal Standard Medical Laboratories, Inc, 469
Mich 994 (2004), Hughes v Hall, 469 Mich 1016 (2004),
People v Harwell, 469 Mich 1017 (2004), Grievance
Administrator v Zipser, 469 Mich 1307 (2004), People v
Zakar, 470 Mich 854 (2004), Landes v Equity Resource
Environmental, 470 Mich 864 (2004), People v Nevers,
683 NW2d 674 (Mich, 2004), and American Bumper and
Mfg Co v Nat’l Union Fire Ins Co of Pittsburgh, 471
Mich 948 (2004).
APPENDIX B
MCR 2.003, Disqualification of Judge, provides:
(A) Who May Raise. A party may raise the issue of a
judge’s disqualification by motion, or the judge may raise
it.
(B) Grounds. A judge is disqualified when the judge
cannot impartially hear a case, including but not limited to
instances in which:
(1) The judge is personally biased or prejudiced for or
against a party or attorney.
102 472 M
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(2) The judge has personal knowledge of disputed evi-
dentiary facts concerning the proceeding.
(3) The judge has been consulted or employed as an
attorney in the matter in controversy.
(4) The judge was a partner of a party, attorney for a
party, or a member of a law firm representing a party
within the preceding two years.
(5) The judge knows that he or she, individually or as a
fiduciary, or the judge’s spouse, parent or child wherever
residing, or any other member of the judge’s family resid-
ing in the judge’s household, has an economic interest in
the subject matter in controversy or in a party to the
proceeding or has any other more than de minimis interest
that could be substantially affected by the proceeding.
(6) The judge or the judge’s spouse, or a person within
the third degree of relationship to either of them, or the
spouse of such a person:
(a) is a party to the proceeding, or an officer, director or
trustee of a party;
(b) is acting as a lawyer in the proceeding;
(c) is known by the judge to have a more than de
minimis interest that could be substantially affected by the
proceeding;
(d) is to the judge’s knowledge likely to be a material
witness in the proceeding.
A judge is not disqualified merely because the judge’s
former law clerk is an attorney of record for a party in an
action that is before the judge or is associated with a law
firm representing a party in an action that is before the
judge.
(C) Procedure.
(1) Time for Filing. To avoid delaying trial and incon-
veniencing the witnesses, a motion to disqualify must be
filed within 14 days after the moving party discovers the
ground for disqualification. If the discovery is made within
14 days of the trial date, the motion must be made
forthwith. If a motion is not timely filed, untimeliness,
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including delay in waiving jury trial, is a factor in deciding
whether the motion should be granted.
(2) All Grounds to be Included; Affidavit. In any motion
under this rule, the moving party must include all grounds
for disqualification that are known at the time the motion
is filed. An affidavit must accompany the motion.
(3) Ruling. The challenged judge shall decide the mo-
tion. If the challenged judge denies the motion,
(a) in a court having two or more judges, on the request
of a party, the challenged judge shall refer the motion to the
chief judge, who shall decide the motion de novo;
(b) in a single-judge court, or if the challenged judge is
the chief judge, on the request of a party, the challenged
judge shall refer the motion to the state court administra-
tor for assignment to another judge, who shall decide the
motion de novo.
(4) Motion Granted. When a judge is disqualified, the
action must be assigned to another judge of the same court,
or, if one is not available, the state court administrator
shall assign another judge.
(D) Remittal of Disqualification. If it appears that there
may be grounds for disqualification, the judge may ask the
parties and their lawyers to consider, out of the presence of
the judge, whether to waive disqualification. If, following
disclosure of any basis for disqualification other than
personal bias or prejudice concerning a party, the parties
without participation by the judge, all agree that the judge
should not be disqualified, and the judge is then willing to
participate, the judge may participate in the proceedings.
The agreement shall be in writing or placed on the record.
C
ORRIGAN
,J.(concurring). I concur with the lead
opinion in this case and write separately to respond to
Justice W
EAVER
’s now-familiar views regarding this
Court’s recusal procedures. (See In re JK, 468 Mich
1239 [2003]; Gilbert v DaimlerChrysler Corp, 469 Mich
889 [2003].)
104 472 M
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,J.
All the members of this Court serve with the knowl-
edge that “[t]he Due Process Clause requires an unbi-
ased and impartial decisionmaker.” Cain v Dep’t of
Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996). It
is therefore standard practice for each justice of this
Court to voluntarily recuse himself or herself when the
justice cannot participate impartially.
In her concurring statement, Justice W
EAVER
cor-
rectly points out that a justice may choose whether to
publish his or her reasons for recusal. There is nothing
secretive or sinister in this tradition. Indeed, Justice
W
EAVER
acknowledges that over an eight-year period
she herself declined to publish reasons for her nonpar-
ticipation in approximately 251 cases.
1
Like justices of the Michigan Supreme Court, the
justices of the United States Supreme Court sometimes
do and sometimes do not state their reasons for deter-
mining whether to participate in a decision. See, e.g.,
Cheney v United States Dist Court for the Dist of
Columbia, 541 US 913; 124 S Ct 1391; 158 L Ed 2d 225
(2004); Intel Corp v Advanced Micro Devices, Inc, 542
US 241; 124 S Ct 2466; 159 L Ed 2d 355 (2004); United
States v Hatter, 532 US 557; 121 S Ct 1782; 149 L Ed 2d
820 (2001); Fed Election Comm v NRA Political Victory
Fund, 513 US 88; 115 S Ct 537; 130 L Ed 2d 439 (1994);
Arizona v United States Dist Court for the Dist of
Arizona, 459 US 1191; 103 S Ct 1173; 75 L Ed 2d 425
(1983); Laird v Tatum, 409 US 824; 93 S Ct 7; 34 L Ed
2d 50 (1972). Several of our sister states follow a similar
recusal procedure.
2
1
Ante at 97.
2
Much like Michigan, many states have adopted judicial canons
informed by the Model Code of Judicial Conduct. See Colorado Code of
Judicial Conduct, Ch 24, Canon 3(C) and (E); Iowa Code of Judicial
Conduct, Ch 51, Canon 3(C) and (D); Fla Stat Ann Code of Judicial
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Like Justice W
EAVER
’s 251 pre-2003 recusal decisions
without explanation, the thirty-one recusal decisions by
the remaining six members of the Court over the past
two years comport with our Constitution
3
and the
Michigan Court Rules. Justice W
EAVER
is, of course,
entitled to now disagree with our traditional recusal
procedures, and as she notes, ADM 2003-26 was opened
on May 20, 2003, in response to her concerns. That file
is being considered by this Court. The same is true for
its predecessor, ADM 2003-24, which this Court opened
on April 30, 2003, to consider the disqualification rule
when a justice participated in a case at the Court of
Appeals.
In addition, in now-closed administrative files, this
Court has already considered local judicial disqualifica-
tion rules, justices’ participation in cases, and amend-
ing or interpreting MCR 2.003. See ADM 2002-41
(opened October 1, 2002, and closed April 2, 2003);
ADM 1999-60 (opened November 30, 1999, and closed
Conduct, Canon 3(E) and (F); New York Code of Judicial Conduct, Canon
3(E) and (F); Ohio Code of Judicial Conduct, Canon 3(G) and (H).
3
The recusal standards that Justice W
EAVER
advances rest on her
interpretation of Const 1963, art 6, § 6. Justice W
EAVER
’s own prior
positions are inconsistent in this regard. For instance, in Gilbert v
DaimlerChrysler Corp, 469 Mich 883 (2003), she chose to not participate
with respect to other justices on motions for disqualification because she
felt it appropriate to decide only whether she herself should participate,
and not whether other justices should do so. Such a posture can only be
understood as characterizing a denial of a motion for disqualification as
an individualized determination made by each justice, and not as a
“[d]ecision[] of the supreme court” for purposes of art 6, § 6. Interest-
ingly, in a number of what are indisputably “[d]ecisions of the supreme
court,” Justice W
EAVER
chose to offer no reasons or explanation for her
own positions. See, e.g., Taylor v Gate Pharmaceuticals, 468 Mich 1, 19;
658 NW2d 127 (2003) (W
EAVER
, J., “concurred in the result only”); People
vYost, 468 Mich 122, 134; 659 NW2d 604 (2003) (“concurred in the result
only”); Nemeth v Abonmarche Dev, Inc, 457 Mich 16, 44; 576 NW2d 641
(1998) (“concurred only in the result”); People v Jendrzejewski, 455 Mich
495, 521; 566 NW2d 530 (1997) (“concurred only in the result”).
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October 6, 2000); ADM 1999-28 (opened April 30, 1999,
and closed January 4, 2001; reopened May 1, 2001, and
closed April 18, 2002); ADM 1992-18 (discussed June 4,
1992, and closed September 1994); ADM 1991-22 (re-
ported November 7, 1991, and closed September 1,
1995). In short, like Justice W
EAVER
, the rest of this
Court is cognizant of the “need to have clear, fair,
orderly, and public procedures” in place with respect to
the administration of justice.
4
Y
OUNG
, J., took no part in the decision of this case.
4
Ante at 101.
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MAGEE v DAIMLERCHRYSLER CORPORATION
Docket No. 126219. Decided March 8, 2005. On application by the
defendant for leave to appeal, the Supreme Court, after hearing
oral argument on whether the application should be granted and
in lieu of granting leave, reversed part of the judgment of the
Court of Appeals and remanded the case to the circuit court for
reinstatement of the order of summary disposition for the defen-
dant.
Jacquelyn V. Magee brought an action in the Macomb Circuit Court
against DaimlerChrysler Corporation, alleging sexual harassment,
sex and age discrimination, retaliation, and constructive discharge
from employment. The defendant moved for summary disposition,
arguing that the action was barred by the statute of limitations
because it was not brought within three years of any of the alleged
acts of discrimination or retaliation. The trial court, James M.
Biernat, Sr., J., granted the defendant’s motion. The Court of
Appeals, S
CHUETTE
,P.J., and M
ETER
and O
WENS
, JJ., affirmed the
grant of summary disposition with regard to the constructive
discharge claim and reversed the grant of summary disposition with
regard to the other claims. Unpublished memorandum opinion,
issued March 2, 2004 (Docket No. 243847). The Court’s decision was
based on the fact that the action was brought within three years of
the date that the plaintiff resigned her employment. The defendant
sought leave to appeal.
In an opinion per curiam, signed by Chief Justice T
AYLOR
, and
Justices C
ORRIGAN,
Y
OUNG,
and M
ARKMAN
, the Supreme Court held:
The Court of Appeals erred in concluding that the plaintiff’s
claims accrued on the date she terminated her employment as
opposed to her last day of work. No discriminatory conduct is
alleged to have occurred after the plaintiff’s last day of work. The
claims were not timely filed within three years of that date. The
part of the Court of Appeals judgment that reversed part of the
judgment of the trial court must be reversed and the case must be
remanded to the trial court for reinstatement of the order granting
summary disposition in favor of the defendant with regard to all
the claims brought by the plaintiff.
Justice W
EAVER
, concurring, stated that she concurs in the
result of the opinion per curiam because the applicable three-year
108 472 M
ICH
108 [Mar
period of limitations began to run when the plaintiff went on
medical leave on September 12, 1998, and the plaintiff’s claims
were not filed within three years of that date. The trial court
correctly granted summary disposition in favor of the defendant.
Affirmed in part, reversed in part, and remanded to the circuit
court.
Justice C
AVANAGH
, joined by Justice K
ELLY
, dissenting, stated
that the defendant’s failure to stop the harassment after the
plaintiff made repeated complaints was discriminatory conduct.
The conduct occurred during the three years that preceded the
filing of the complaint; therefore, the complaint was timely filed.
Tucker & Hughes, P.C. (by Juanita Gavin Hughes),
for the plaintiff.
Cattel, Tuyn & Rudzewicz, PLLC (by Tomas A. Cattel
and Debra A. Colby), for the defendant.
P
ER
C
URIAM
. In this case involving the Civil Rights Act,
the Court of Appeals held that plaintiff’s claims of sexual
harassment, sex and age discrimination, and retaliation
were timely filed, because the lawsuit was brought
within three years of the date she resigned her employ-
ment with defendant.
1
We conclude that plaintiff’s claims were not filed
within the limitations period because none of the alleged
discriminatory or retaliatory conduct occurred within
the three years that preceded the filing of the complaint.
We therefore reverse that part of the judgment of the
Court of Appeals and remand the matter to the trial
court for reinstatement of the trial court’s grant of
summary disposition to defendant.
I
Plaintiff Jacquelyn Magee was an hourly production
employee who began work for defendant Daimler-
1
Unpublished memorandum opinion, issued March 2, 2004 (Docket
No. 243847).
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Chrysler in 1976. She went on medical leave for emo-
tional distress on September 12, 1998, and, without
first returning to work, resigned her job on February 2,
1999.
On February 1, 2002, Magee filed a lawsuit under the
Civil Rights Act, MCL 37.2101 et seq., claiming that she
had been unlawfully discriminated against and ha-
rassed during most of her twenty-two years at Daimler-
Chrysler. Magee’s complaint lists separate counts for
sex harassment based on hostile work environment, sex
harassment based on quid pro quo harassment, retali-
ation, sex discrimination, and age discrimination.
2
In her complaint, Magee alleges that she suffered
harassment from the 1980s until her last day of work on
September 12, 1998, and that her supervisors periodi-
cally retaliated against her during this period as a result
of her resistance to the harassment. Magee alleges that
this constant harassment caused her to leave her job at
DaimlerChrysler on September 12, 1998, and that she
decided to resign on February 2, 1999, because she
anticipated that the harassment would continue if she
returned.
DaimlerChrysler moved for summary disposition,
asserting that Magee’s February 1, 2002, complaint
failed to allege any discriminatory acts after September
12, 1998, and that the complaint was therefore not filed
within the three-year period of limitations applicable to
Civil Rights Act claims, MCL 600.5805(10).
The trial court initially denied DaimlerChrysler’s
motion without prejudice, allowing Magee to amend her
complaint to allege harassment or retaliation occurring
2
Magee’s complaint also includes a separate count alleging construc-
tive discharge. The trial court dismissed this count, and the Court of
Appeals affirmed the trial court’s ruling. Magee did not appeal, and the
dismissal of that claim is not before this Court.
110 472 M
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up to her February 2, 1999, resignation. However,
because Magee’s amended complaint continued to al-
lege only harassment and retaliation through Septem-
ber 12, 1998, her last day of work, the trial court
granted DaimlerChrysler’s motion and dismissed Mag-
ee’s complaint.
Magee appealed the trial court’s ruling to the Court
of Appeals, which relied on this Court’s recent decision
in Collins v Comerica Bank, 468 Mich 628; 664 NW2d
713 (2003), to reverse the lower court’s dismissal of the
harassment, retaliation, and discrimination claims. The
Court of Appeals concluded that these claims were
timely, because they were filed within three years of the
date of Magee’s resignation.
DaimlerChrysler then sought leave to appeal to this
Court. After hearing oral argument from both parties
on the application, this Court has now determined that
the Court of Appeals misapplied Collins and errone-
ously reinstated Magee’s Civil Rights Act claims.
II
In the absence of disputed facts, whether a cause of
action is barred by the applicable statute of limitations
is a question of law, which this Court reviews de novo.
Boyle v Gen Motors Corp, 468 Mich 226, 229-230; 661
NW2d 557 (2003). Likewise, this Court reviews de novo
rulings on summary disposition motions. Neal v Wilkes,
470 Mich 661, 664; 685 NW2d 648 (2004).
III
In Collins, supra at 633, this Court held that a cause
of action for discriminatory termination does not accrue
until the date of termination. The plaintiff employee,
Gwendolyn Collins, was suspended pending an investi-
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gation; when the investigation was completed several
weeks later, her employment was terminated. Within
three years of her termination, Collins filed a com-
plaint alleging that her termination was the result of
race and gender discrimination. The Court of Appeals
ruled that Collins’s suit was not timely under the
three-year period of limitations because her causes of
action accrued on the last day that she actually per-
formed employment duties (as opposed to her later
termination date). This Court disagreed with the
Court of Appeals last-day-worked analysis and re-
versed, holding that a claim for discriminatory dis-
charge cannot arise until a claimant has actually been
discharged. Id.
Relying on Collins, the Court of Appeals in this case
reasoned that Magee’s claim also accrued on her
termination date as opposed to her last day of work.
The Court acknowledged that Magee resigned, and
was not terminated. But it found significant that “her
last day of work was followed by a period in which she
was on a medical leave of absence” and that she was
employed by DaimlerChrysler while on leave. Accord-
ingly, it concluded that her causes of action, if any,
arose on February 2, 1999.
The Court of Appeals reliance on Collins to reinstate
Magee’s claims of sexual harassment, sex and age
discrimination, and retaliation is misplaced. Magee was
never terminated from her employment and does not
allege discriminatory termination. She bases her Civil
Rights Act claims on alleged discriminatory conduct
that occurred before her leave of absence. Indeed, when
given a chance to amend her complaint to plead claims
falling within the period of limitations, Magee was
unable to do so. Collins, a discriminatory termination
case, simply does not apply in this situation.
112 472 M
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To determine whether Magee’s claims were timely
filed, we look to MCL 600.5805(10), which establishes
that the applicable period of limitations is three years
from the date of injury. Because Magee alleged no
discriminatory conduct occurring after September 12,
1998, the period of limitations on Magee’s claims
expired, at the latest, three years from that date, or by
September 12, 2001. Accordingly, as the trial court
held, Magee’s February 1, 2002, complaint was not
timely filed.
The dissent argues that the defendant violated the
Civil Rights Act within the three years preceding the
filing of plaintiff’s claim by failing to “prevent future
harassment....” Post at 115. This interpretation of
the Civil Rights Act amounts to a continuing violations
doctrine in which an employer is continuously liable
from the time it or its agent violates the act until the
time that violation is remedied by the employer. Thus,
in Justice C
AVANAGH
’s view, a plaintiff subjected to a
hostile work environment on December 31, 2005, may
file a timely complaint in December 2030 if the em-
ployer has failed to remedy the sexual harassment in
the ensuing twenty-five years. This theory renders
nugatory the period of limitations established by the
Legislature in MCL 600.5805(10). It is therefore a
theory we must reject.
3
For these reasons, we reverse the relevant part of the
judgment of the Court of Appeals and remand this case
to the Macomb Circuit Court for reinstatement of the
order granting DaimlerChrysler’s motion for summary
disposition.
T
AYLOR
, C.J., and C
ORRIGAN,
Y
OUNG
, and M
ARKMAN
,JJ.,
concurred.
3
Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686
(2001).
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W
EAVER,
J. (concurring). I concur in the result of the
opinion per curiam that reverses the Court of Appeals
judgment in part and remands the matter to the trial
court for reinstatement of the trial court’s grant of
summary disposition to defendant. Under the facts
pleaded by plaintiff, the three-year period of limita-
tions
1
began to run when plaintiff went on medical leave
on September 12, 1998, for emotional distress. Plain-
tiff’s claims were required to be filed within three years
of September 12, 1998. Because they were not, the trial
court was correct to grant summary disposition to
defendant. Therefore, I concur in the result of the
opinion per curiam.
C
AVANAGH,
J. (dissenting). I disagree with the majori-
ty’s contention that defendant engaged in no discrimi-
natory conduct during the three years that preceded the
filing of plaintiff’s complaint. Therefore, I must respect-
fully dissent.
Plaintiff began working for defendant in 1976. Over
the years, plaintiff complained of various incidents of
harassment. Plaintiff complained that her foreman was
making sexual advances toward her. When plaintiff was
assigned to a different supervisor, her former foreman
still worked in the same complex and continued to
harass her. Because of the harassment, plaintiff was
ordered by her psychiatrist to take an approximately
four-month medical leave. When plaintiff returned
from her medical leave, her former foreman was still
working in the same complex as plaintiff.
A subsequent foreman of plaintiff’s also made sexual
advances toward her, including intentionally touching
plaintiff’s breast. For an entire year, plaintiff also
complained to defendant about a sign in the men’s
1
MCL 600.5805(10).
114 472 M
ICH
108 [Mar
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PINIONS BY
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EAVER
and C
AVANAGH
,JJ.
restroom that referred to plaintiff in a derogatory and
sexually suggestive manner. Because of the stress of the
harassment she continued to suffer, plaintiff was or-
dered to take another medical leave of absence.
While she was employed by defendant, plaintiff’s
union steward also made sexually suggestive comments
about plaintiff’s “ass” and touched her in an inappro-
priate manner. Plaintiff’s coworkers made sexually sug-
gestive comments about her body and began hitting her
with cardboard sticks. When plaintiff asked her union
steward to intercede, he just laughed and said, “Yea, hit
that ass.” Plaintiff repeatedly complained to defendant,
yet nothing was done. When plaintiff requested a trans-
fer, her union steward told her that she could transfer if
she had sex with him. Once plaintiff was transferred,
the union steward told her that she “owed” him and he
wanted her to have sex with him. He later stopped
plaintiff from training for another position because she
was not having sex with him. Plaintiff again complained
to a foreman, but he said there was nothing he could do.
Because of the stress plaintiff was suffering as a result
of the harassment, plaintiff was then ordered to take a
third medical leave.
Because defendant took no steps to stop the harass-
ment while plaintiff was on her third medical leave, she
was forced to decide not to return to the harassing
environment. Defendant’s discriminatory conduct in
failing to take steps to prevent future harassment
continued throughout plaintiff’s medical leave. Requir-
ing plaintiff to return to the harassing setting to work
in the unchanged environment would be unreasonable
and possibly dangerous to plaintiff’s health, considering
that her doctor had ordered three medical leaves be-
cause of the stress of the harassment. As plaintiff
explained, in order to have even been considered for a
2005] M
AGEE V
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AIMLER
C
HRYSLER
115
D
ISSENTING
O
PINION BY
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AVANAGH
,J.
possible transfer to another plant after having been out
on her third harassment-related medical leave, she
would have had to return to the plant she left and hope
for a transfer, despite that her multiple complaints had
garnered no response before or during her medical
leave. Thus, for plaintiff to be able to try and leave the
harassing environment, she would have had to return
to work with the same men who harassed her and whose
conduct necessitated that plaintiff take medical leaves
in the first place, without any assurance that defendant
would protect her.
This case presents a unique set of circumstances
because plaintiff’s doctor-ordered medical leave was
directly related to the harassment. Plaintiff’s final
medical leave was actually her third leave related to the
stress of the harassment she suffered. Defendant main-
tained a hostile work environment despite plaintiff’s
repeated complaints. Defendant’s failure to stop the
harassment after these complaints is, under the facts of
this case, discriminatory conduct. Because this conduct
occurred during the three years that preceded the filing
of plaintiff’s lawsuit, I find that her complaint was
timely filed. Accordingly, I respectfully dissent.
K
ELLY
, J., concurred with C
AVANAGH
,J.
116 472 M
ICH
108 [Mar
D
ISSENTING
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PINION BY
C
AVANAGH
,J.
ASSOCIATED BUILDERS AND CONTRACTORS v DEPARTMENT
OF CONSUMER & INDUSTRY SERVICES DIRECTOR
Docket No. 124835. Decided March 9, 2005. On application by the
plaintiff for leave to appeal, the Supreme Court, after hearing oral
argument on whether the application should be granted and in lieu
of granting leave, reversed and remanded for reconsideration by
the Court of Appeals.
The Associated Builders and Contractors, Saginaw Valley Area
Chapter, brought an action in the Midland Circuit Court against
the Director of the Department of Consumer and Industry Ser-
vices, now the Department of Labor and Economic Growth, and
the Midland County prosecuting attorney, seeking a declaratory
judgment regarding the constitutionality of the prevailing wage
act (PWA), MCL 408.551 et seq. Several parties were allowed to
intervene in the action. The trial court, Thomas L. Ludington, J.,
denied the defendants’ motions for summary disposition that
argued that the plaintiff had not met the “actual controversy”
requirement of MCR 2.605(A), granted the defendants’ motions
for summary disposition with regard to the plaintiff’s claim that
the PWA is unconstitutionally vague, and denied the motions with
regard to the plaintiff’s claim that the PWA unconstitutionally
delegates legislative authority. The defendants appealed to the
Court of Appeals by leave granted and the plaintiffs cross-
appealed. The Court, W
HITBECK
, C.J., and W
HITE
and D
ONOFRIO
,JJ.,
held that the plaintiffs had alleged no actual controversy under
MCR 2.605(A) and reversed the denial of the defendants’ motions
with regard to the claim of unconstitutional delegation of legisla-
tive authority and affirmed the dismissal of the plaintiff’s vague-
ness claim. Unpublished opinion per curiam, issued August 5, 2003
(Docket No. 234037). The plaintiff applied for leave to appeal in
the Supreme Court, which entered an order that oral arguments
be held with regard to the plaintiff’s application for leave to
appeal. 471 Mich 877 (2004).
In an opinion by Justice W
EAVER
, joined by Chief Justice
T
AYLOR
, and Justices C
ORRIGAN,
Y
OUNG
, and M
ARKMAN
, the Supreme
Court held:
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117
The plaintiff presented an “actual controversy” and may seek
declaratory relief under MCR 2.605(A). The Court of Appeals erred
in holding that the plaintiff could not seek declaratory relief
because it had alleged no actual controversy. The judgment of the
Court of Appeals must be reversed and the matter must be
remanded to the Court of Appeals for reconsideration and resolu-
tion of the defendants’ appeal and the plaintiff’s cross-appeal.
1. An actual controversy exists for purposes of MCR 2.605(A)
where a declaratory judgment is necessary to guide a plaintiff’s
future conduct in order to preserve his future rights. Although the
rule precludes a court from deciding hypothetical issues, a court is
not precluded from reaching issues before actual injuries or losses
have occurred. The essential requirement of the term “actual
controversy” under the rule is that the plaintiff plead and prove
facts that indicate an adverse interest necessitating the sharpen-
ing of the issues raised.
2. A plaintiff regulated by a criminal statute is not required to
submit evidence of a threat of imminent prosecution in order to
establish standing.
3. The plaintiff’s members suffer a concrete, not hypothetical,
injury because they either face criminal prosecution for a violation
of the statute or must avoid state-funded work entirely. Such
evidence establishes the existence of a legally protected interest,
causation, and redressibility. There was a justiciable controversy
presented in this matter.
Reversed and remanded.
Justice C
AVANAGH,
joined by Justice K
ELLY
, dissenting, stated
that leave to appeal should be granted in this matter so that the
consequences of determining that the plaintiff may bring an action
for declaratory judgment may be fully explored after full briefing
from the parties and interested amici.
1. A
CTIONS —
P
ARTIES —
S
TANDING
.
To have standing to bring an action where standing is not expressly
conferred by the Constitution or by statute, first, a plaintiff must
have suffered an injury in fact, that is an invasion of a legally
protected interest that is concrete and particularized and actual or
imminent, not conjectural or hypothetical, second, there must be a
causal connection between the injury and the conduct complained
of, the injury must be fairly traceable to the challenged action of
the defendant and not the result of the independent action of some
third party, and third, it must be likely, not merely speculative,
that the injury will be redressed by a favorable decision.
118 472 M
ICH
117 [Mar
2. A
CTIONS —
D
ECLARATORY
J
UDGMENTS —
A
CTUAL
C
ONTROVERSIES
.
An “actual controversy” exists for purposes of the court rule
regarding declaratory judgments where a declaratory judgment is
necessary to guide a plaintiff’s future conduct in order to preserve
his future rights; a court, although precluded from deciding
hypothetical issues, may reach issues before actual injuries or
losses have occurred; the essential requirement is that the plaintiff
plead and prove facts that indicate an adverse interest necessitat-
ing the sharpening of the issues raised (MCR 2.605[A]).
Masud, Patterson & Schutter, P.C. (by David John
Masud and Kraig M. Schutter), for Associated Builders
and Contractors, Saginaw Valley Area Chapter.
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, and Richard P. Gartner, Assistant
Attorney General, for the Consumer and Industry Ser-
vices Department Director.
Klimist, McKnight, Sale, McClow & Canzano, P.C.
(by John R. Canzano), for the Michigan State Building
& Construction Trades Council.
Schmeltzer, Aptaker & Shepard, P.C. (by Gary L.
Lieber and Katherine K. Brewer), and Klimist, McKnight,
Sale, McClow & Canzano, P.C. (by John R. Canzano), for
the Michigan Chapter of the National Electrical Contrac-
tors Association, Inc.; the Michigan Mechanical Contrac-
tors Association; and the Michigan Chapter of the Sheet
Metal Air Conditioning Contractors National Associa-
tion.
Gilbert, Smith & Borrello, P.C. (by David M. Gilbert),
for the Saginaw County Prosecuting Attorney.
W
EAVER,
J. Plaintiff, the Saginaw Valley Area Chapter
of Associated Builders and Contractors, brought this
action for declaratory and injunctive relief, challenging
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the constitutionality of the prevailing wage act (PWA).
1
Plaintiff argues that the PWA is unconstitutionally
vague and constitutes an unconstitutional delegation of
legislative authority to unions and union contractors.
The circuit court denied defendants’ motions for
summary disposition regarding the plaintiff’s claim
that the PWA constitutes an unconstitutional delega-
tion of legislative authority and dismissed plaintiff’s
vagueness claim. Defendants appealed and plaintiff
cross-appealed. The Court of Appeals reversed in part
and affirmed in part, holding that plaintiff could not
seek declaratory relief because plaintiff had alleged no
“actual controversy” under the Michigan court rule
governing declaratory judgments, MCR 2.605.
We reverse the decision of the Court of Appeals and
hold that plaintiff has presented an “actual contro-
versy” so that plaintiff can seek declaratory relief under
MCR 2.605. We do not address the substantive issue
regarding the constitutionality of the PWA; instead, we
remand to the Court of Appeals for reconsideration and
resolution of the defendants’ appeal and plaintiff’s
cross-appeal on the merits.
I
Plaintiff is the Saginaw Valley Area Chapter of Asso-
ciated Builders and Contractors. Associated Builders
and Contractors is a nonunion trade association with
over two hundred members in the construction indus-
try in thirteen Michigan counties.
Plaintiff’s members—contractors, subcontractors,
and builders among others—are required by the PWA
to pay their workers not less than the wage and benefits
1
MCL 408.551 et seq.
120 472 M
ICH
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prevailing in the locality on projects sponsored or fi-
nanced by the state. The PWA provides in relevant part:
Every contract executed between a contracting agent
and a successful bidder as contractor and entered into
pursuant to advertisement and invitation to bid for a state
project which requires or involves the employment of
construction mechanics...and which is sponsored or fi-
nanced in whole or in part by the state shall contain an
express term that the rates of wages and fringe benefits to
be paid to each class of mechanics by the bidder and all of
his subcontractors, shall be not less than the wage and
fringe benefit rates prevailing in the locality in which the
work is to be performed. [MCL 408.552.]
The PWA provides further that “[a]ny person, firm
or corporation or combination thereof, including the
officers of any contracting agent, violating the provi-
sions of this act is guilty of a misdemeanor.” MCL
408.557.
On July 12, 2000, plaintiff brought this declaratory
action challenging the constitutionality of the PWA.
Plaintiff alleges that the manner in which the prevail-
ing wage is determined under MCL 408.554 of the PWA
constitutes an unconstitutional delegation of legislative
authority to unions and union contractors.
2
Moreover,
2
MCL 408.554 provides:
The commissioner [the Department of Consumer and Industry
Services, now the Department of Labor and Economic Growth]
shall establish prevailing wages and fringe benefits at the same
rate that prevails on projects of a similar character in the locality
under collective agreements or understandings between bona fide
organizations of construction mechanics and their employers.
Such agreements and understandings, to meet the requirements of
this section, shall not be controlled in any way by either an
employee or employer organization. If the prevailing rates of
wages and fringe benefits cannot reasonably and fairly be applied
in any locality because no such agreements or understandings
exist, the commissioner shall determine the rates and fringe
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plaintiff alleges that the resulting determination is
unconstitutionally vague because it does not provide an
individual of ordinary intelligence notice of the conduct
that, if undertaken, would violate the statute.
Plaintiff named as a defendant, Kathleen Wilbur,
former Director of the Department of Consumer and
Industry Services (CIS), now the Department of Labor
and Economic Growth, which oversees the implemen-
tation of the PWA. Because the PWA is a criminal
statute, plaintiff also named Midland County’s pros-
ecuting attorney, who is charged with the enforcement
and prosecution of the PWA in Midland County, Michi-
gan.
The Saginaw County prosecutor and the Michigan
State Building & Construction Trades Council (MS-
BCTC) intervened by stipulation as defendants. Three
union contractor associations, the Michigan Chapter of
the National Electrical Contractors Association, Inc.
(NECA), the Michigan Mechanical Contractors Associa-
tion (MCA), and the Michigan Chapter of Sheet Metal &
Air Conditioning Contractors National Association
(SMACNA), also intervened by motion as defendants.
The Midland County prosecutor and defendant-
intervenor MSBCTC filed motions under MCR
2.116(C)(4), (8), and (10), arguing that the circuit court
lacked jurisdiction under MCR 2.605(A) because plain-
tiff’s complaint did not present an “actual controversy”
benefits for the same or most similar employment in the nearest
and most similar neighboring locality in which such agreements or
understandings do exist. The commissioner may hold public hear-
ings in the locality in which the work is to be performed to
determine the prevailing wage and fringe benefit rates. All pre-
vailing wage and fringe benefit rates determined under this
section shall be filed in the office of the commissioner of labor and
made available to the public.
122 472 M
ICH
117 [Mar
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as required by the court rule. The several defendants
also moved for summary disposition on the merits.
On December 15, 2000, the circuit court denied the
motions for summary disposition that argued that
plaintiff had not met the actual controversy require-
ment of MCR 2.605(A). Then, on March 20, 2001, the
circuit court ruled on the motions for summary dispo-
sition on the merits. The court granted the motions
regarding plaintiff’s vagueness challenge to the PWA.
However, the circuit court denied the motions regarding
plaintiff’s challenge to the PWA as an unconstitutional
delegation of legislative authority, thus allowing that
claim to proceed.
Defendants appealed by leave granted and plaintiffs
cross-appealed from the circuit court’s orders. The
Court of Appeals concluded that plaintiff had alleged no
“actual controversy” under MCR 2.605(A). Accordingly,
the Court of Appeals reversed the circuit court’s denial
of defendants’ motion for summary disposition of the
claim of unconstitutional delegation of legislative au-
thority and, in plaintiff’s cross-appeal, affirmed the
dismissal of plaintiff’s vagueness claim.
3
This Court ordered that oral argument be held with
regard to plaintiff’s application for leave to appeal.
4
II
This case is before us on appeals from orders regard-
ing motions for summary disposition, which we review
de novo. Maiden v Rozwood, 461 Mich 109; 597 NW2d
817 (1999). The interpretation and application of court
rules and statutes present a question of law that is also
3
Unpublished opinion per curiam of the Court of Appeals, issued
August 5, 2003 (Docket No. 234037).
4
471 Mich 877 (2004).
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reviewed de novo. Cardinal Mooney High School v
Michigan High School Athletic Ass’n, 437 Mich 75, 80;
467 NW2d 21 (1991).
III
Plaintiff seeks a declaratory judgment regarding the
constitutionality of the PWA. A declaratory judgment is
“[a] binding adjudication of the rights and status of
litigants...[which] is conclusive in a subsequent action
between the parties as to the matters declared....”
5
Declaratory judgments are procedural remedies. They
allow
parties to avoid multiple litigation by enabling litigants to
seek a determination of questions formerly not amenable
to judicial determination....
[6]
The availability of declaratory judgments in Michi-
gan is governed by MCR 2.605. The court rule provides
in pertinent part:
(A) Power to Enter Declaratory Judgment.
(1) In a case of actual controversy within its jurisdiction,
a Michigan court of record may declare the rights and other
legal relations of an interested party seeking a declaratory
judgment, whether or not other relief is or could be sought
or granted.
(2) For the purpose of this rule, an action is considered
within the jurisdiction of a court if the court would have
jurisdiction of an action on the same claim or claims in
which the plaintiff sought relief other than a declaratory
judgment.
The plain text of the declaratory judgment rule
makes clear that the power to enter declaratory judg-
5
Black’s Law Dictionary (6th ed), p 409.
6
Allstate Ins Co v Hayes, 442 Mich 56, 65; 499 NW2d 743 (1993)(cita-
tions omitted).
124 472 M
ICH
117 [Mar
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ments neither limits nor expands the subject-matter
jurisdiction of the court.
7
The court must have “juris-
diction of an action on the same claim or claims in
which the plaintiff sought relief....”
8
Moreover, the
rule requires that there be “a case of actual contro-
versy” and that a party seeking a declaratory judgment
be an “interested party,” thereby incorporating tradi-
tional restrictions on justiciability such as standing,
ripeness, and mootness.
9
This Court has described the “actual controversy”
requirement of MCR 2.605(A)(1) as “a summary of
justiciability as the necessary condition for judicial re-
lief.”
10
Thus,
if a court would not otherwise have subject matter juris-
diction over the issue before it or, if the issue is not
justiciable because it does not involve a genuine, live
controversy between interested persons asserting adverse
claims, the decision of which can definitively affect existing
legal relations, a court may not declare the rights and
obligations of the parties before it.
[11]
The requirement that a party demonstrate an interest
in the outcome that will ensure sincere and vigorous
advocacy is expressly subsumed in the declaratory judg-
7
Id. at 65 n 9.
8
MCR 2.605(A)(2).
9
The United States Supreme Court has recognized that
[j]usticiability is of course not a legal concept with a fixed content
or susceptible of scientific verification. Its utilization is the result-
ant of many subtle pressures, including the appropriateness of the
issues for decision by this Court and the actual hardship to the
litigants of denying them the relief sought.” [PoevUllman, 367 US
497, 508-509; 81 S Ct 1752;6LEd2d989(1961).]
10
Allstate, supra at 66.
11
Id. (citations omitted).
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ment rule, which allows the declaration of rights of an
“interested party....”
12
This Court has held that an “actual controversy”
under MCR 2.605(A)(1) exists
where a declaratory judgment or decree is necessary to
guide a plaintiff’s future conduct in order to preserve his
legal rights....
This requirement... prevents a court from deciding
hypothetical issues.
[13]
This Court has emphasized that although the actual
controversy requirement precludes a court from decid-
ing hypothetical issues, “a court is not precluded from
reaching issues before actual injuries or losses have
occurred.”
14
The essential requirement of the term
“actual controversy” under the rule is that plaintiffs
“plead and prove facts which indicate an adverse inter-
est necessitating the sharpening of the issues raised.”
15
The “actual controversy” and the “interested party”
requirements of MCR 2.605(A)(1) subsume the limita-
tions on litigants’ access to the courts imposed by this
Court’s standing doctrine. To have standing:
“First, the plaintiff must have suffered an ‘injury in
fact’ — an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) ‘actual or immi-
nent, not “conjectural” or “hypothetical.” ’ Second, there
must be a causal connection between the injury and the
conduct complained of — the injury has to be ‘fairly...
trace[able] to the challenged action of the defendant, and
not... th[e] result [of] the independent action of some
third party not before the court.’ Third, it must be ‘likely,’
12
Id. at 68.
13
Shavers v Attorney General, 402 Mich 554, 588-589; 267 NW2d 72
(1978).
14
Id. at 589.
15
Id.
126 472 M
ICH
117 [Mar
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as opposed to merely ‘speculative,’ that the injury will be
‘redressed by a favorable decision.’ ”
[16]
Yet without analysis of plaintiff’s standing under
Lee v Macomb Co Bd of Comm’rs, 464 Mich 726; 629
NW2d 900 (2001), the Court of Appeals panel below
concluded that plaintiff was not eligible for declaratory
relief because plaintiff had not established “that there
was an actual or imminently threatened prosecution of
any of its members, nor has plaintiff shown that a
declaratory judgment or decree is necessary to guide
its future conduct in order to preserve its legal rights
with respect to any particular contract or bid.” On this
basis, the Court of Appeals held that the circuit court
lacked jurisdiction to enter a declaratory judgment.
The Court of Appeals analysis regarding the availabil-
ity of declaratory relief under MCR 2.605 was too
restrictive.
It has been conceded by the defendant prosecutor
that it must enforce the PWA.
17
But regardless, neither
Lee, supra, nor the plain text of MCR 2.605 requires a
plaintiff regulated by a criminal statute to submit
evidence of a threat of imminent prosecution in order to
establish standing. It is sufficient to establish standing
under Lee, supra, that the members of plaintiff business
association are directly regulated by the PWA and must
16
Lee v Macomb Co Bd of Comm’rs, 464 Mich 726, 739; 629 NW2d 900
(2001), quoting Lujan v Defenders of Wildlife, 504 US 555, 560-561; 112
S Ct 2130; 119 L Ed 2d 351 (1992). This Court has declined to consider
whether the Legislature can confer standing more broadly than Lee’s
test. See Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich
608, 632; 684 NW2d 800 (2004). Because the PWA does not confer
standing by its own terms, plaintiff’s standing in this case is governed by
the test adopted in Lee, supra.
17
Thus, this case is distinguishable from Poe, supra at 508, where the
United States Supreme Court held that declaratory relief was improper
because there was no realistic fear of prosecution.
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conform their pay and benefit practices to that of union
contractors on state-funded projects under the stat-
ute.
18
Plaintiff’s members suffer a concrete, rather than a
hypothetical, injury because they either face criminal
prosecution for a violation of the statute or must avoid
state-funded work entirely.
19
Such evidence establishes
the existence of a legally protected interest, causation,
and redressibility as required by Lee, supra.
Moreover, as a previous Court of Appeals decision
addressing declaratory relief recognized:
“A declaratory action is a proper remedy to test the
validity of a criminal statute where it affects one in his
trade, business or occupation.” To afford a businessman
relief in such a situation without having first to be arrested
is one of the functions of the declaratory judgment proce-
dure.
[20]
We agree with the circuit court that the affidavits
submitted by plaintiff articulate
concrete risks of violations of the PWA as a result of
allegedly random changes to PWA rates, the lack of defini-
tion of PWA projects and the absence of PWA statutory
definitions for statutory language that may be material to
enforcement of the criminal sanctions.
Further, we agree with the circuit court’s conclusion
that the risks of enforcement of the statute, together
with the asserted character of the potential for viola-
tions of the PWA, present a justiciable controversy.
Plaintiff’s affidavits establish precisely the kind of
controversy that the declaratory judgment rule was
intended to cover.
18
MCL 408.552 and MCL 408.554.
19
MCL 408.557.
20
Strager v Wayne Co Prosecuting Attorney, 10 Mich App 166, 171; 159
NW2d 175 (1968) (citations omitted).
128 472 M
ICH
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IV
CONCLUSION
We reverse the Court of Appeals denial of declaratory
relief and remand to the Court of Appeals for reconsid-
eration and resolution of defendants’ appeal and plain-
tiff’s cross-appeal on the merits.
T
AYLOR,
C.J .
,
and C
ORRIGAN
,Y
OUNG,
and M
ARKMAN
,JJ.,
concurred with W
EAVER
,J.
C
AVANAGH,
J. (dissenting). I prefer to grant leave to
appeal in this case; therefore, I must respectfully dis-
sent. Determining that plaintiff may bring an action for
declaratory judgment may have ramifications far be-
yond the prevailing wage act, MCL 408.551 et seq., and
I believe that deciding this case without full briefing
from the parties and interested amici is not prudent.
Therefore, I would prefer the opportunity to fully
explore the consequences of today’s decision before
issuing an opinion.
K
ELLY
, J., concurred with C
AVANAGH
,J.
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AVANAGH
,J.
PEOPLE v YOUNG
Docket No. 124811. Argued November 9, 2004 (Calendar No. 2). Decided
March 29, 2005.
Wayne L. Young was convicted by a jury in the Wayne Circuit Court,
Patricia Fresard, J., of two counts of second-degree murder, one
count of assault with intent to commit armed robbery, one count of
possession of a firearm during the commission of a felony, and one
count of possession of a firearm by a person convicted of a felony.
The Court of Appeals, O
WENS
,P.J., and G
RIFFIN
and S
CHUETTE
,JJ.,
affirmed after rejecting the defendant’s contention that the trial
court’s failure to provide sua sponte a cautionary instruction to
the jury regarding the testimony of accomplices requires a reversal
under People v McCoy, 392 Mich 231 (1974). Unpublished opinion
per curiam, issued September 25, 2003 (Docket No. 240832). The
Supreme Court granted the defendant’s application for leave to
appeal. 470 Mich 869 (2004), mod 471 Mich 862 (2004).
In an opinion by Justice C
ORRIGAN
, joined by Chief Justice
T
AYLOR
, and Justices W
EAVER,
Y
OUNG,
and M
ARKMAN
, the Supreme
Court held:
The opinion in People v McCoy, which announced a rule
providing that a trial court’s failure to give a cautionary instruc-
tion on accomplice testimony upon a defense request requires
reversal of a conviction and that reversal may be required even in
the absence of a defense request if the issue of guilt is closely
drawn, must be overruled and the judgment of the Court of
Appeals must be affirmed.
1. The McCoy rule has no basis in Michigan law and is
inconsistent with MCL 768.29, which provides that the failure to
instruct on a point of law is not a ground for setting aside a verdict
unless the instruction is requested by the accused, and MCR
2.516(C), which states that a party may assign as error the failure
to give an instruction only if the party objects on the record before
the jury retires to consider the verdict. The first portion of the
McCoy rule, i.e., that reversal is automatically required when the
court fails to give an instruction upon request, conflicts with MCL
769.26, which states that no verdict shall be set aside or reversed
on the ground of misdirection of the jury unless in the opinion of
130 472 M
ICH
130 [Mar
the reviewing court, after an examination of the entire cause, it
shall affirmatively appear that the error complained of has re-
sulted in a miscarriage of justice.
2. An unpreserved claim that the court failed to give a caution-
ary accomplice instruction is reviewed only for plain error that
affects substantial rights under the framework set forth in People
v Grant, 445 Mich 535 (1994), and People v Carines, 460 Mich 750
(1999). In considering whether plain error exists, a reviewing
court must be mindful of the discretion historically accorded to
trial courts in deciding whether to give a cautionary accomplice
instruction. No plain error occurred in this case, where it was not
clear whether the witnesses claimed to have been accomplices
were in fact accomplices and where the prosecution presented
evidence of guilt beyond the testimony of the alleged accomplices.
Justice K
ELLY
, joined by Justice C
AVANAGH
, concurring, agreed
with the decision to affirm the judgment of the Court of Appeals,
but disagreed with the reasoning of the majority. This case does
not involve a closely drawn issue. An issue is closely drawn if a
credibility contest between the defendant and an alleged accom-
plice must be resolved in order to rule on it. Here, the defendant
did not testify and his credibility was not otherwise put at issue.
The defendant was not entitled to the cautionary instruction
permitted by People v McCoy. The Court of Appeals properly
determined that there was insufficient evidence to conclude that
Michael Martin and Eugene Lawrence were accomplices of the
defendant. The McCoy decision has no application under the facts
of this case. The opinion in McCoy does not contradict MCL 769.26
or MCR 2.516(C), fits well within the established rules of appellate
review, represents a valid rule of law that ensures the fair
administration of justice, and should not be struck down.
Affirmed.
C
RIMINAL
L
AW —
A
CCOMPLICE
T
ESTIMONY —
C
AUTIONARY
I
NSTRUCTIONS
.
An unpreserved claim on appeal that a trial court failed to give a
cautionary jury instruction regarding the testimony of a claimed
accomplice is reviewed for plain error that affects the substantial
rights of the defendant; the reviewing court must be mindful of the
discretion historically accorded to trial courts in deciding whether
to give a cautionary accomplice instruction.
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, Kym L. Worthy, Prosecuting Attor-
2005] P
EOPLE V
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OUNG
131
ney, Timothy A. Baughman, Chief of Research, Train-
ing, and Appeals, and Jon P. Wojtala, Assistant Pros-
ecuting Attorney, for the people.
State Appellate Defender (by Valerie R. Newman) for
the defendant.
C
ORRIGAN,
J. In People v McCoy, 392 Mich 231; 220
NW2d 456 (1974), this Court invented a new rule
regarding cautionary instructions on accomplice testi-
mony. That rule provided that the trial court’s failure to
give a cautionary instruction upon a defense request
requires reversal of a conviction. Moreover, reversal
may be required even in the absence of a defense
request if the issue of guilt is “closely drawn.” We reject
the McCoy rule because it has no basis in Michigan law.
Indeed, it contravenes long-standing authorities accord-
ing discretion to trial courts in deciding whether to
provide a cautionary instruction on accomplice testi-
mony. Moreover, the McCoy rule is inconsistent with
MCL 768.29, which provides that the failure to instruct
on a point of law is not a ground for setting aside a
verdict unless the instruction is requested by the ac-
cused, and MCR 2.516(C), which states that a party may
assign as error the failure to give an instruction only if
the party objects on the record before the jury retires to
consider the verdict.
We further clarify that an unpreserved claim of
failure to give a cautionary accomplice instruction may
be reviewed only in the same manner as other unpre-
served arguments on appeal. That is, appellate review is
confined to the plain-error test set forth in People v
Grant, 445 Mich 535; 520 NW2d 123 (1994), and People
v Carines, 460 Mich 750; 597 NW2d 130 (1999). We
therefore affirm the judgment of the Court of Appeals,
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because it reached the correct result in affirming defen-
dant’s convictions and sentences.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
Defendant shot and killed two people in an
execution-style slaying while robbing a drug house in
Detroit. Among other evidence of guilt, the prosecution
presented testimony from two witnesses whom defen-
dant now claims were his accomplices, Michael Martin
and Eugene Lawrence.
Martin testified that defendant came to his house
and asked him for a gun to rob someone. Martin had no
gun. Defendant then spoke on the telephone to Martin’s
brother-in-law, Lawrence. Martin did not hear their
conversation. Martin then drove defendant to
Lawrence’s house. After they arrived, defendant and
Lawrence spoke in a back room away from Martin, who
again could not hear their conversation.
Lawrence testified that during this conversation, de-
fendant asked him for a gun because some men had
threatened him. Defendant did not mention to Lawrence
any plan to rob a drug house. Lawrence did furnish a gun
to defendant. Martin and defendant then drove back to
Martin’s home. Martin went inside his home while
defendant walked off in the direction of a nearby drug
house.
Defendant later telephoned Martin, stating that he
was planning to rob a drug house. Martin hung up.
Later that day, defendant visited Martin’s home and
admitted that he had shot the two victims in the head.
After defendant left, Martin contacted Lawrence. Mar-
tin and Lawrence then went to defendant’s home.
Defendant told them that he was angry because he had
killed the victims for only six rocks of crack cocaine.
Defendant called an unknown person and directed him
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to tell Martin where to find the gun. Defendant even-
tually directed Martin and Lawrence to a field near
Martin’s home where Martin found the gun.
The police questioned Martin twice. During the sec-
ond interview, he disclosed what had happened. The
police then retrieved the murder weapon. Martin and
Lawrence were never charged with a crime in connec-
tion with the murders.
In addition to the testimony of Martin and Lawrence,
the prosecution presented other evidence of defendant’s
guilt. One witness testified that defendant had also
asked him for a gun. Another witness, Ronald Mathis,
had seen defendant in the drug house just before the
murders occurred. At that time, defendant offered to
sell Mathis a gun. Mathis then left the premises. Upon
his return approximately fifteen minutes later, Mathis
discovered the victims’ bodies and noted that defendant
was gone. Finally, a cigarette butt recovered at the
murder scene contained deoxyribonucleic acid (DNA)
material that matched defendant’s DNA.
Defendant was charged with several offenses, includ-
ing first-degree murder, MCL 750.316. The jury con-
victed defendant of two counts of second-degree mur-
der, MCL 750.317; one count of assault with intent to
commit armed robbery, MCL 750.89; one count of
possession of a firearm during the commission of a
felony, MCL 750.227b; and one count of possession of a
firearm by a person convicted of a felony, MCL 750.224f.
Defendant was sentenced to concurrent terms of forty-
five to seventy years’ imprisonment for the second-
degree murder convictions, forty to sixty years’ impris-
onment for the assault conviction, and two to five years’
imprisonment for the felon in possession of a firearm
conviction. Those sentences are to be served consecu-
tively to the two-year term of imprisonment for the
felony-firearm conviction.
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The Court of Appeals affirmed defendant’s convic-
tions.
1
It rejected defendant’s contention that the trial
court had erred under McCoy in failing to sua sponte
provide a cautionary instruction on accomplice testi-
mony, concluding that: (1) this case did not present a
closely drawn credibility contest, and (2) it was not clear
that Martin and Lawrence were accomplices.
We granted defendant’s application for leave to ap-
peal. 470 Mich 869 (2004), mod 471 Mich 862 (2004).
II. STANDARD OF REVIEW
Whether the McCoy rule has a basis in Michigan law
and whether it is consistent with MCL 768.29 and MCR
2.516(C) are questions of law that we review de novo.
Jenkins v Patel, 471 Mich 158, 162; 684 NW2d 346
(2004). Moreover, as discussed later in this opinion, the
decision whether to give a cautionary accomplice in-
struction falls within the trial court’s sound discretion.
MCL 768.29; People v Dumas, 161 Mich 45, 48-49; 125
NW 766 (1910); People v Wallin, 55 Mich 497, 505; 22
NW 15 (1885). We therefore review that decision for an
abuse of discretion. Finally, where, as here, the defen-
dant failed to preserve his claim, our review is confined
to the plain-error framework set forth in Grant and
Carines.
III. ANALYSIS
A. LEGAL BACKGROUND
In McCoy, this Court discussed dangers that inhere
in accomplice testimony, including “ ‘the effect of fear,
threats, hostility, motives, or hope of leniency.’ ” McCoy,
1
Unpublished opinion per curiam, issued September 25, 2003 (Docket
No. 240832).
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supra at 236, quoting 30 Am Jur 2d, Evidence, § 1148,
p 323. The McCoy Court stated that in People v Jenness,
5 Mich 305, 330 (1858), this Court referred to a judge’s
duty to comment, where warranted, on the nature of
accomplice testimony. The McCoy Court acknowledged,
however, that subsequent case law reflected that the
trial court had discretion in deciding whether to provide
a cautionary accomplice instruction. See Dumas, supra.
The McCoy Court also acknowledged that federal
courts have not articulated a definitive rule regarding
cautionary instructions on accomplice testimony. In-
deed, the United States Supreme Court refused to
reverse a conviction on the basis of a failure to give such
an instruction in Caminetti v United States, 242 US
470, 495; 37 S Ct 192; 61 L Ed 442 (1917). The
Caminetti Court stated that “there is no absolute rule of
law preventing convictions on the testimony of accom-
plices if juries believe them.” Id.
Despite these authorities, the McCoy Court invented
a novel rule: “For cases tried after the publication of
this opinion, it will be deemed reversible error...tofail
upon request to give a cautionary instruction concern-
ing accomplice testimony and, if the issue is closely
drawn, it may be reversible error to fail to give such a
cautionary instruction even in the absence of a request
to charge.” McCoy, supra at 240.
Justice C
OLEMAN
dissented in McCoy. She cited MCL
768.29, which provides: “The failure of the court to
instruct on any point of law shall not be ground for
setting aside the verdict of the jury unless such instruc-
tion is requested by the accused.” She also quoted the
predecessor to MCR 2.516(C), GCR 1963, 516.2: “No
party may assign as error the giving or the failure to
give an instruction unless he objects thereto before the
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jury retires to consider the verdict, stating specifically
the matter to which he objects and the grounds of his
objection.”
Justice C
OLEMAN
noted that the articulation in Jen-
ness of a duty to comment on accomplice testimony
predated both the statute and the court rule. Moreover,
Jenness “was not a rigorously applied precedent.” Mc-
Coy, supra at 248. For example, in Dumas, this Court
stated:
It is the long settled rule in this State that the credibility
of an accomplice, like that of any other witness, is a
question exclusively for the jury. And while there have been
intimations, rather than rulings, to the effect that it is
proper, or is not improper, especially in cases where an
accomplice is the sole witness upon a material point, for the
trial court to direct the attention of the jury to the
circumstance and invite the exercise of caution upon the
part of the jury, we know of no decision of this court in
which it is held or intimated that the failure of the court to
indulge in voluntary comment is ground for reversal.
[Dumas, supra at 48.]
The Dumas Court had also quoted from Wallin,
supra, where the trial court had refused a defense
request to instruct the jury regarding circumstances
that tended to discredit a witness. Chief Justice C
OOLEY
,
writing for a unanimous Court in Wallin, rejected the
defense argument:
“We repeat that instructions respecting the credibility of
witnesses, which involve no question of law, are not matter
of right. The judge is under no obligation to comment upon
the facts; he may, if he chooses, confine himself strictly to
laying down such rules of law as must guide the action of
the jury, and leave the facts to them without a word of
comment. In many cases this is no doubt the desirable
course. And it is always within the discretion of the judge to
adopt it.” [Id. at 48-49, quoting Wallin, supra at 505.]
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Justice C
OLEMAN
’s dissenting opinion in McCoy also
noted that the Court of Appeals had rejected an argu-
ment for a cautionary accomplice instruction in People v
Sawicki, 4 Mich App 467; 145 NW2d 236 (1966), in part
because defense counsel on cross-examination had fully
explored the circumstances of the accomplice’s testi-
mony:
In a criminal case it is not only proper but it is the duty
of counsel for defendant to place before the jury all circum-
stances surrounding the people’s witness upon the stand,
as well as any fact which would have any reasonable
tendency to affect their credibility. It is the function of the
jury to decide first if the witness is interested, and second
if the witness’ interest has affected the credibility of his
testimony. The trial judge is not required to comment in his
instruction concerning a witness’ interest since it bears
upon the question of credibility which is reserved to the
jury. [Id. at 475 (citations omitted).]
In light of these authorities, Justice C
OLEMAN
con-
cluded in McCoy that neither statute nor case law
required the court to give a cautionary accomplice
instruction in the absence of a request. Moreover, the
failure to so instruct did not deny the defendant in
McCoy a fair trial, because “the accomplice was thor-
oughly cross-examined and the jury fully aware of all
facets of his involvement. The judge correctly in-
structed that the testimony of all witnesses should be
considered as to motive, prejudice, bias or interest in
the outcome.” McCoy, supra at 250.
This Court discussed the holding in McCoy in People
v Reed, 453 Mich 685; 556 NW2d 858 (1996). In Reed,a
codefendant testified in a joint trial, and the defendant
argued on appeal that a cautionary accomplice instruc-
tion should have been given sua sponte. This Court
rejected that argument because such an instruction
would have prejudiced the codefendant.
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The Court in Reed also explained that McCoy does
not require automatic reversal for failure to instruct sua
sponte in a closely drawn case. Rather, McCoy says only
that such a failure to instruct may require reversal.
Before Reed, this Court had not established standards
for determining when the failure to instruct sua sponte
requires reversal. The Reed Court concluded that rever-
sal was not required where the accomplice’s potential
credibility problems have been plainly presented to the
jury by other means, such as through defense counsel’s
cross-examination of the alleged accomplice. Reed, su-
pra at 693.
The Reed Court did not require reversal because the
codefendant/accomplice’s credibility problems were
plainly apparent to the jury. Defense counsel and the
prosecutor had explored credibility problems during
cross-examination. Moreover, the accomplice was not a
prosecution witness, but was a codefendant, and thus
was not the beneficiary of any favorable bargains from
the prosecution.
In People v Gonzalez, 468 Mich 636; 664 NW2d 159
(2003), this Court questioned McCoy. We quoted MCL
768.29, which provides that “[t]he failure of the court to
instruct on any point of law shall not be ground for
setting aside the verdict of the jury unless such instruc-
tion is requested by the accused,” and MCR 2.516(C),
which states that “[a] party may assign as error the . . .
failure to give an instruction only if the party objects on
the record....”Wethen stated:
In this case, defendant neither requested a cautionary
accomplice instruction nor objected to the court’s failure to
give one. Therefore, defendant is precluded from arguing
that the omitted instruction was error. MCR 2.516(C).
Furthermore, because he failed to request the omitted
instruction, defendant is not entitled to have the verdict set
aside. MCL 768.29. Consequently, defendant’s only re-
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maining avenue for relief is for review under People v
Grant, 445 Mich 535; 520 NW2d 123 (1994).
Because defendant failed to object to the omitted in-
struction, defendant’s claim of error was forfeited. A for-
feited, nonconstitutional error may not be considered by an
appellate court unless the error was plain and it affected
defendant’s substantial rights. Grant, supra at 552-553.
[Gonzalez, supra at 642-643.]
We then concluded that no error occurred because
there was no evidence that the alleged accomplice was
involved in the crime, and because the cautionary
accomplice instruction would have been inconsistent
with the defense theory at trial. Because the defendant
could not demonstrate an error, he could not establish a
plain error that affected his substantial rights, and thus
he was not entitled to relief for the forfeited claim under
Grant.
B. ANALYSIS
The rule created in McCoy has no basis in Michigan
law. The McCoy rule mandates reversal of convictions
for failing to give a cautionary accomplice instruction
upon request, and allows reversal for failing to give
such an instruction sua sponte where the issue of guilt
is “closely drawn.” But as Justice C
OLEMAN
’s dissent in
McCoy demonstrates, this Court’s decisions have his-
torically accorded discretion to trial courts in deciding
whether to provide a cautionary accomplice instruction.
The mandatory rule invented in McCoy subverts this
historical discretion.
Moreover, the discretion that this Court had, before
McCoy, accorded to trial courts in this area is consistent
with our statutory law. MCL 768.29 states: “The court
shall instruct the jury as to the law applicable to the
case and in his charge make such comment on the
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evidence, the testimony and character of any witnesses,
as in his opinion the interest of justice may require.”
(Emphasis added.) The phrase “as in his opinion the
interest of justice may require” vests discretion in the
trial court to decide to what extent it is appropriate to
comment on matters such as the credibility of wit-
nesses. The McCoy Court failed to consider this provi-
sion of MCL 768.29.
Despite these authorities, the McCoy Court chose to
invent an unfounded rule. Indeed, in People v Atkins,
397 Mich 163, 171; 243 NW2d 292 (1976), this Court
acknowledged the lack of a historical basis for the
McCoy rule: “[T]he McCoy rule under discussion was
given prospective application for the reason that it went
beyond long-established Michigan precedent to the ef-
fect that special instructions regarding credibility was
[sic] a matter within the sound discretion of the trial
court.”
Further, the first portion of the McCoy rule, i.e., that
reversal is automatically required when the court fails
to give an instruction upon request, conflicts with MCL
769.26. That provision states:
No judgment or verdict shall be set aside or reversed or
a new trial be granted by any court of this state in any
criminal case, on the ground of misdirection of the jury, or
the improper admission or rejection of evidence, or for
error as to any matter of pleading or procedure, unless in
the opinion of the court, after an examination of the entire
cause, it shall affirmatively appear that the error com-
plained of has resulted in a miscarriage of justice.
As we explained in People v Lukity, 460 Mich 484; 596
NW2d 607 (1999), in light of MCL 769.26, a defendant
on appeal must demonstrate that a preserved noncon-
stitutional error was not harmless by persuading the
reviewing court that it is more probable than not that
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the error affected the outcome of the proceedings. “An
error is deemed to have been ‘outcome determinative’ if
it undermined the reliability of the verdict.” People v
Elston, 462 Mich 751, 766; 614 NW2d 595 (2000). See
also People v Rodriguez, 463 Mich 466, 474; 620 NW2d
13 (2000). The McCoy mandate of automatic reversal
for failing to give a cautionary accomplice instruction
upon request plainly contradicts MCL 769.26. Accord-
ingly, we reject the automatic-reversal portion of the
rule.
Next, the portion of the McCoy rule permitting
reversal in the absence of a defense request if the issue
of guilt is “closely drawn” contradicts MCL 768.29,
which states that “[t]he failure of the court to instruct
on any point of law shall not be ground for setting aside
the verdict of the jury unless such instruction is re-
quested by the accused,” and MCR 2.516(C), which says
that “[a] party may assign as error the... failure to
give an instruction only if the party objects on the
record ....”Asweexplained in Gonzalez, an appellate
court’s review of unpreserved claims is governed by
MCL 768.29 and MCR 2.516(C).
This Court in Reed correctly observed that McCoy
does not by its own terms require automatic reversal for
failure to instruct sua sponte where the issue of cred-
ibility is closely drawn. The McCoy Court said that
reversal may be required in the absence of a request, not
that reversal is automatic. The central flaw in this
aspect of the McCoy rule, however, is that it authorizes
reversal without regard to the plain-error analysis
required by Grant and Carines, by focusing solely on
whether the issue of guilt is closely drawn. As this
Court explained in Reed, potential credibility problems
in a closely drawn case may become plainly apparent to
a jury in the absence of a cautionary instruction.
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Fundamentally, it is the province of the jury to assess
the credibility of witnesses. In making that assessment,
the jury should decide whether witnesses harbor any
bias or prejudice. Dumas, supra; Wallin, supra; Saw-
icki, supra. And it is the role of defense counsel,
through cross-examination of prosecution witnesses
and closing argument, to expose potential credibility
problems for the jury to consider. Id. The McCoy
“closely drawn” rule fails adequately to take account of
these central components of our system of trial by jury.
For these reasons, we hold that, as with all unpre-
served claims of error, an unpreserved claim that the
court failed to give a cautionary accomplice instruction
may be reviewed only for plain error that affects sub-
stantial rights. An appellate court must follow the
Grant/Carines plain-error analysis, and only when the
defendant satisfies that test is reversal ever appropri-
ate. We discern no basis for treating this one category of
unpreserved claim any differently from other categories
of alleged error that a defendant has failed to preserve.
Moreover, in considering whether a plain error exists,
a reviewing court should be mindful of the discretion
historically accorded to trial courts in deciding whether
to give a cautionary accomplice instruction. Dumas,
supra; Wallin, supra.
Finally, applying the plain-error test to this case, we
conclude that defendant has not met his appellate
burden. A cautionary accomplice instruction was not
clearly or obviously required in this case. As the Court
of Appeals noted, it is not clear that Martin and
Lawrence were accomplices in any event. Moreover, the
prosecution presented evidence of guilt beyond the
testimony of the alleged accomplices, including testi-
mony from other witnesses and physical evidence that
defendant was at the murder scene. Further, defense
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counsel thoroughly cross-examined Martin and
Lawrence and challenged their testimony during closing
argument, thereby exposing their potential credibility
problems to the jury. The court also instructed the jury to
consider any bias, prejudice, or personal interest that a
witness might have. For these reasons, defendant has not
demonstrated a plain error that affected his substantial
rights.
IV. CONCLUSION
We conclude that the McCoy rule has no basis in
Michigan law and is inconsistent with MCL 769.26,
MCL 768.29, and MCR 2.516(C). A trial court has
discretion in deciding whether to give a cautionary
accomplice instruction. Also, an unpreserved claim that
the court failed to give a cautionary accomplice instruc-
tion may be reviewed only for plain error, under the
framework set forth in Grant and Carines. Accordingly,
we overrule McCoy and affirm the judgment of the
Court of Appeals.
T
AYLOR,
C.J., and W
EAVER,
Y
OUNG,
and M
ARKMAN,
JJ.,
concurred with C
ORRIGAN
,J.
K
ELLY,
J. (concurring). I would affirm the Court of
Appeals decision, but I strongly disagree with the
majority’s reasoning. The decision in People v McCoy
1
should not be applied to this case. It represents a valid
rule of law that we should retain, and the majority
should not use this case as a vehicle to abandon it.
McCOY IS INAPPOSITE
In McCoy, we stated:
1
392 Mich 231; 220 NW2d 456 (1974).
144 472 M
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ELLY
,J.
[I]t will be deemed reversible error... to fail upon
request to give a cautionary instruction concerning accom-
plice testimony and, if the issue is closely drawn, it may be
reversible error to fail to give such a cautionary instruction
even in the absence of a request to charge. [McCoy, supra at
240.]
Defendant did not request a cautionary instruction
in this case. To warrant giving the instruction, as
McCoy tells us, the issue must be “closely drawn.” Id.
An issue is said to be closely drawn if a credibility
contest between the defendant and an alleged accom-
plice must be resolved in order to rule on it. People v
Gonzalez, 468 Mich 636, 643 n 5; 664 NW2d 159 (2003);
McCoy, supra at 238-239.
This case does not involve a closely drawn issue. It is
not one in which contrary versions of the facts were
offered, leaving the jury to choose between them. In-
stead, the defense proceeded under the theory that the
prosecution would be unable to prove every element of
the charged offenses.
In argument before the jury, defense counsel at-
tacked the story offered by the prosecution. He tried to
show that the prosecution failed to meet the require-
ments for conviction. In some cases, to create a cred-
ibility contest between a defendant and an alleged
accomplice, the defendant would have to take the stand.
Other circumstances could arise as well that would
create a credibility contest. However, because defendant
in this case did not take the stand and his credibility
was not otherwise put at issue, he was not entitled to
the cautionary instruction permitted by McCoy.
2
Id.at
240.
2
At oral argument in this case, defense counsel admitted that McCoy
was a “narrow case” and did not fit the facts of this case.
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145
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ONCURRING
O
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ELLY
,J.
I also agree with the Court of Appeals that there was
insufficient evidence to conclude that Michael Martin
and Eugene Lawrence were defendant’s accomplices.
Whereas Martin accompanied defendant on some of his
travels on the day of the murders, he never agreed to
participate in the crime. In fact, he refused to partici-
pate. Martin may not have done enough to stop defen-
dant, but his failure does not make him defendant’s
accomplice legally.
Lawrence provided defendant with a gun. But the
evidence suggests that Lawrence was unaware that
defendant planned to use it to commit a felony. Defen-
dant asked Lawrence for the gun to protect himself
from a person who had threatened him. Although
insufficient evidence exists that Lawrence was defen-
dant’s accomplice, defense counsel implied during clos-
ing argument that Lawrence and Martin were defen-
dant’s accomplices.
The facts of the McCoy case were entirely different.
There, the police arrested an individual whom they
believed had been an accomplice in a robbery. The
accomplice admitted that he and McCoy had committed
the crime. Id. at 241 (C
OLEMAN
, J., dissenting). Here,
there was no such admission. All the evidence suggested
that Martin and Lawrence were not involved in the
crime. Because they were not accomplices, the trial
court did not err in failing to give the special instruction
on accomplice testimony. Id. at 238-240.
Hence, the McCoy decision has no application to this
case, and the majority offers no justification for reach-
ing and overruling it here. It is as inappropriate to
address McCoy in this case as it was in People v
Gonzalez, supra, in which Justice Y
OUNG
wrote:
[W]e conclude that there was no evidence of an accom-
plice in this case, and, therefore, McCoy’s “closely drawn”
146 472 M
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ELLY
,J.
rule is not implicated. For that reason, we do not reach the
question whether McCoy conflicts with MCL 768.29.
[Gonzalez, supra at 643 n 6.]
We should not do here what we chose not to do in
Gonzalez.
McCOY REPRESENTS A VALID RULE OF LAW
3
The majority accuses the McCoy decision of lacking
any basis in Michigan jurisprudence and of inventing a
novel rule of law. Those claims should be examined
more closely.
This Court stated long ago:
We think the credibility of an accomplice, like that of
any other witness, is exclusively a question for the jury;
and it is well settled that a jury may convict on such
testimony alone without confirmation. There is no good
sense in always applying the same considerations in every
case to every witness who may stand in the relation of
particeps criminis. We think it is the duty of a judge to
comment upon the nature of such testimony, as the
circumstances of the case may require; to point out the
various grounds of suspicion which may attach to it; to
call their attention to the various temptations under
which such witness may be placed, and the motives by
which he may be actuated; and any other circumstances
which go to discredit or confirm the witness, all of which
must vary with the nature and circumstances of each
particular case. [People v Jenness, 5 Mich 305, 330
(1858).]
3
Given that McCoy is inapposite, there is no need to apply it to the
facts of this case. However, because the majority has decided to overturn
McCoy, I provide a full discussion of the rules of law laid out in that case.
Therefore, I will discuss both the requested cautionary instructions and
sua sponte instructions. I feel that both were wisely recognized in McCoy
and that both fit well within the established framework of appellate
review in this state.
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147
C
ONCURRING
O
PINION BY
K
ELLY
,J.
This was a rule of law that has been endorsed by this
Court repeatedly over the past 134 years.
4
Obviously,
because McCoy represents a natural growth of that
history, it is neither novel nor lacking in legal basis.
REQUESTED CAUTIONARY INSTRUCTIONS AND ABUSE
OF DISCRETION/HARMLESS ERROR REVIEW
Not only does McCoy have substantial historical
support, it fits well within Michigan’s long established
framework of appellate review. McCoy
5
holds that “it
will be deemed reversible error...tofail upon request
to give a cautionary instruction concerning accomplice
testimony ....”
The majority concludes that this rule contradicts the
review established for both abuse of discretion and
harmless error issues. It accuses McCoy of ignoring the
discretion of the trial court to instruct the jury.
The opposite is true. McCoy explicitly recognizes the
trial court’s discretion and hews to the abuse of
discretion standard. McCoy, supra at 237. Moreover, it
provides guidance to when the standard is met.
McCoy recognizes that it is an abuse of discretion for
a trial court to refuse to instruct a jury about the
inherent unreliability of accomplice testimony. Id.at
236-237. This is consistent with MCL 768.29.
6
If the
4
See People v Schweitzer, 23 Mich 301, 305 (1871), People v Hare,57
Mich 505, 518; 24 NW 843 (1885), People v Considine, 105 Mich 149, 163;
63 NW 196 (1895), and People v Koukol, 262 Mich 529, 532-533; 247 NW
738 (1933).
5
Supra at 240.
6
MCL 768.29 provides:
It shall be the duty of the judge to control all proceedings
during the trial, and to limit the introduction of evidence and the
argument of counsel to relevant and material matters, with a view
148 472 M
ICH
130 [Mar
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O
PINION BY
K
ELLY
,J.
trial court fails to give an accomplice instruction, it fails
to work toward “the expeditious and effective ascertain-
ment of the truth regarding the matters involved.”
MCL 768.29. And it fails to make the comments on the
evidence, the testimony, and the character of witnesses
that justice requires.
As McCoy noted, accomplice testimony is fraught
with dangers. Whether because of fear, threats, or
hostility caused by government overreaching or the
witness’s greed or hopes of leniency occasioned by
government deals, accomplice testimony has severe
credibility problems. Given this inherent weakness, a
skeptical approach to such testimony “ ‘is a mark of
the fair administration of justice.’ ” McCoy, supra at
236, quoting 30 Am Jur 2d, Evidence, § 1148, p 323.
Therefore, a court fails to meet the mark of fair
administration of justice when it omits a requested
accomplice instruction. Moreover, the omission consti-
tutes an abuse of discretion.
For the same reason, the McCoy rule does not violate
the tenets of review for harmless error. Given the
inherent unreliability of accomplice testimony, any con-
viction based on such testimony, absent a proper in-
struction, will affirmatively appear to be a miscarriage
of justice. The failure to give the instruction fails to
meet the mark. We should avoid letting the standards of
the Michigan criminal justice system fall below this
mark.
to the expeditious and effective ascertainment of the truth regard-
ing the matters involved. The court shall instruct the jury as to the
law applicable to the case and in his charge make such comment on
the evidence, the testimony and character of any witnesses, as in
his opinion the interest of justice may require. The failure of the
court to instruct on any point of law shall not be ground for setting
aside the verdict of the jury unless such instruction is requested by
the accused.
2005] P
EOPLE V
Y
OUNG
149
C
ONCURRING
O
PINION BY
K
ELLY
,J.
The inclusion of the accomplice witness instruction
ensures the fairness of the trial. Its exclusion, when it is
merited, undermines the reliability of the verdict. Ac-
cordingly, the error cannot be harmless. People v Krue-
ger, 466 Mich 50, 54; 643 NW2d 223 (2002).
SUA SPONTE INSTRUCTION AND REVIEW FOR PLAIN ERROR
McCoy states that it may be error requiring reversal
to fail to give the accomplice instruction if the issue is
closely drawn, even absent a request from counsel.
McCoy, supra at 240. The majority attacks this portion
of McCoy, claiming that it contradicts the established
review for plain error. A failure to instruct when there
was no request is subject to review for plain error, the
majority reasons, because the issue was neither raised
nor addressed in the trial court.
For there to be plain error, our Court has decided,
there must first be an error. Next, the error must be
clear and obvious. Finally, it must adversely affect the
defendant’s substantial rights. People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999). To warrant
reversal, the error must either result in the conviction
of an actually innocent defendant or it must affect the
fairness, integrity, or public reputation of the judicial
proceedings. Id. Again, the McCoy rule fits within the
confines of these principles.
The first two elements of the plain error test are
satisfied if a judge mistakenly fails to give the caution-
ary accomplice instruction. The error exists, and it is
clear and obvious. The next question is whether the
error adversely affected the defendant’s substantial
rights. To determine if an error affects substantial
rights, the appellate court makes the same inquiry as
when reviewing for harmless error, except that the
150 472 M
ICH
130 [Mar
C
ONCURRING
O
PINION BY
K
ELLY
,J.
defendant bears the burden of persuasion. United
States v Olano, 507 US 725, 734; 113 S Ct 1770; 123 L
Ed 2d 508 (1993).
The failure to give the cautionary accomplice instruc-
tion if it is appropriate undermines the reliability of any
jury verdict. Hence, the error cannot be considered
harmless. Krueger, supra at 54. This is especially true
when the case boils down to a closely drawn credibility
contest. Without basic protections, a criminal trial
cannot reliably serve as a vehicle for properly determin-
ing guilt. Arizona v Fulminante, 499 US 279, 310; 111 S
Ct 1246; 113 L Ed 2d 302 (1991). Because this failure to
instruct meets the harmless error standard, it also
meets the plain error standard. Olano, supra at 734.
Moreover, such closely drawn cases will likely always
meet the requirements for reversal. The omission of the
instruction would mean that the trial court failed to
meet the mark of the fair administration of justice.
McCoy, supra at 236. This failure would raise serious
questions regarding fairness, integrity, or the public
reputation of the proceedings. Carines, supra at 763.
Contrary to the majority’s conclusion, McCoy does
not contradict MCL 769.26
7
or MCR 2.516(C).
8
MCL
7
MCL 769.26 provides:
No judgment or verdict shall be set aside or reversed or a new
trial be granted by any court of this state in any criminal case, on
the ground of misdirection of the jury, or the improper admission
or rejection of evidence, or for error as to any matter of pleading or
procedure, unless in the opinion of the court, after an examination
of the entire cause, it shall affirmatively appear that the error
complained of has resulted in a miscarriage of justice.
8
MCR 2.516(C) provides:
Objections. A party may assign as error the giving of or the
failure to give an instruction only if the party objects on the record
2005] P
EOPLE V
Y
OUNG
151
C
ONCURRING
O
PINION BY
K
ELLY
,J.
769.26 and MCR 2.516(C) merely require that a defen-
dant preserve issues for review. Those issues not pre-
served are subject to review for plain error.
McCoy works within the framework of plain error
review. In overruling it, the majority abandons an
important protection.
CONCLUSION
McCoy does not apply to this case because no cred-
ibility contest existed and there was insufficient evi-
dence to justify characterizing Martin and Lawrence as
accomplices. Therefore, this case provides an inappro-
priate vehicle for the majority to attack McCoy. More-
over, McCoy represents a valid rule of law that fits well
within the established rules of appellate review. It
should not be struck down.
C
AVANAGH,
J., concurred with K
ELLY
,J.
before the jury retires to consider the verdict (or, in the case of
instructions given after deliberations have begun, before the jury
resumes deliberations), stating specifically the matter to which the
party objects and the grounds for the objection. Opportunity must
be given to make the objection out of the hearing of the jury.
152 472 M
ICH
130 [Mar
C
ONCURRING
O
PINION BY
K
ELLY
,J.
PEOPLE v WILEY
Docket No. 126221. Decided March 29, 2005. On application by the
defendant for leave to appeal, the Supreme Court, in lieu of
granting leave, affirmed the judgment of the trial court.
Namar Wiley pleaded guilty in the Wayne Circuit Court, James R.
Chylinski, J., to a charge of second-degree murder, six counts of
assault with intent to murder, and one count of possession of a
firearm during the commission of a felony. Pursuant to a plea
agreement, he agreed to and received a sentence in excess of the
statutory guidelines range. The Court of Appeals, O’C
ONNELL
,P.J.,
and O
WENS
and B
ORRELLO
, JJ., denied the defendant’s delayed
application for leave to appeal in an unpublished order, entered
April 9, 2004 (Docket No. 253533). The defendant sought leave to
appeal in the Supreme Court.
In a unanimous memorandum opinion, the Supreme Court
held:
A sentence that exceeds the sentencing guidelines satisfies the
requirements of MCL 769.34(3) where the record confirms that
the sentence was imposed as part of a valid plea agreement. The
statute does not require the specific articulation of additional
substantial and compelling reasons for the departure. Further-
more, a defendant waives appellate review of a sentence that
exceeds the guidelines where the defendant understandingly and
voluntarily enters into a plea agreement to accept that specific
sentence.
Affirmed.
1. S
ENTENCES —
P
LEA
A
GREEMENTS —
A
PPEAL —
S
ENTENCE
D
EPARTURES
.
A sentence that exceeds the sentencing guidelines satisfies the
requirements of MCL 769.34(3) where the record shows that the
sentence was imposed as part of a valid plea agreement; specific
articulation of additional substantial and compelling reasons for
the upward departure is not required.
2. S
ENTENCES —
P
LEA
A
GREEMENTS —
A
PPEAL
.
A defendant waives appellate review of a sentence that exceeds the
sentencing guidelines where the defendant has understandingly
2005] P
EOPLE V
W
ILEY
153
and voluntarily entered into a plea agreement to accept that
specific sentence.
Namar Wiley in propria persona.
MEMORANDUM OPINION
We hold that a sentence that exceeds the sentencing
guidelines satisfies the requirements of MCL 769.34(3)
when the record confirms that the sentence was im-
posed as part of a valid plea agreement. Under such
circumstances, the statute does not require the specific
articulation of additional “substantial and compelling”
reasons by the sentencing court. MCL 769.34(3); People
v Babcock, 469 Mich 247, 256-258; 666 NW2d 231
(2003).
Furthermore, a defendant waives appellate review of
a sentence that exceeds the guidelines by understand-
ingly and voluntarily entering into a plea agreement to
accept that specific sentence.
1
MCR 6.302. In that
respect, this case is similar to People v Cobbs, 443 Mich
276, 285; 505 NW2d 208 (1993), in which this Court
stated that a defendant who pleads guilty with knowl-
edge of the sentence will not be entitled to appellate
relief on the basis that the sentence is disproportionate.
See also People v Carter, 462 Mich 206, 215-216; 612
NW2d 144 (2000).
1
It is fully understandable under the circumstances of a plea agree-
ment why a defendant would waive appellate review of such a sentence,
because it is implicit in every plea agreement that the defendant has
derived some benefit from the agreement, otherwise it would not have
been entered into. However, there is no obligation upon the sentencing
court to identify the reasons underlying the defendant’s acceptance of the
plea agreement or to inventory the specific benefits that the defendant
might have derived. Nevertheless, the court should complete the Sen-
tencing Information Report and determine the appropriate guideline
range, so that it is clear that the agreed-upon sentence constitutes a
departure.
154 472 M
ICH
153 [Mar
M
EMORANDUM
O
PINION
We therefore affirm the judgment of the trial court.
In all other respects, defendant’s application for leave
to appeal is denied, because we are not persuaded that
this Court should review the other questions presented.
T
AYLOR
, C.J., and C
AVANAGH
,W
EAVER,
K
ELLY,
C
ORRIGAN,
Y
OUNG
, and M
ARKMAN
, JJ., concurred.
2005] P
EOPLE V
W
ILEY
155
M
EMORANDUM
O
PINION
PEOPLE v DAVIS
Docket No. 125436. Argued October 6, 2004 (Calendar No. 6). Decided
April 7, 2005.
Gevon R. Davis was charged in the Genesee Circuit Court with
unlawfully driving away a motor vehicle and with concealing
stolen property. The trial court, Robert M. Ransom, J., granted the
defendant’s motion to quash the information on the basis that the
Double Jeopardy Clause, Const 1963, art 1, § 15, and the decision
in People v Cooper, 398 Mich 450 (1976), prohibited the prosecu-
tion for the theft of the vehicle from Michigan after the defendant
had pleaded guilty in Kentucky, where he was apprehended, to a
charge of attempted theft of the vehicle by unlawful taking or
disposition of property. The Court of Appeals, C
OOPER
,P.J., and
M
ARKEY
and M
ETER
, JJ., affirmed in an unpublished opinion per
curiam, issued November 25, 2003 (Docket No. 242207). The
Supreme Court granted the prosecution’s application for leave to
appeal. 470 Mich 870 (2004).
In an opinion by Justice W
EAVER
, joined by Chief Justice
T
AYLOR
, and Justices C
ORRIGAN,
Y
OUNG
, and M
ARKMAN
, the Supreme
Court held:
The Double Jeopardy Clause does not bar the defendant’s
successive state prosecution in Michigan because the entities
seeking to prosecute the defendant—Kentucky and Michigan—are
separate sovereigns deriving their authority to punish from dis-
tinct sources of power. Cooper, which incorrectly perceived a
narrowing of the dual sovereignty doctrine and which held that the
Double Jeopardy Clause of the Michigan Constitution prohibits a
second prosecution for an offense arising out of the same criminal
act unless it appears from the record that the interests of the state
of Michigan and the jurisdiction that initially prosecuted are
substantially different, must be overruled. The balancing of inter-
ests approach adopted in Cooper has been explicitly rejected in
Heath v Alabama, 474 US 82 (1985). The decision of the Court of
Appeals must be reversed and the matter must be remanded to the
trial court for further proceedings.
Reversed and remanded.
Justice K
ELLY
, dissenting, would affirm the decision of the
Court of Appeals, stating that Cooper provides the correct frame-
156 472 M
ICH
156 [Apr
work for resolving double jeopardy concerns involving dual sover-
eigns and should not be overruled. When interpreting the Michi-
gan Double Jeopardy Clause, as we must in this case, the Michigan
Supreme Court is not bound by the United States Supreme Court’s
analysis of the federal Double Jeopardy Clause. The constitutional
history of Michigan reveals no intent by the people of this state
that the Michigan Double Jeopardy Clause should be interpreted
exactly as the federal provision is interpreted. Consistent with this
history, Cooper balances the rights of individuals with the state’s
interests in preserving the public peace and protecting the public
safety by allowing successive prosecutions only when the prosecu-
tion by another sovereign for the same criminal act does not
vindicate this state’s interests. Michigan’s interests in this case
have been adequately protected by the defendant’s Kentucky
conviction. A second prosecution in Michigan is incompatible with
fundamental justice and the requirements of due process.
Justice C
AVANAGH
, dissenting, concurred with the result
reached by Justice K
ELLY
in her dissenting opinion and fully
concurred with the reasoning articulated in parts IV and V of that
opinion.
C
ONSTITUTIONAL
L
AW —
D
OUBLE
J
EOPARDY —
S
INGLE
C
RIMINAL
A
CT —
D
UAL
S
TATE
P
ROSECUTIONS
.
The power of separate states to undertake criminal prosecutions of
a defendant for a single act that constitutes a transgression of the
law of each state derives from separate and independent sources of
power and authority; the dual sovereignty doctrine provides that
an act denounced as a crime by both states may be punished by
both states (US Const, Am V; Const 1963, art 1, § 15).
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, Arthur A. Busch, Prosecuting Attor-
ney, and Donald A. Kuebler, Chief, Research, Training,
and Appeals, for the people.
Neil C. Szabo for the defendant.
Amicus Curiae:
Charles Sherman, Kym L. Worthy, and Timothy A.
Baughman for the Prosecuting Attorneys Association of
Michigan.
2005] P
EOPLE V
D
AVIS
157
O
PINION OF THE
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OURT
W
EAVER,
J. The issue presented is whether our Double
Jeopardy Clause
1
prohibits the state of Michigan from
prosecuting defendant for the theft of an automobile
from Michigan after defendant pleaded guilty in Ken-
tucky, where he was apprehended, to a charge of at-
tempted theft of the automobile by unlawful taking. We
overrule People v Cooper
2
and hold that our Double
Jeopardy Clause does not bar defendant’s successive
state prosecution in Michigan because the entities seek-
ing to prosecute defendant in this case—Kentucky and
Michigan—are separate sovereigns deriving their au-
thority to punish from distinct sources of power. The
decision of the Court of Appeals affirming the trial
court’s order granting defendant’s motion to quash the
information is reversed and the case is remanded to the
trial court for proceedings consistent with this opinion.
FACTS
It is not disputed that defendant stole a 1999 Chev-
rolet Malibu, valued at $8,200, and drove the automo-
bile from Michigan to Kentucky, where he was appre-
hended.
On August 22, 2001, defendant was charged in Ken-
tucky with theft by unlawful taking or disposition of
property valued at $300 or more.
3
On September 4,
2001, defendant pleaded guilty to an amended charge of
attempted theft by unlawful taking or disposition of
property valued at $300 or more.
4
He was sentenced to
365 days in jail, to be suspended during two years’
probation.
1
Const 1963, art 1, § 15.
2
398 Mich 450; 247 NW2d 866 (1976).
3
Ky Rev Stat Ann 514.030.
4
Ky Rev Stat Ann 506.010 and 506.020 address criminal attempt.
158 472 M
ICH
156 [Apr
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PINION OF THE
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OURT
On March 22, 2002, defendant was charged in Gen-
esee County, Michigan, with unlawfully driving away a
motor vehicle and with receiving and concealing stolen
property.
5
Defendant moved to quash the information
on the basis of double jeopardy, asserting that the
double jeopardy provision of the Michigan Constitution
6
and the case People v Cooper prohibited a second
prosecution in Michigan for the theft of the automobile,
unless the interests of Michigan and Kentucky were
substantially different. The trial court granted defen-
dant’s motion on June 11, 2002, and dismissed the
charges, concluding that the case was controlled by
People v Cooper.
The prosecutor appealed, and the Court of Appeals
affirmed in an unpublished opinion per curiam.
7
The
Court of Appeals concluded that Cooper was still the
controlling law because only three justices from this
Court would have overruled Cooper in People v Mezy.
8
This Court granted the prosecutor’s application for
leave to appeal.
9
STANDARD OF REVIEW
Whether the information should have been quashed
on the basis of double jeopardy is a question of law that
this Court reviews de novo. People v Nutt, 469 Mich 565,
573; 677 NW2d 1 (2004). In interpreting a constitu-
tional provision, the primary rule of constitutional
interpretation has been described by Justice C
OOLEY
:
5
MCL 750.413 and 750.535(3)(a).
6
Const 1963, art 1, § 15.
7
People v Davis, unpublished opinion per curiam of the Court of
Appeals, issued November 25, 2003 (Docket No. 242207).
8
453 Mich 269; 551 NW2d 389 (1996).
9
470 Mich 870 (2004).
2005] P
EOPLE V
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AVIS
159
O
PINION OF THE
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OURT
“A constitution is made for the people and by the people.
The interpretation that should be given it is that which
reasonable minds, the great mass of the people themselves,
would give it. ‘For as the Constitution does not derive its
force from the convention which framed, but from the
people who ratified it, the intent to be arrived at is that of
the people, and it is not to be supposed that they have looked
for any dark or abstruse meaning in the words employed,
but rather that they have accepted them in the sense most
obvious to the common understanding, and ratified the
instrument in the belief that that was the sense designed to
be conveyed.’ ” [Traverse City School Dist v Attorney Gen-
eral, 384 Mich 390, 405; 185 NW2d 9 (1971) (quoting
Cooley’s Const Lim 81) (added emphasis omitted).]
ANALYSIS
At issue in the present case is whether our Double
Jeopardy Clause prohibits charging and trying defen-
dant in Michigan for the theft of an automobile from
Michigan after he pleaded guilty in Kentucky, where he
was apprehended, to attempted theft of the automobile.
Answering this question requires us to determine
whether this Court correctly construed our Double
Jeopardy Clause and correctly applied the doctrine of
dual sovereignty in People v Cooper.
10
Michigan’s Double Jeopardy Clause provides, “No
person shall be subject for the same offense to be twice
10
Justice K
ELLY
in dissent asserts that the majority answers the wrong
question when it decides whether this Court “correctly applied the
doctrine of dual sovereignty in People v Cooper.” “The appropriate
question,” she asserts, “is whether the Cooper decision correctly inter-
preted our state’s constitution.” Post at 175. The dissent is mistaken.
There is no difference between the “question” as phrased by the majority
and the “question” as phrased by the dissent; both are ways of stating the
issue in this case, which is whether Michigan’s Constitution prohibits
charging and trying defendant in Michigan for the theft of an automobile
from Michigan after he pleaded guilty in Kentucky, where he was
apprehended, of attempted theft of the automobile.
160 472 M
ICH
156 [Apr
O
PINION OF THE
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OURT
put in jeopardy.” Const 1963, art 1, § 15. The federal
provision is substantially similar, providing “nor shall
any person be subject for the same offence to be twice
put in jeopardy of life or limb....”USConst, Am V. In
Nutt, supra, we explained that the protections provided
by the Double Jeopardy Clause include: (1) protection
against a second prosecution for the same offense after
acquittal, (2) protection against a second prosecution
for the same offense after conviction, and (3) protection
against multiple punishments for the same offense.
Nutt, supra at 574.
In Nutt, we further concluded that
in adopting art 1, § 15, the people of this state intended
that our double jeopardy provision would be construed
consistently with Michigan precedent and the Fifth
Amendment. [Id. at 591.]
This conclusion was based, in part, on an examination
of the record of the constitutional convention in 1961.
Id. at 588-590. In 1835, Michigan’s Constitution, art 1,
§ 12, contained language similar to that of the federal
constitution: “No person, for the same offense, shall be
twice put in jeopardy of punishment.” Nutt, supra at
588. In 1850 and 1908, the language of this provision
was changed to “No person, after acquittal upon the
merits, shall be tried for the same offense.” Const 1850,
art 6, § 29; Const 1908, art 2, § 14; Nutt, supra at 588;
1 Official Record, Constitutional Convention 1961, p
465. At the 1961 constitutional convention, it was
proposed that the provision be revised to once again
mirror the language of the federal constitution. Nutt,
supra at 589; 1 Official Record, Constitutional Conven-
tion 1961, p 465. In discussing the proposed amend-
ment at the constitutional convention, it was noted by
Delegate Stevens that even when the language differed
from the federal provision in 1850 and 1908, this Court
2005] P
EOPLE V
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AVIS
161
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PINION OF THE
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OURT
had “ ‘virtually held that this means the same thing as
the provision in the federal constitution ....’”1Offi-
cial Record, Constitutional Convention 1961, p 539.
This historical context supports Nutt’s conclusion that
Michigan’s double jeopardy provision should be con-
strued consistently with the Fifth Amendment.
In Bartkus v Illinois,
11
the defendant was tried in
federal district court for the robbery of a federally
insured savings and loan association and was acquitted.
After his acquittal, a state grand jury indicted the
defendant on robbery charges from the same robbery.
The defendant was tried, convicted, and sentenced to
life imprisonment. On appeal, the defendant asserted
that his state conviction was barred by double jeopardy.
The United States Supreme Court disagreed, conclud-
ing that successive state and federal prosecutions based
on the same transaction or conduct were not barred by
the Double Jeopardy Clause. 359 US at 122-124.
12
The
Court reasoned:
It would be in derogation of our federal system to
displace the reserved power of States over state offenses by
reason of prosecution of minor federal offenses by federal
authorities beyond the control of the States. [Id. at 137.]
11
359 US 121; 79 S Ct 676;3LEd2d684(1959).
12
Justice K
ELLY
references the more than thirty years of case law on
which Bartkus was based but then asserts that the foundation for
Bartkus is “questionable” and that it was undermined by Benton v
Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969). Post at 171,
172. We disagree. As noted in Bartkus, the body of precedent on which it
relied provided “irrefutable evidence that state and federal courts have
for years refused to bar a second trial even though there had been a prior
trial by another government for a similar offense,” and concluded that “it
would be disregard of a long, unbroken, unquestioned course of impres-
sive adjudication for the Court now to rule that due process compels such
a bar.” Bartkus, supra at 136. Moreover, the Heath case discussed later in
this opinion makes it clear that the United States Supreme Court meant
what it said in Bartkus.
162 472 M
ICH
156 [Apr
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OURT
In People v Cooper, the defendant was acquitted in
federal court of attempting to rob a bank. He was then
tried in state court on charges stemming from the same
criminal act. 398 Mich at 453. In addressing the defen-
dant’s argument that his trial in state court was barred
by double jeopardy, this Court acknowledged the hold-
ing in Bartkus that successive prosecutions were not
barred by double jeopardy, but decided that a “trend in
United States Supreme Court decisions” suggested
“that the permissibility of Federal-state prosecutions as
a requirement of our Federal system [was] open to
reassessment.” Id. at 457. The Court opined that the
trend it perceived required increased scrutiny of the
dual sovereignty doctrine, and that double jeopardy
may bar successive prosecutions. Id. at 459-460.
13
The
Court explained:
The dual sovereignty notion is predicated on the belief
that state criminal justice systems should be strong. Addi-
tionally, there is the fear that Federal legislation which
covers a criminal act may involve interests unlike the
interests which state legislation covering the same criminal
act may seek to promote. We agree that where an individu-
al’s behavior violated state and Federal laws which are
framed to protect different social interests, prosecution by
one sovereign will not satisfy the needs of the other
13
The Cooper Court cited Elkins v United States, 364 US 206; 80 S Ct
1437; 4 L Ed 2d 1669 (1960), and Murphy v Waterfront Comm of New York
Harbor, 378 US 52; 84 S Ct 1594; 12 L Ed 2d 678 (1964), as cases that
undermined the Bartkus decision. But neither case specifically addressed
whether successive prosecutions were barred by double jeopardy. The
issue in Elkins was whether “articles obtained as the result of an
unreasonable search and seizure by state officers, without involvement of
federal officers, [may] be introduced in evidence against a defendant over
his timely objection in a federal criminal trial.” 364 US at 208. And the
issue presented in Murphy was “whether one jurisdiction within our
federal structure may compel a witness, whom it has immunized from
prosecution under its laws, to give testimony which might then be used
to convict him of a crime against another such jurisdiction.” 378 US at 53.
2005] P
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AVIS
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O
PINION OF THE
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OURT
sovereign. In such a case, given the Federal government’s
preemptive power, the inability of the state to vindicate its
interests would truly be an “untoward deprivation of the
historic right and obligation of the States to maintain peace
and order within their confines. It would be in derogation
of our federal system”. Bartkus, supra, at 137 (Frankfurter,
J.). Therefore, we cannot accept defendant’s proffered
alternative to the dual sovereignty doctrine which would
prohibit all successive prosecutions by two sovereigns for
the same act.
However, the interest of the Federal and state govern-
ments in prosecuting a criminal act frequently coincide.
When state and Federal interests do coincide, prosecution
by one sovereign will satisfy the need of the other. [Id.
(emphasis in original).]
Thus, the Cooper Court held “that Const 1963, art 1,
§ 15 prohibits a second prosecution for an offense
arising out of the same criminal act unless it appears
from the record that the interests of the State of
Michigan and the jurisdiction which initially prosecuted
are substantially different.” Id. at 461.
Justice K
ELLY
in dissent makes much of the Cooper
Court’s statement that its decision rested on Michigan’s
Constitution. Id. at 461. But simply stating this conclu-
sion does not make it so. A close examination of Cooper
reveals that it was not decided on the basis of different
language in our Constitution or on the basis of a
different history behind Michigan’s adoption of a
double jeopardy bar. Indeed, no analysis was made at all
regarding any of the text or history of art 1, § 15, and
apart from the conclusory statement at the end of the
Cooper opinion that the decision was based on Michi-
gan’s double jeopardy provision, there is nothing in the
opinion actually linking this statement to the actual
language or history of Michigan’s double jeopardy pro-
vision. Rather, the case was decided as it was because
the Cooper Court simply questioned Bartkus and mis-
164 472 M
ICH
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takenly perceived a “trend” in United States Supreme
Court law.
14
Thus, although the Cooper Court was
wrong in its understanding of federal law, it did look to
federal law in construing Michigan’s double jeopardy
provision, just as the majority does in this case.
Nine years after this Court’s decision in Cooper, the
United States Supreme Court decided Heath v Ala-
bama,
15
a case that demonstrates that the Cooper Court
was incorrect about any “trend” narrowing the dual
sovereignty doctrine or the ability of states to prosecute
successively. In Heath, the petitioner hired two men to
kill his wife. The petitioner met the men in Georgia,
just over the border from his Alabama home, and led
the men back to his home. The men kidnapped the
petitioner’s wife from the home; her body was later
found on the side of a road in Georgia. The petitioner
pleaded guilty in Georgia to a murder charge in ex-
change for a sentence of life imprisonment. He was then
indicted in Alabama for the capital offense of murder
during a kidnapping, convicted, and sentenced to death.
474 US at 83-86. The petitioner asserted that the
Alabama prosecution constituted double jeopardy. The
United States Supreme Court granted certiorari limited
to the double jeopardy issue and “requested the parties
to address the question of the applicability of the dual
sovereignty doctrine to successive prosecutions by two
States.” Id. at 87.
The Heath Court determined that the dual sover-
eignty doctrine permitted successive prosecutions un-
der the laws of different states. The Court explained:
14
Similarly, the dissent by Justice K
ELLY
is based on nothing more than
its disagreement with the Bartkus decision and its desire to substitute its
own double jeopardy policy for the double jeopardy analysis that the
language and history of Michigan’s double jeopardy provision requires.
15
474 US 82; 106 S Ct 433; 88 L Ed 2d 387 (1985).
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The dual sovereignty doctrine, as originally articulated
and consistently applied by this Court, compels the conclu-
sion that successive prosecutions by two States for the
same conduct are not barred by the Double Jeopardy
Clause.
The dual sovereignty doctrine is founded on the
common-law conception of crime as an offense against the
sovereignty of the government. When a defendant in a
single act violates the “peace and dignity” of two sovereigns
by breaking the laws of each, he has committed two distinct
“offences.” United States v. Lanza, 260 U.S. 377, 382
(1922). As the Court explained in Moore v. Illinois,14How.
13, 19 (1852), “[an] offense, in its legal signification, means
the transgression of a law.” Consequently, when the same
act transgresses the laws of two sovereigns, “it cannot be
truly averred that the offender has been twice punished for
the same offense; but only that by one act he has commit-
ted two offenses, for each of which he is justly punishable.”
Id., at 20.
In applying the dual sovereignty doctrine, then, the
crucial determination is whether the two entities that seek
successively to prosecute a defendant for the same course
of conduct can be termed separate sovereigns. This deter-
mination turns on whether the two entities draw their
authority to punish the offender from distinct sources of
power. See, e.g., United States v. Wheeler, 435 U.S. 313, 320
(1978); Waller v. Florida, 397 U.S. 387, 393 (1970); Puerto
Rico v. Shell Co., 302 U.S. 253, 264-265 (1937); Lanza,
supra, at 382; Grafton v. United States, 206 U.S. 333,
354-355 (1907). Thus, the Court has uniformly held that
the States are separate sovereigns with respect to the
Federal Government because each State’s power to pros-
ecute is derived from its own “inherent sovereignty,” not
from the Federal Government. Wheeler, supra, at 320, n.
14. See Abbate v. United States, 359 U.S. 187, 193-194
(1959) (collecting cases); Lanza, supra. As stated in Lanza,
supra, at 382:
“Each government in determining what shall be an
offense against its peace and dignity is exercising its own
sovereignty, not that of the other.
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“It follows that an act denounced as a crime by both
national and state sovereignties is an offense against the
peace and dignity of both and may be punished by each.”
See also Bartkus v. Illinois, 359 U.S. 121 (1959); Westfall v.
United States, 274 U.S. 256, 258 (1927) (Holmes, J.) (the
proposition that the State and Federal Governments may
punish the same conduct “is too plain to need more than
statement”).
The States are no less sovereign with respect to each
other than they are with respect to the Federal Govern-
ment. Their powers to undertake criminal prosecutions
derive from separate and independent sources of power and
authority originally belonging to them before admission to
the Union and preserved to them by the Tenth Amend-
ment. [Id. at 88-89.]
The Court further explained that in cases where it had
found the dual sovereignty doctrine inapplicable, it had
done so “because the two prosecuting entities did not
derive their powers to prosecute from independent
sources of authority.” Id. at 90. The Court explicitly
rejected the balancing of interests approach adopted by
this Court in Cooper. Id. at 92-93.
The correctness of the Cooper decision, particularly
in light of the United States Supreme Court’s decision
in Heath, has already been questioned. In People v
Mezy,
16
three justices
17
stated that they would overrule
Cooper and hold that the double jeopardy provisions of
the Michigan Constitution and the United States Con-
stitution did not bar successive state and federal pros-
ecutions. 453 Mich at 272. The justices noted that the
United States Supreme Court had consistently held
that successive state and federal prosecutions did not
violate double jeopardy. Id. at 278-280. Further, the
16
453 Mich 269; 551 NW2d 389 (1996).
17
The opinion was written by Justice W
EAVER
and signed by Justices
B
OYLE
and R
ILEY
.
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justices noted that there was no “ ‘compelling’ ” reason
to afford greater protection under the Michigan double
jeopardy provision than the federal and that the two
provisions should be treated as “ ‘affording the same
protections.’ ” Id. at 280-281, quoting People v Perlos,
436 Mich 305, 313 n 7; 462 NW2d 310 (1990).
18
Consistent with the United States Supreme Court
decision in Heath and with the reasoning of three
justices of this Court in Mezy, we now overrule People v
Cooper.
19
As noted in Nutt, the common understanding
of the people at the time that our double jeopardy
provision was ratified was that the provision would be
construed consistently with the federal double jeopardy
jurisprudence that then existed. Applying the reasoning
of Bartkus, which was clearly reaffirmed in Heath, the
entities seeking to prosecute in this case—Kentucky
and Michigan—are separate sovereigns deriving their
authority to punish from distinct sources of power.
18
The justices also noted that, contrary to the Cooper Court’s decision,
the majority of states hold that both the United States Constitution and
their constitutions allow for dual prosecutions by the state and federal
governments. 453 Mich at 281 n 14.
19
As recently noted, although we overrule precedent with caution, the
doctrine of stare decisis is not applied mechanically to prevent the Court
from overruling previous decisions that are erroneous. We may overrule
a prior decision when we are certain that it was wrongly decided and
“ ‘less injury will result from overruling than from following it.’ ” People
v Moore, 470 Mich 56, 69 n 17; 679 NW2d 41 (2004), quoting McEvoy v
Sault Ste Marie, 136 Mich 172, 178; 98 NW 1006 (1904). The United
States Supreme Court decision in Heath clearly demonstrates that the
Cooper Court was wrong about any “trend” that it thought it observed in
United States Supreme Court case law concerning dual sovereignty and
double jeopardy. Further, the Cooper Court failed to consider the lan-
guage of our double jeopardy provision or its historical context. Addition-
ally, there are no relevant “reliance” interests involved and therefore
overruling Cooper would not produce any “practical real-world disloca-
tions.” See Robinson v Detroit, 462 Mich 439, 466; 613 NW2d 307 (2000).
Therefore, we overrule the erroneous decision made by the Cooper Court.
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Therefore, the prosecution of defendant in Michigan for
the theft of the automobile is not barred by double
jeopardy.
20
The decision of the Court of Appeals affirming the
trial court’s order granting defendant’s motion to
quash is reversed and the case is remanded to the trial
court for proceedings consistent with this opinion.
T
AYLOR,
C.J .
,
and C
ORRIGAN
,Y
OUNG,
and M
ARKMAN
,JJ.,
concurred with W
EAVER
,J.
K
ELLY,
J. (dissenting). This Court has granted the
prosecutor’s request to further weaken the Double Jeop-
ardy Clause of the Michigan Constitution. The majority
agrees with the prosecutor that the state’s Double Jeop-
ardy Clause does not bar this Michigan prosecution,
despite the fact that K entucky has already convicted
defendant of the same crime.
I dissent. Our decision in People v Cooper
1
provides
the appropriate protection against double jeopardy to
Michigan citizens and to others within the state’s
jurisdiction. The majority decision presents yet another
20
Justice K
ELLY
in dissent asserts that by looking to federal law to guide
the interpretation of our double jeopardy provision, we are somehow giving
away the people’s sovereignty. Post at 182. We disagree. Rather, it is the
dissent’s interpretation that would cede this state’s sovereignty to another
state by foreclosing prosecution in Michigan, when there is no evidence in
our constitutional history that the people of Michigan sought, in adopting
Const 1963, art 1, § 15, to cede any of this state’s sovereignty to the federal
government or another state. Any abrogation based on double jeopardy
principles of Michigan’s sovereign power to prosecute offenders is a
decision properly left to the people by amending the Constitution, and not
to this Court. Further, we note that the Michigan Legislature has statu-
torily forbidden successive prosecutions only with regard to prosecutions
concerning illegal drugs. MCL 333.7409 provides: “If a violation of this
article is a violation of a federal law or the law of another state, a conviction
or acquittal under federal law or the law of another state for the same act
is a bar to prosecution in this state.”
1
398 Mich 450; 247 NW2d 866 (1976).
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instance in which this Court’s majority disagrees with
existing precedent, gives it short shrift, and changes
Michigan law. I strongly disagree with the majority’s
choice to overrule Cooper.
This case does not present one of those rare occasions
that requires reversing a previous decision of the Court.
I would affirm the ruling of the Court of Appeals and, in
doing so, I would follow this Court’s precedent in Cooper.
I. FACTS AND STATUS OF THE CASE
Defendant allegedly stole an acquaintance’s car or
acquired it after someone else stole it in Michigan. He
then drove the car to Kentucky, where he was arrested.
By agreement with the Kentucky prosecutor, defendant
pleaded guilty of attempted theft by unlawful taking or
disposition of property valued at $300 or more. Ky Rev
Stat Ann 514.030.
Later, defendant was charged in Michigan for the
same car theft. The prosecutor accused him of unlawfully
driving away a motor vehicle (UDAA), MCL 751.413, and
receiving and concealing stolen property with a value of
$1,000 or more but less than $20,000. MCL
750.535(3)(a). On defendant’s motion, the trial court
quashed the information and dismissed the charges on
the basis that they violated the Double Jeopardy Clause
of the Michigan Constitution. Const 1963, art 1, § 15.
The Court of Appeals affirmed the decision. People v
Davis, unpublished opinion per curiam of the Court of
Appeals, issued November 25, 2003 (Docket No. 242207).
II. FEDERAL DOUBLE JEOPARDY JURISPRUDENCE
The United States Supreme Court determined in
Bartkus v Illinois
2
that the Fifth Amendment’s Double
2
359 US 121; 79 S Ct 676;3LEd2d684(1959).
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Jeopardy Clause
3
allows successive prosecutions by the
federal and state governments.
But Bartkus rests on a questionable foundation. The
opinion is premised on a concept of dual sovereignty
that the United States Supreme Court began to recog-
nize in dicta starting in the mid-nineteenth century.
4
The doctrine was not applied at common law. It was
first utilized by the Court in 1922, in United States v
Lanza, 260 US 377; 43 S Ct 141; 67 L Ed 314 (1922).
In 1937, the United States Supreme Court held that
the Fourteenth Amendment did not incorporate the
Fifth Amendment’s Double Jeopardy Clause against
the states. Palko v Connecticut, 302 US 319; 58 S Ct
149; 82 L Ed 288 (1937), overruled by Benton v
Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707
(1969). In several earlier cases, the Court had allowed
multiple state and federal prosecutions for the same
offense. It had permitted the federal government to
prosecute an offense for which a state court had
already obtained a conviction. Lanza, supra at 382.
Later, it had allowed states and the federal govern-
ment to criminalize the same conduct. Westfall v
United States, 274 US 256, 258; 47 S Ct 629; 71 L Ed
1036 (1927).
3
The relevant portion of the federal Double Jeopardy Clause reads,
“nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb....”USConst, Am V.
4
See Fox v Ohio, 46 US 410; 12 L Ed 213 (1847) (a state may prosecute
for passing false coin; the federal government may prosecute for coun-
terfeiting; the former is a private wrong, while the latter is an offense
directly against the federal government); United States v Marigold,50
US 560; 13 L Ed 257 (1850) (federal statute and federal prosecution for
uttering false coinage was constitutionally permissible); Moore v Illinois,
55 US 13; 14 L Ed 306 (1852) (Illinois law and federal fugitive slave law
dissimilar in essential purpose, definition of the offenses, and type of
punishment each statute authorized).
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Then, in 1959, the United States Supreme Court in
Bartkus allowed a state prosecution to proceed after the
defendant had been acquitted of the charged offense in
a federal court. It found that the federal Double Jeop-
ardy Clause did not prohibit state prosecutions for state
criminal offenses.
The reasoning of these cases was based on the
argument that the Fifth Amendment’s Double Jeop-
ardy Clause was inapplicable to the states. Indeed, this
was explicitly noted in Bartkus, in which Justice Frank-
furter stated his view that the Fourteenth Amendment
did not apply the first eight amendments to the states.
Bartkus, supra at 124.
In 1969, the Supreme Court rejected the idea that the
Fifth Amendment did not apply to the states through
the Fourteenth Amendment. In Benton v Maryland,
5
the Court held that the Fifth Amendment protection is
“a fundamental ideal in our constitutional heritage, and
that it should apply to the States through the Four-
teenth Amendment.” Benton, supra at 794. Because
Bartkus was based on the belief that the Fifth Amend-
ment had no application to the states, Benton under-
mined the reasoning of Bartkus.
6
See Smith v United
States, 423 US 1303, 1307; 96 S Ct 2; 46 L Ed 2d 9
(1975) (Douglas, Circuit Justice).
5
395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969).
6
At least one commentator has recognized the paradox created by the
dual sovereignty doctrine:
The doctrine of selective incorporation, which makes the
Double Jeopardy Clause applicable to the states,...dependsupon
the rationale that by enacting the Fourteenth Amendment the
states surrendered a part of their sovereignty to the federal
government. Yet, the dual sovereignty doctrine maintains that
both the states and the federal government, bound by the same
Double Jeopardy Clause because of their shared sovereignty, are
separate sovereigns for purposes of assessing possible violations of
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The weak underpinnings of the Bartkus line of cases
is highlighted when one considers the common law on
which our system of constitutional jurisprudence is
based. As Justice Black noted in his vigorous Bartkus
dissent, and as legal scholars continue to note,
7
the
English common law did not recognize the concept of
dual sovereignty.
Justice Black pointed out that protection from double
jeopardy is part of the common law of nations. Bartkus,
supra at 154 (Black, J., dissenting), citing Batchelder,
Former Jeopardy, 17 Am L R 735 (1883). In fact,
international law recognizes that multiple prosecutions
by separate nations violate fundamental human rights.
8
Post-Bartkus cases also raised questions regarding
whether the dual sovereignty doctrine on which Bart-
kus was based would survive unscathed. For instance,
in Elkins v United States,
9
the Court rejected the dual
the Clause. See, e.g., Heath, 474 U.S. [82; 106 S Ct 433; 88 L Ed 2d
387 (1985)]. [McAninch, Unfolding the law of double jeopardy,44
SC L R 411, 425 n 104 (1993).]
7
See, for example, Comment, The dual sovereignty exception to double
jeopardy: An unnecessary loophole, 24 U Balt L R 177, 180 (1994), citing
Comment, Successive prosecution by state and federal governments for
offenses arising out of the same act, 44 Minn L R 534, 537 n 18 (1960);
Harrison, Federalism and double jeopardy: A study in the frustration of
human rights, 17 U Miami L R 306 (1963); Grant, Successive prosecu-
tions by state and nation: Common law and british empire comparisons,
4UCLALR1(1956).
8
See, e.g., International Covenant on Civil and Political Rights, art
14(7), 999 UNTS 171, 177 (1976). A nation may not extradite a person if
doing so would expose that person to subsequent prosecution for the
same crime. 1 Restatement Foreign R elations Law of the United States,
3d, § 476(1)(b), p 566. The protection from double jeopardy has been a
part of our western civilization since at least Greek and Roman times and
is a “ ‘universal maxim of common law.’ ” Bartkus, supra at 151-153
(Black, J., dissenting), quoting 2 Cooley, Blackstone’s Commentaries (4th
ed, 1899), p 1481.
9
364 US 206; 80 S Ct 1437;4LEd2d1669 (1960).
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sovereignty doctrine in the context of search and sei-
zure. There, the Court held that where state authorities
obtained evidence during a search that would have
violated the Fourth Amendment, the evidence must be
excluded at the federal level.
Likewise, in Murphy v Waterfront Comm of New York
Harbor,
10
the Court refused to apply the dual sover-
eignty doctrine. It held that a state may not constitu-
tionally compel a witness to testify when that testimony
might be used against him in a federal prosecution.
These decisions rejecting the application of the dual
sovereignty doctrine in other contexts, coupled with the
Benton decision, prompted comment by many courts,
including the Cooper Court. The question was whether
the dual sovereignty doctrine would continue to be
applied in the double jeopardy context.
More recently, though, the United States Supreme
Court has held that successive prosecutions by indi-
vidual states do not violate the Fifth Amendment’s
double jeopardy protection. Heath v Alabama, 474 US
82; 106 S Ct 433; 88 L Ed 2d 387 (1985). In Heath, the
Supreme Court not only resurrected the dual sover-
eignty doctrine, it extended the doctrine to successive
prosecutions by different states. No matter how flawed
the reasoning of Bartkus, then, the Supreme Court has
validated it. It has verified that, under current federal
law, the dual sovereignty doctrine allows for successive
prosecutions when they are initiated by different sov-
ereigns.
This Court clearly does not have the power to over-
rule United States Supreme Court precedent in inter-
preting the Double Jeopardy Clause of the United
States Constitution. On the other hand, we are not
10
378 US 52; 84 S Ct 1594; 12 L Ed 2d 678 (1964).
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ELLY
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bound to adopt that Court’s analysis of the federal
constitution when we interpret the Michigan Constitu-
tion. This is especially true when the analysis is flawed.
While the Court’s decision regarding a similar consti-
tutional provision provides guidance, the rights of
Michiganians are not tied to what the Court chose to do
with a federal constitutional provision.
Although the Michigan Supreme Court commented
in Cooper on the direction it thought the United States
Supreme Court was headed, it grounded its decision on
an interpretation of the Michigan Constitution. This
was fitting. When determining the rights guaranteed to
people in Michigan under the Michigan Constitution,
our Court is not bound by later interpretations given
the federal constitution by federal courts.
III. THE MICHIGAN CONSTITUTION
This case is not about the federal constitution’s Fifth
Amendment double jeopardy protection. It is about the
double jeopardy protection provided by the Michigan
Constitution to those within the jurisdiction of this
state. The majority claims that it must determine
whether we “correctly applied the doctrine of dual
sovereignty in People v Cooper.” Ante at 160. The
appropriate question is whether the Cooper decision
correctly interpreted our state’s constitution. I assert
that it did.
The Cooper Court rejected the United States Su-
preme Court’s one-sided view of dual sovereignty. The
current majority suggests that the Cooper Court incor-
rectly applied dual sovereignty, whereas the Cooper
Court specifically rejected it. Instead, it appropriately
adopted a rule that balances the rights of the state with
the fundamental rights afforded to the accused.
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As Justice Denise Johnson of the Vermont Supreme
Court observed, “[W]e do not need a unique state source
to justify our differences with the interpretation of the
federal Constitution. The concept of sovereignty gives
state courts the right and the justification to disagree.”
Woltson, ed, Protecting Individual Rights: The Role of
State Constitutionalism, Report of the 1992 State
Judges Forum (1993), p 43, quoted in Shepard, The
maturing nature of state constitution jurisprudence,30
ValULRev421, 439 (1996).
[O]ur courts are not obligated to accept what we deem to
be a major contraction of citizen protections under our
constitution simply because the United States Supreme
Court has chosen to do so. We are obligated to interpret our
own organic instrument of government. [Sitz v Dep’t of
State Police, 443 Mich 744, 763; 506 NW2d 209 (1993).]
In interpreting the Michigan Constitution, “ ‘the
provisions for the protection of life, liberty and property
are to be largely and liberally construed in favor of the
citizen.’ ” Lockwood v Comm’r of Revenue, 357 Mich
517, 557; 98 NW2d 753 (1959), quoting United States ex
rel Flannery v Commanding Gen, Second Service Com-
mand, 69 F Supp 661, 665 (SD NY, 1946).
The Double Jeopardy Clause in the Michigan Consti-
tution currently reads, “No person shall be subject for
the same offense to be twice put in jeopardy.” Const
1963, art 1, § 15. To determine the parameters of this
guarantee, we must examine the history of our state’s
constitutional and common-law heritage.
Before reaching statehood, Michigan accepted the
common law of England as part of its legal heritage.
The common law was applied when Michigan was part
of the province of Upper Canada in 1792. At that time,
the legislature of Upper Canada repealed Canadian Law
and declared that “resort should be had to the laws of
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ELLY
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England as the rule for the decision of [real property
and civil rights].” 1 Michigan Territorial Laws, Intro-
duction, p viii (1871). Likewise, the Northwest Ordi-
nance contained a provision indicating that the territo-
ries should apply the common law. Northwest
Ordinance of 1787, art II.
11
When the territory that would become Michigan
shifted possession from England to the new United
States of America, the common law remained. “It is a
principle of universal jurisprudence that the laws,
whether in writing or evidenced by the usage and
customs of a conquered or ceded country, continue in
force till altered by the new sovereign.... All that
occurred here was the mere change of the sovereign
power, which left all rights and laws as they had been.”
1 Michigan Territorial Laws, Introduction, pp x-xi
(1871). Furthermore, in 1795 the Governor and judges
of the territory adopted an act declaring that the
common law of England was the applicable law. Id. at
xi-xii.
The common law of England held that protection
from double jeopardy extended to prosecutions by other
sovereigns. The practice in Great Britain in the seven-
teenth and eighteenth centuries was that prosecution
by a different sovereign precluded England from retry-
ing a defendant. See State v Hogg, 118 NH 262, 265-
266; 385 A2d 844 (1978).
Michigan adopted its first constitution in 1835. At
that time, its double jeopardy provision read, “No
person for the same offense, shall be twice put in
jeopardy of punishment.” Const 1835, art 1, § 12. In
1850, the state constitution was expanded and re-
worded to read, “No person after acquittal upon the
11
The 1783 Treaty of Paris finalized the boundaries between Canada
and the United States.
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merits shall be tried for the same offense.” Const 1850,
art 6, § 29. Constitutional convention notes from 1850
suggest that the proponent of this change considered it
to be simply a clarification of the provision’s language.
12
After the 1850 Constitution was ratified, the Michi-
gan Supreme Court had occasion to interpret this new
language. It determined that the phrase “after acquittal
on the merits” did not mean that jeopardy attached only
after a verdict was rendered. Writing for the Court,
Justice C
OOLEY
stated:
The present Constitution of this State was adopted in
1850, when all the tendencies of the day were in the
direction of enlarging individual rights, giving new privi-
leges, and imposing new restrictions upon the powers of
government in all its departments. This is a fact of common
notoriety in this State; and the tendencies referred to
found expression in many of the provisions of the Consti-
tution. Many common-law rights were enlarged, and given
the benefit of constitutional inviolability; and if any were
taken away, or restricted in giving new privileges, it was
only incidentally done in making the general system more
liberal, and, as the people believed, more just. Such a thing
as narrowing the privileges of accused parties, as they
existed at the common law, was not thought of; but, on the
contrary, pains were taken to see that they were all
enumerated and made secure. Some were added; and
among other provisions adopted for that purpose was the
one now under consideration. [People v Harding,53Mich
481, 485-486; 19 NW 155 (1884).]
The Harding Court, therefore, determined that the
language used in the 1850 Constitution was meant to
expand the rights our state’s citizens had at common
12
“Mr. C. [Delegate Crary] said he considered the language used in
the section indefinite, and his amendment merely proposed language
more definite and better understood.” Report of the Proceedings and
Debates in the Convention to R evise the Constitution of the State of
Michigan, p 58 (1850).
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law. At common law, a person could be retried after an
acquittal on the merits if the first court lacked jurisdic-
tion. The language of the 1850 Constitution was in-
tended to preclude this “great hardship.” Id. at 486. “It
was meant to give a privilege not existing at the
common law; it had no purpose to take away any which
before existed.” Id.
A constitutional convention was next called in 1908,
but that convention left the language of the double
jeopardy provision untouched. During the 1961 consti-
tutional convention, the double jeopardy provision
again received attention. The convention notes suggest
that the delegates were concerned only with the issue of
when jeopardy attached. The actual language of the
state constitution’s double jeopardy provision indicated
that the protection did not attach until a verdict of
acquittal had been rendered. Yet, in Harding, the
Michigan Supreme Court had determined that jeopardy
attached long before the rendering of a verdict.
The delegates’ discussion revolved solely around con-
forming the language regarding when jeopardy at-
tached to the interpretation the Michigan courts had
given it:
Mr. Stevens: Mr. Chairman and delegates, the original
wording of this was: “No person, after acquittal upon the
merits, shall be tried for the same offense.” The Supreme
Court of Michigan, however, has virtually held that this
means the same thing as the provision in the federal
constitution,
[13]
which is what we have put in: “No person
shall be subject for the same offense to be put twice in
jeopardy.”
13
Interestingly, while this characterized the Michigan provision as
meaning “virtually... the same thing as the provision in the federal
constitution” with regard to when jeopardy attached, the Harding Court
made no reference to the federal constitution. Its holding was grounded
in our state’s unique constitutional history.
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It is true that in the opinion of some of the jurists of the
state this might make it a little bit easier for the state to
appeal in some cases. Otherwise it makes no difference
except it brings the provision of the constitution more
clearly into the practice of this state. [1 Official Record,
Constitutional Convention 1961, p 539.]
And later, Delegate Stevens noted:
You would think from reading this, probably—and that
is a matter of clarification—a layman might think that only
after a person has been acquitted on the merits has he been
put in jeopardy. That is not the fact under the decisions of
the Michigan supreme court. He is better protected than
that. There is nothing in here that I believe can be
construed to in any way delete or reduce the rights of the
defendant. [1 Official Record, Constitutional Convention
1961, p 540.]
Reference was made to the similarity between the
proposed provision and the language of the United
States Constitution, the delegates noting that “[t]he
wording which we propose is that which is found in the
vast majority of state constitutions.” 1 Official Record,
Constitutional Convention 1961, p 540 (Delegate Dan-
hof). However, nothing suggests that they meant by the
similarity in wording that all aspects of the Double
Jeopardy Clause would be construed the same as other
sovereigns’ clauses, either then or afterward.
The only discussion at the convention centered on
conforming the language of Michigan’s Double Jeop-
ardy Clause to the interpretation Michigan courts had
given to that language. Silence regarding other aspects
of the protection should not be construed to mean that
the delegates considered federal case law the definitive
authority regarding the meaning of our state provision.
Rather, this silence should be taken to mean what it
more likely signifies: a lack of consideration of any of
180 472 M
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the aspects of double jeopardy protection beyond the
question of when jeopardy attaches.
This specific concern was carried through to the
people when they voted on the new constitution. The
Address to the People contains the following language:
This is a revision of Sec. 14, Article II, of the present
constitution. The new language of the first sentence in-
volves the substitution of the double jeopardy provision
from the U.S. Constitution in place of the present provision
which merely prohibits “acquittal on the merits.” This is
more consistent with the actual practice of the courts in
Michigan. [Emphasis added.]
In addition, the preface to the Address to the People
states, “Traditional liberties and rights of the people
were carefully reviewed and changes made are in the
direction of clarifying and strengthening them.” (Em-
phasis added.)
Given the full history of our constitution, and the
history of the 1961 constitutional convention, several
things are clear. First, the sole concern in revising the
Double Jeopardy Clause in our state constitution was to
clarify that jeopardy attaches when a jury is sworn, as
our courts had interpreted. It does not attach when a
verdict is issued, as appeared from the language of the
1908 Constitution. Second, the language regarding the
United States Constitution in the Address to the People
simply informs us from where that language was de-
rived.
The change in the Double Jeopardy Clause in the
1963 Constitution did not signal the people’s intent to
adopt the United States Supreme Court’s interpreta-
tion of all aspects of double jeopardy protection, past
and future. Instead, the people intended to ratify what
the Michigan courts had already held with regard to
when jeopardy attaches.
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Despite the history outlined above, the majority in
People v Nutt
14
took this language to mean that the
people intended to adopt the federal interpretation of
the Double Jeopardy Clause. It assumed that the people
knew what the United States Supreme Court had
interpreted the federal Double Jeopardy Clause to
mean, and that they agreed with it. It assumed that
they were willing to accept all future interpretations
that the federal courts applied to it. It assumed that
they willingly gave away their sovereignty as a people
and as a state by allowing the federal government to
interpret our constitution for us.
I cannot agree with all those assumptions. I do not
presume that the voters of our state intended that
Michigan’s Double Jeopardy Clause would be inter-
preted exactly as the federal provision is interpreted.
I have reviewed our common-law history before we
became a state, our state’s constitutional history, and
the language in the Address to the People. It has
become obvious to me that the people intended that the
language of the state Double Jeopardy Clause was
intended to mean what Michigan courts had said it
means. See Harding, supra.
The holding in Cooper was grounded on the Michigan
Constitution. This was specifically recognized in People
v Gay,
15
in which the Cooper decision was reaffirmed
and given retroactive effect. As Justice L
EVIN
noted,
Cooper was a “reasoned and careful” analysis of the
state constitution. People v Mezy, 453 Mich 269, 299;
551 NW2d 389 (1996) (L
EVIN
, J, dissenting).
Cooper protects the rights of Michigan’s citizens.
Unlike federal jurisprudence, it requires that the gov-
14
469 Mich 565; 677 NW2d 1 (2004).
15
407 Mich 681, 710-711; 289 NW2d 651 (1980).
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ernment balance those individual rights with the state’s
interest in preserving the public peace and protecting
the public safety. Cooper held that Michigan’s rights as
a sovereign were generally vindicated when a defendant
was brought to justice in another jurisdiction. But, it
also recognized that there would be times when another
sovereign’s prosecution would not validate Michigan’s
interests. In those rare cases, Cooper allowed a succes-
sive prosecution:
Const 1963, art 1, § 15 prohibits a second prosecution
for an offense arising out of the same criminal act unless it
appears from the record that the interests of the State of
Michigan and the jurisdiction which initially prosecuted
are substantially different. Analysis on a case-by-case basis
cannot be avoided. [Cooper, supra at 461.]
The balancing test of Cooper protects a person’s
rights “to avoid (1) continued embarrassment, expense
and ordeal; (2) being compelled to live in a continuing
state of anxiety and insecurity; and (3) the possibility
that even though innocent he may be found guilty
through repeated prosecutions.” Cooper, supra at 460,
citing United States v Wilson, 420 US 332, 343; 95 S Ct
1013; 43 L Ed 2d 232 (1975), and Green v United States,
355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957).
The facts that a court should consider in applying the
Cooper balancing test include
whether the maximum penalties of the statutes involved
are greatly disparate, whether some reason exists why one
jurisdiction cannot be entrusted to vindicate fully another
jurisdiction’s interests in securing a conviction, and
whether the differences in the statutes are merely jurisdic-
tional or are more substantive. [Cooper, supra at 461.]
The Cooper Court’s rejection of the dual sovereignty
doctrine as a basis for allowing successive prosecutions,
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without reference to the defendant’s fundamental in-
terest in being free from double jeopardy, was unani-
mous.
16
The majority uses Heath to attack the holding in
Cooper. But Cooper does not rest on the decisions of
the United States Supreme Court interpreting the
federal constitution. It rests on the Michigan Consti-
tution. It depends on balancing the interest of the
state in curbing criminal activity with the liberty
interests of those within its jurisdiction. Gay, supra at
693-694.
As discussed, this is perfectly consistent with the
intent of the 1961 constitutional convention delegates
and with the intent of the people. Given the rejection
of the Bartkus one-sided approach to dual sovereignty,
later cases such as Heath that apply the same one-
sided approach have no bearing on whether Cooper
was correctly decided. The Cooper rule is necessary to
protect the individual’s interest, as well as the state’s
interest in rare cases where the state’s interest is not
vindicated by another sovereign’s prosecution.
The defendant here is being forced to undergo
multiple ordeals when he should be able to rely on the
finality of his prosecution in Kentucky. He had an
expectation that his guilty plea in Kentucky would end
governmental action against him involving the car
theft. Instead, the Kentucky guilty plea can now be
used against him in the Michigan proceeding. Defen-
dant will again be punished for the same activity for
which he has already been punished in Kentucky.
16
Justice C
OLEMAN
concurred in the result, but believed that Michigan
should apply the “same-elements” test for determining when successive
prosecutions are brought for the same offense. Cooper, supra at 463
(C
OLEMAN
, J., concurring). In Gay, the Court unanimously agreed that
the Cooper decision was entitled to retroactive application.
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Cooper specifically directs a case-by-case inquiry of
whether the state’s interests have been met. Cooper,
supra at 461. It allows successive prosecutions when the
interests of the two states are substantially different.
The court considers the maximum penalties available,
facts indicating that the other jurisdiction cannot be
trusted to vindicate fully Michigan’s interests, and
whether the statutory differences are substantive or
“merely jurisdictional.” Id.
There is no evidence in the record before us that
Michigan’s interests have not been adequately pro-
tected by the proceedings in Kentucky. Defendant
pleaded guilty in Kentucky to attempted theft of prop-
erty having a value of more than $300. He was sen-
tenced to one year’s probation.
Defendant is charged in Michigan with UDAA and
receiving stolen property worth $1,000 or more. These
crimes are felonies punishable by not more than five
years’ imprisonment. Similarly, the Kentucky statute
makes theft of property with a value of more than $300
a felony punishable by not more than five years’ impris-
onment. See Ky Rev Stat Ann 514.030 and
532.020(1)(a).
To conserve trial resources, Michigan prosecutors
frequently offer a “plea bargain” to a defendant to plead
guilty to a lesser offense. The Kentucky prosecutor’s
willingness to offer defendant a plea to a lesser offense
cannot be said to undermine our state’s interests.
Furthermore, the Michigan prosecutor in this case does
not argue that Michigan’s interests were compromised.
The facts of this case serve to show that Cooper is
not, in fact, unworkable. The interests sought to be
protected by each state’s law are not substantially
different. The interests of the state of Michigan are
amply protected, while the interests of the individual
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are not ignored. The Double Jeopardy Clause was
written not to protect the state or federal government,
but to protect the individual.
To hold that Michigan will allow prosecution in our
state after a federal or sister state prosecution for the
identical act is to embrace a system of constitutional
duality. It enables a state to pursue a person who either
has been found innocent or has paid the price for his
crime to another sovereignty. To harass the innocent,
the acquitted, or the guilty person who has paid the
price for a crime in money or freedom is not compatible
with constitutionally legitimate state action. To the
contrary, it is at just such harassment that our state
constitution takes aim.
The policy that weakens double jeopardy protections
is not validated because both state and federal sover-
eignties combine to embrace it. It is incongruous to
allow a state’s basic constitutional policy, one integral to
its sovereignty, to be frustrated as a consequence of the
duality that allows that state to exist. Furthermore, it is
inconsistent and ironic to use that federalism, which
has been justified in the name of protecting freedom, to
obliterate a fundamental right.
Rarely are Michigan’s interests not vindicated after
one fair test of guilt. Normally, the cause of justice is not
served in the second pursuit of one who has been
subjected to jeopardy for the same act in a different
jurisdiction. To hold otherwise is to require an accused
either to prove innocence twice or to pay twice for the
same offense. The sole rationale for it is that the acts
complained of took place where two layers of govern-
ment coincide.
For almost thirty years, Cooper and its progeny have
protected citizens and others subject to the jurisdiction
of this state from the risk of
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(1) continued embarrassment, expense and ordeal; (2)
being compelled to live in a continuing state of anxiety and
insecurity; and (3) the possibility that even though inno-
cent [we] may be found guilty through repeated prosecu-
tions. [Gay, supra at 694, citing Wilson, supra at 343, and
Green, supra at 187-188.]
See also People v Herron, 464 Mich 593, 601; 628 NW2d
528 (2001). Cooper correctly held that Michigan’s
Double Jeopardy Clause protects us from multiple pros-
ecutions for the same crime. That protection exists as
long as the state’s interest is protected by a prosecution
for the crime in another state or by the federal govern-
ment. The Court in Cooper did not need to find a
“different history behind Michigan’s adoption of a
double jeopardy bar”
17
to conclude that the Michigan
Constitution protects us from multiple prosecutions for
a single crime. As explained, that protection has been a
bedrock principle of our common law for decades.
IV. FOURTEENTH AMENDMENT DUE PROCESS
The right to be free from double jeopardy is a
fundamental right
deeply ingrained in at least the Anglo-American system of
jurisprudence.... [T]he State with all its resources and
power should not be allowed to make repeated attempts to
convict an individual for an alleged offense, thereby sub-
jecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even
though innocent he may be found guilty. [Green, supra at
187-188.]
As Justice Black once observed, “double prosecutions
for the same offense are so contrary to the spirit of our
17
Ante at 164.
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free country that they violate even the . . . Fourteenth
Amendment.” Bartkus, supra at 150-151 (Black, J.,
dissenting).
Justice Black recognized that, from an individual’s
perspective, multiple punishments inflict the same in-
justice whether levied by officers wearing one uniform
or several. “In each case... [one] is forced to face
danger twice for the same conduct.” Bartkus, supra at
155 (Black, J., dissenting).
It is incompatible with fundamental justice that a
person who has already faced trial in another court
system should again be exposed to jeopardy in Michi-
gan’s courts. The dual threat from the single act is
“repugnant to the conscience of mankind.” See Palko,
supra at 323. If the essence of due process, fairness, is to
be recognized, one of its features must be this guaran-
tee: a person may be exposed to the gauntlet of criminal
proceedings only once for the same misconduct.
It does not matter to the individual that two separate
sovereigns are responsible for the proceedings. What
matters is that the government has resources and
power the individual does not. Therefore, the govern-
ment should not be
allowed to make repeated attempts to convict an individual
for an alleged offense, thereby subjecting him to embar-
rassment, expense and ordeal and compelling him to live in
a continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent he
may be found guilty. [Green, supra at 187-188.]
The Due Process Clause of the Fourteenth Amend-
ment of the United States Constitution requires a
recognition that subjecting an individual to a second
trial violates the fundamental fairness due every citizen
of the United States.
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V. THE DOCTRINE OF STARE DECISIS
“[S]tare decisis ‘promotes the evenhanded, predictable,
and consistent development of legal principles, fosters
reliance on judicial decisions, and contributes to the actual
and perceived integrity of the judicial process.’ ” [United
States v Int’l Business Machines Corp, 517 US 843, 856;
116 S Ct 1793; 135 L Ed 2d 124 (1996), quoting Payne v
Tennessee, 501 US 808, 827; 111 S Ct 2597; 115 L Ed 2d 720
(1991). See also People v Petit, 466 Mich 624, 633; 648
NW2d 193 (2002).]
To overturn a previous decision of this Court, we must
be convinced that it was wrongly decided. In addition,
we must conclude that greater injury will result from
adhering to it than from correcting it. Petit, supra at
634, citing McEvoy v Sault Ste Marie, 136 Mich 172,
178; 98 NW 1006 (1904). A departure from precedent
must be based on a “ ‘ “special justification.” ’ ” Dick-
erson v United States, 530 US 428, 443; 120 S Ct 2326;
147 L Ed 2d 405 (2000), quoting Int’l Business Ma-
chines Corp, supra at 856, quoting Payne, supra at 842
(Souter, J., concurring), quoting Arizona v Rumsey, 467
US 203, 212; 104 S Ct 2305; 81 L Ed 2d 164 (1984).
Nine years ago, Justice W
EAVER
’s lead opinion in
Mezy indicated a desire to overrule Cooper. Her position
did not gain the support of a majority of the justices.
The only change that could explain today’s decision to
overrule Cooper is the change in the make-up of this
Court. Justice L
EVIN
’s criticism in Mezy
18
of the lead
opinion’s desire to overrule Cooper is just as applicable
today as it was when written. There has been no
intervening showing that Cooper was clearly erroneous.
18
Because three justices indicated that they would overrule Cooper
even though reaching the issue was unnecessary, three other justices
explained why they would not overrule the case. Justice B
RICKLEY
simply
indicated that Cooper need not be addressed by the Court.
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The majority claims that Cooper is bad law. Its reason
is that the Cooper Court did not apply the doctrine of
dual sovereignty as articulated by the United States
Supreme Court and that it misconstrued where the
United States Supreme Court was headed.
Yet, although Cooper alluded to the track the United
States Supreme Court appeared to be taking, it specifi-
cally noted that its decision was based on the Michigan
Constitution. This majority’s constrictive reading of the
double jeopardy rights our constitution provides dis-
agrees with the Cooper approach. It overrules Cooper
without showing in what respect the Cooper analysis of
our state Double Jeopardy Clause is wrong.
This lack of an explanation is understandable when
one considers that there is nothing unworkable about
Cooper. The majority asserts that less injury will result
from overruling Cooper than from allowing it to stand.
I believe that less injury will result only if one assumes
that everyone accused of a crime is guilty. More injury
will result to those our criminal justice system has been
created to protect, those who are falsely accused. Here-
after, if one sovereign prosecutes and the accused is
found not guilty, the sovereign may work with Michigan
to achieve what it could not, secure conviction.
The majority’s approach ignores the fact that, by
overruling a dozen or more cases each term, it destabi-
lizes our state’s jurisprudence. It suggests to the public
that the law is at the whim of whoever is sitting on the
Supreme Court bench. Surely, it erodes the public’s
confidence in our judicial system. Less harm would
result from retaining Cooper than from reversing it.
VI. CONCLUSION
Because I believe that Cooper provides the correct
framework, based on the Michigan Constitution, for
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resolving double jeopardy concerns, I would affirm the
decision of the Court of Appeals.
I disagree with the majority that Cooper must fall.
The Cooper decision was not incorrect when it was
decided or when its holding was unanimously reaf-
firmed by this Court in Gay. It is not incorrect today.
Greater injustices will come from its abandonment than
from its retention.
One cannot but wonder if this departure from prece-
dent will encourage the people of Michigan to “adjust
themselves to all other violations of the Bill of Rights
should they be sanctioned by this Court.” Bartkus,
supra at 163 (Black, J., dissenting).
Overturning Cooper strikes at the integrity of our
justice system. It represents a greater threat to public
security than it does a protection from criminals. The
decisions in Cooper and Gay and the Court of Appeals
decision in this case should be upheld.
C
AVANAGH,
J. (dissenting). I concur with the result
reached by Justice K
ELLY
in her dissent. I also fully
concur with the reasoning articulated in parts IV, Four-
teenth Amendment Due Process, and V, The Doctrine of
Stare Decisis, of Justice K
ELLY
’s opinion.
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AVANAGH
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ECHELON HOMES, LLC v CARTER LUMBER COMPANY
Docket Nos. 125994, 125995. Decided April 12, 2005. On application by
the defendant for leave to appeal, the Supreme Court, after
hearing oral argument on whether the application should be
granted and in lieu of granting leave, reversed the judgment of the
Court of Appeals and remanded the case to the circuit court for a
hearing.
Echelon Homes, L.L.C., brought an action in the Oakland Circuit
Court against Carter Lumber Company, seeking treble damages
under MCL 600.2919a for Carter’s alleged aiding in the conceal-
ment of stolen, embezzled, or converted property in allowing an
employee of Echelon to open and use a charge account at Carter in
the name of Echelon. Carter brought a counterclaim, seeking the
outstanding balance on the account. The court, Gene Schnelz, J.,
granted motions for summary disposition by both parties. Both
parties appealed and the appeals were consolidated by the Court of
Appeals. The Court of Appeals, H
OEKSTRA
,P.J., and S
AWYER
and
G
AGE
, JJ., affirmed the summary dismissal of Carter’s claims
against Echelon, but reversed the summary dismissal of two of
Echelon’s claims against Carter, holding that constructive knowl-
edge that property is stolen, embezzled, or converted is sufficient
to impose liability under MCL 600.2919a. 261 Mich App 424
(2004). Carter sought leave to appeal. The Supreme Court ordered
oral argument on whether to grant the application, limited to the
issue whether the Court of Appeals correctly held that construc-
tive knowledge is sufficient to impose liability on Carter under
MCL 600.2919a. 471 Mich 916 (2004).
In an opinion by Justice W
EAVER
, joined by Chief Justice
T
AYLOR
, and Justices C
ORRIGAN,
Y
OUNG
, and M
ARKMAN
, the Supreme
Court held:
Constructive knowledge is not sufficient to impose liability
under MCL 600.2919a. The case must be remanded to the circuit
court for a hearing on whether there is a material issue of fact
regarding whether there is sufficient circumstantial evidence to
establish that Carter knew the property was stolen, embezzled, or
converted.
192 472 M
ICH
192 [Apr
1. Constructive knowledge that property is stolen, embezzled,
or converted is not sufficient to impose liability under MCL
600.2919a, which requires that a person “knew” that property
was stolen, embezzled, or converted in order to be held liable for
aiding the concealment of stolen, embezzled, or converted prop-
erty. That the person should have known is not sufficient to
impose liability under the statute. Constructive knowledge is a
distinct concept from knowledge, and cannot replace the require-
ment of knowledge in a statute. To the extent that the opinion in
People v Tantenella, 212 Mich 614 (1920), stated otherwise, it
must be overruled.
2. The defendant’s knowledge that the property was stolen,
embezzled, or converted can be established by circumstantial
evidence.
3. Carter was under no obligation under MCL 600.2919a to
make an inquiry into Echelon’s employee’s authority to conduct
transactions in Echelon’s name.
Reversed and remanded to the circuit court.
Justice C
AVANAGH
, joined by Justice K
ELLY
, dissenting, agreed
with the majority that circumstantial evidence can be sufficient to
establish the knowledge requirement of MCL 600.2919a. However,
the number of statutes in which the Legislature plainly expresses
that actual knowledge is required belies the majority’s position
that the term “knew” in § 2919a means only actual knowledge.
The use of the term “knew” must be viewed as allowing a broad
range of knowledge to meet the statutory knowledge requirement.
The word “knew” in § 2919a encompasses actual and constructive
knowledge, and the defendant had a duty to make obvious inquir-
ies that an honest person using ordinary caution would have made,
instead of avoiding these inquiries.
R
ECEIVING
S
TOLEN
G
OODS —
S
TATUTORY
C
ONVERSION —
K
NOWLEDGE
.
A person must know that the property was stolen, embezzled, or
converted in order to be held liable under the statute that allows
recovery of treble damages by one who is damaged as a result of
the person’s buying, receiving, or aiding in the concealment of
stolen, embezzled, or converted property; although constructive
knowledge is not sufficient, the required knowledge can be estab-
lished by circumstantial evidence (MCL 600.2919a).
Kickham Hanley P.C. (by Timothy O. McMahon) for
the plaintiff.
2005] E
CHELON
H
OMES V
C
ARTER
L
UMBER
C
O
193
Russell & Stoychoff, P.C. (by Paul M. Stoychoff), for
the defendant.
Amicus Curiae:
Warner Norcross & Judd LLP (by Jeffrey O. Birkhold
and Matthew T. Nelson) for Michigan Bankers Associa-
tion.
W
EAVER,
J. MCL 600.2919a provides that a person
who buys, receives, or aids in concealing stolen, em-
bezzled, or converted property can be held liable for
treble damages if he knew that the property was stolen,
embezzled, or converted. The sole issue before this
Court is whether constructive knowledge that property
is stolen, embezzled, or converted is sufficient to impose
liability under MCL 600.2919a. We hold that under the
plain language of the statute, constructive knowledge is
not sufficient to impose liability under MCL 600.2919a.
Therefore, we reverse the judgment of the Court of
Appeals and hold that the statute requires exactly what
it says—that the person knew that the property had
been stolen, embezzled, or converted.
We remand this case to the trial court for a hearing
on whether there is a material issue of fact regarding
whether there is sufficient circumstantial evidence to
establish that defendant knew the property was stolen,
embezzled, or converted.
FACTS AND PROCEDURAL HISTORY
Plaintiff Echelon Homes, L.L.C., employed Carmella
Wood as its bookkeeper and office manager from 1997
to 2000. During her employment, Wood engaged in
fraudulent schemes against Echelon, including, but not
limited to, forging company checks to herself, opening
company credit cards in her name, and opening lines of
194 472 M
ICH
192 [Apr
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OURT
credit to herself in Echelon’s name. During this time,
Wood opened an unauthorized account with defendant
Carter Lumber Company and purchased approximately
$87,000 in materials used to remodel her home and her
brother’s home. Echelon did not discover Wood’s
fraudulent activity until June 2000, when it learned
that Wood had embezzled over $500,000. When Wood’s
embezzlement was discovered, Echelon had an out-
standing invoice from Carter for approximately
$27,000.
Carter had extended a line of credit to Wood under
Echelon’s company name. Wood forged the credit
application to initially obtain the account. Subse-
quently, Carter continued to increase the line of credit
to Wood, to the point that Echelon became one of its
largest credit customers. Carter never verified that
Echelon had in fact authorized the credit account, nor
did it ever verify that Wood had the authority to
receive credit increases. Carter delivered goods to
Wood’s relatives and allowed her relatives to pick up
goods without verifying that they were authorized by
Echelon. Carter signed lien waivers for goods purport-
edly delivered to Echelon for specific jobs when Carter
knew it had never delivered goods for those jobs. Wood
has testified that she was not working with Carter, or
any of Carter’s agents, and that she was “scamming”
Carter as well.
Echelon filed suit against Carter under various theo-
ries, including MCL 600.2919a, aiding and abetting
conversion. Carter filed a counterclaim against Echelon
for the $27,000 outstanding invoice. The trial court
granted both parties’ motions for summary disposition.
Both parties appealed. The Court of Appeals affirmed
the summary dismissal of Carter’s claims against Ech-
elon, but reversed the summary dismissal of two of
2005] E
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OMES V
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ARTER
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UMBER
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O
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OURT
Echelon’s claims against Carter. Echelon Homes, LLC v
Carter Lumber Co, 261 Mich App 424; 683 NW2d 171
(2004).
Carter filed an application for leave to appeal with
this Court. This Court scheduled oral argument on the
application for leave to appeal, limited to whether the
Court of Appeals correctly held that constructive
knowledge was sufficient to impose liability under MCL
600.2919a. Echelon Homes, LLC v Carter Lumber Co,
471 Mich 916 (2004).
ANALYSIS
The issue before us is whether constructive knowl-
edge is sufficient to impose liability under MCL
600.2919a, which requires that a person “knew” that
property was stolen, embezzled, or converted in order to
be held liable for aiding and abetting.
This is a question of statutory interpretation, which
this Court reviews de novo. Stozicki v Allied Paper Co,
Inc, 464 Mich 257, 263; 627 NW2d 293 (2001). In
reviewing questions of statutory construction, our pur-
pose is to discern and give effect to the Legislature’s
intent. People v Morey, 461 Mich 325, 329-330; 603
NW2d 250 (1999). “We begin by examining the plain
language of the statute; where that language is unam-
biguous, we presume that the Legislature intended the
meaning clearly expressed—no further judicial con-
struction is required or permitted, and the statute must
be enforced as written.” Id. at 330. “We must give the
words of a statute their plain and ordinary mean-
ing....”Id. The plain and ordinary meaning of words
can be ascertained by looking at dictionary definitions.
Koontz v Ameritech Services, Inc, 466 Mich 304, 312;
645 NW2d 34 (2002).
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A
MCL 600.2919a states:
A person damaged as a result of another person’s
buying, receiving, or aiding in the concealment of any
stolen, embezzled, or converted property when the person
buying, receiving, or aiding in the concealment of any
stolen, embezzled, or converted property knew that the
property was stolen, embezzled, or converted may recover
3 times the amount of actual damages sustained, plus costs
and reasonable attorney’s fees. [Emphasis added.]
A plain reading of this statute indicates that a person
must know that the property was stolen, embezzled, or
converted in order to be held liable. That the person
“should have known” is not sufficient to impose liability
under the statute.
The term “know” does not encompass constructive
knowledge, that one “should have known.” Black’s Law
Dictionary (8th ed) defines “knowledge” as “[a]n aware-
ness or understanding of a fact or circumstance; a state
of mind in which a person has no substantial doubt
about the existence of a fact.” “Constructive knowl-
edge,” on the other hand, is defined as “[k]nowledge
that one using reasonable care or diligence should have,
and therefore that is attributed by law to a given
person.” Id.
Constructive knowledge is a distinct concept from
knowledge, and cannot replace the requirement of
knowledge in a statute. The Legislature uses the terms
“knew” and “should have known” to indicate a differ-
ence between knowledge and constructive knowledge.
1
We found thirty-eight statutes that refer to constructive
knowledge, using a variation of the phrase “knew or
1
The dissent argues that the Legislature’s frequent use of the term
“actual knowledge” refutes our position that the term “knew,” as used in
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should have known.” See MCL 205.14(2)(d) (a tobacco
seller or distributor can be held liable for illegally
selling tobacco products if it “knew or should have
known that the manufacturer intended the tobacco
product to be sold or distributed” outside the prescribed
area); MCL 691.1417(3)(c) (to receive compensation for
property damage or physical injury from a governmen-
tal agency the claimant must show that “[t]he govern-
mental agency knew, or in the exercise of reasonable
diligence should have known, about the defect”); MCL
565.831(4) (a person who provides a statement used in
an application for registration or property report is
liable only for false statements and omissions in his
statement and only “if it is proved he knew or reason-
ably should have known of the existence of the true
facts by reason of which the liability is alleged to exist”);
MCL 445.1902(b)(ii)(B) (misappropriation of a trade
secret includes one who disclosed or used a trade secret
of another when, at the time of disclosure or use, the
person “knew or had reason to know that his or her
this statute, is not satisfied by constructive knowledge. But the dissent
overlooks the fact that the Legislature uses the terms “knowledge” and
“knew” very differently.
There are some thirty-eight statutes that use a variation of the phrase
“knew or should have known”; for those statutes constructive knowledge
is sufficient. By contrast, there is only one statute, MCL 554.636, that
uses the phrase “actually knew.” (Ten statutes, including this one, use
the bare word “knew.”) The Legislature’s ability to denote the type of
knowledge required is better evidenced by the thirty-eight statutes in
which it explicitly called for constructive knowledge than by the one
occasion in which it used the term “actually.”
The dissent cites forty-eight statutes in which the Legislature uses the
phrase “actual knowledge.” By contrast, there are only seven statutes
that refer to “actual or constructive knowledge.”
The multiple citations to statutes referencing “actual knowledge” do
not affect the correct interpretation of the statute at issue here, which
uses the term “knew.”
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knowledge of the trade secret was derived from or
through a person who had utilized improper means to
acquire it”).
Relying on People v Tantenella, 212 Mich 614; 180
NW 474 (1920), Echelon argues that this Court has
historically used constructive knowledge to impose li-
ability under a criminal aiding and abetting statute.
In Tantenella, the defendant was charged with re-
ceiving a stolen car. The defendant claimed that he did
not know that the car was stolen. However, the Court
determined that the defendant had sufficient guilty
knowledge to be guilty of the crime. Id. at 620. The
Tantenella Court stated, “Guilty knowledge means not
only actual knowledge, but constructive knowledge,
through notice of facts and circumstances from which
guilty knowledge may fairly be inferred.” Id. at 621.
The Court went on to list facts that implied the guilty
knowledge of the defendant: receiving possession of the
car hours after it had been stolen, driving to Chicago
with the suspected thief, changing the motor number
and license number, claiming ownership, producing a
fraudulent bill of sale, and giving authorities conflicting
names. Id. All these facts were used by the Court to
determine that the defendant was guilty of receiving
stolen property.
Although the Tantenella Court characterized its
analysis of these facts as examining the defendant’s
constructive knowledge, the Court was, in fact, deter-
mining that the defendant had knowledge, proven by
circumstantial evidence, that the car was stolen. This is
shown by the Court’s extensive analysis of the facts that
led it to believe that the defendant had knowledge. The
Tantenella Court used the term “constructive knowl-
edge” synonymously with knowledge proven through
circumstantial evidence. Thus, the Court’s use of the
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term “constructive knowledge” is a misnomer; what the
Court really meant was knowledge proven by circum-
stantial evidence.
The Tantenella Court’s holding regarding “construc-
tive knowledge” has correctly been interpreted by sub-
sequent courts to mean actual knowledge proven by
circumstantial evidence. See, e.g., People v Westerfield,71
Mich App 618; 248 NW2d 641 (1976) (the defendant was
found guilty of receiving a stolen car on the basis of
suspicious circumstances surrounding his purchase);
People v Blackwell, 61 Mich App 236, 240-241; 232 NW2d
368 (1975) (“although the term may convey a special
meaning to lawyers, it is apparent that the T antenella
Court and the others which have used the identical
instructions since T antenella used the term “construc-
tive knowledge” as a shorthand way of saying that this
element of the charge may be proven circumstantially”);
People v White, 22 Mich App 65, 68; 176 NW2d 723
(1970) (the defendant was charged with knowingly con-
cealing stolen property on the basis of circumstantial
evidence); People v Keshishian, 45 Mich App 51, 53; 205
NW2d 818 (1973) (circumstantial evidence sufficient to
make prima facie showing of guilty knowledge).
We hold that, under MCL 600.2919a, constructive
knowledge is not sufficient; a defendant must know
that the property was stolen, embezzled, or converted.
To the extent that Tantenella stated otherwise, it is
overruled. But consistent with the actual holding in
Tantenella, a defendant’s knowledge that the property
was stolen, embezzled, or converted can be established
by circumstantial evidence.
B
Echelon also argues, and the Court of Appeals
agreed, that Carter was required to make a reasonably
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diligent inquiry into whether Wood was authorized to
open credit accounts and conduct transactions in Ech-
elon’s name. In support of this argument Echelon relies
on In re Thomas Estate, 211 Mich App 594; 536 NW2d
579 (1995). In Thomas, a bank improperly released
funds to the former guardian of a minor, despite the fact
that her guardianship had been terminated. At the time
of the transaction, the bank had in its possession a
letter that explicitly stated that the guardianship had
been terminated. The bank was found liable for the
improper release, and was required to compensate the
estate of the minor for the loss.
The Court of Appeals in the present case reasoned
that just as the bank in Thomas was required to make
a diligent inquiry about the authority of the guardian,
Carter was required to inquire about Wood’s authority
concerning Echelon. We disagree.
Thomas dealt with MCL 700.483, which in relevant
part before its repeal stated: “The fact that a person
knowingly deals with a conservator does not alone re-
quire the person to inquire into the existence of a power
or the propriety of its exercise, except that restrictions on
powers of conservators which are indorsed on letters as
provided in section 485 are effective as to third persons.”
(Emphasis added.) This statute explicitly stated that a
bank does not need to make further inquiry into the
powers of a conservator except when there are letters
that restrict the conservator’s powers. In Thomas, there
were letters—letters that explicitly stated the date when
the guardianship was to terminate. The bank did not
consult these letters when it statutorily had an affirma-
tive duty to do so. As a result, the bank was held liable for
improper disbursement of funds.
But the statute in the present case, MCL 600.2919a,
imposes no duty on the defendant to make an inquiry.
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Therefore, Carter was not statutorily bound to make an
inquiry into Wood’s authority, and Echelon’s analogy to
Thomas is misplaced.
CONCLUSION
Constructive knowledge is not sufficient to impose
liability under MCL 600.2919a. The term “knew” in the
statute means knowledge that the property is stolen,
embezzled, or converted.
In lieu of granting leave to appeal, we reverse the
Court of Appeals holding that constructive knowledge is
sufficient to impose liability under MCL 600.2919a.
However, the trial court did not determine whether
there was a material issue of fact concerning whether
there was sufficient circumstantial evidence to estab-
lish that Carter knew that Wood’s transactions were
fraudulent. Accordingly, we remand this case to the trial
court for a hearing on this issue. Defendant’s applica-
tion for leave to appeal on the remaining issues is
denied, because we are not persuaded that the ques-
tions presented should be reviewed by this Court.
T
AYLOR
, C.J., and C
ORRIGAN
,Y
OUNG
, and M
ARKMAN
,
JJ., concurred with W
EAVER
,J.
C
AVANAGH,
J. (dissenting). I agree with the majority
that circumstantial evidence can be sufficient to estab-
lish the knowledge requirement of MCL 600.2919a.
However, I disagree with the majority’s contention that,
as it relates to MCL 600.2919a, constructive knowledge
is a distinct concept from knowledge.
1
The word “knew”
1
MCL 600.2919a states the following:
A person damaged as a result of another person’s buying,
receiving, or aiding in the concealment of any stolen, embezzled, or
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as used in MCL 600.2919a encompasses actual and
constructive knowledge; therefore, I must respectfully
dissent.
The Legislature knows how to use the term “actual
knowledge” and has used this term on numerous occa-
sions. The number of statutes in which the Legislature
plainly expresses that actual knowledge is required
belies the majority’s position that the term “knew”
means only actual knowledge.
For example, in the following statutes the Legislature
had no difficulty expressing the requirement of actual
knowledge. MCL 15.305(1) (“with actual knowledge of
such prohibited conflict”); MCL 15.325(1) (“with actual
knowledge of the prohibited activity”); MCL
28.425a(2)(c) (“The prosecuting attorney shall disclose
to the concealed weapon licensing board any informa-
tion of which he or she has actual knowledge that bears
directly on an applicant’s suitability to carry a con-
cealed pistol safely.”); MCL 35.501 (“without actual
knowledge”); MCL 205.29(2) (“had actual knowledge”);
MCL 286.192(1) (“unless the person has actual knowl-
edge”); MCL 324.5531(7) (“in proving a defendant’s
possession of actual knowledge, circumstantial evidence
may be used”); MCL 324.11151(5)(b) (“in proving the
defendant’s possession of actual knowledge, circum-
stantial evidence may be used”); MCL 333.2843b(1)
(“a physician . . . has actual knowledge”); MCL
333.5475a(1)(b) (“the property manager, housing com-
mission, or owner of the rental unit had actual knowl-
converted property when the person buying, receiving, or aiding in
the concealment of any stolen, embezzled, or converted property
knew that the property was stolen, embezzled, or converted may
recover 3 times the amount of actual damages sustained, plus costs
and reasonable attorney’s fees. This remedy shall be in addition to
any other right or remedy the person may have at law or
otherwise.
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edge of the lead paint hazard”); MCL 333.13738(5)(b)
(“in proving the defendant’s possession of actual
knowledge, circumstantial evidence may be used”);
MCL 333.17015(14) (“the physician who relied upon
the certification had actual knowledge”); MCL
390.1553(3)(a) (“does not have actual knowledge”);
MCL 418.131(1) (“if the employer had actual knowledge
that an injury was certain to occur”); MCL 432.207c(7)
(“report all information ...of which it has actual
knowledge”); MCL 440.1201(25) (“[a] person has ‘no-
tice’ of a fact when he or she has actual knowledge of
it”); MCL 441.107(a) (“unless it is shown that he acted
with actual knowledge”); MCL 445.813(1) (“unless done
with actual knowledge”); MCL 449.1303(a) (“with ac-
tual knowledge of the limited partner’s participation in
control”); MCL 450.1472(2) (“with actual knowledge of
the restriction”); MCL 450.4406(b) (“has actual knowl-
edge”); MCL 487.717(1) (“shall not be chargeable with
changes in rights of withdrawal due to death or incom-
petency in absence of actual knowledge”); MCL
490.385(1) (“has actual knowledge of a dispute”); MCL
491.422(2) (“with actual knowledge of the restriction”);
MCL 491.604 (“unless it has actual knowledge that the
facts set forth in the affidavit are untrue”); MCL
500.1371(2) (“with actual knowledge”); MCL
500.8127(2)(c) (“A person having actual knowledge of
the pending rehabilitation or liquidation shall be con-
sidered not to act in good faith.”); MCL 554.636(3)(b)
(“which the lessor actually knew was in violation”);
MCL 554.636(3)(c) (“the lessor actually knew that the
provision was not included”); MCL 557.206(d) (“with-
out actual knowledge of such breach”); MCL
600.1403(1) (“the seller had no actual knowledge of the
actual age”); MCL 600.2945(j) (“does not have actual
knowledge”); MCL 600.2949a (“the defendant had ac-
tual knowledge that the product was defective”); MCL
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600.2974(3)(d) (“with the actual knowledge that the
conduct was injurious to consumers”); MCL
700.2910(1)(c) (“after actual knowledge that a property
right has been conferred”); MCL 700.3714(2) (“with
actual knowledge of the limit”); MCL 700.5318 (“has
actual knowledge that the guardian is exceeding the
guardian’s powers or improperly exercising them”);
MCL 700.5504(1) (“without actual knowledge of the
principal’s death”); MCL 700.5505(1) (“the attorney in
fact did not have actual knowledge of the principal’s
death”); MCL 700.5510(2) (“did not have actual knowl-
edge”); MCL 700.7404 (“without actual knowledge”);
MCL 750.159k(4)(a) (“did not have prior actual knowl-
edge”); MCL 750.159m(4) (“did not have prior actual
knowledge”); MCL 750.159q(1)(b) (“had prior actual
knowledge of the commission of an offense”); MCL
750.159r(1)(a) (“who did not have prior actual knowl-
edge”); MCL 750.219e(3)(a) (“without prior actual
knowledge”); MCL 750.219f(4)(a) (“without prior ac-
tual knowledge”); MCL 750.411j(b) (“with the approval
or prior actual knowledge”); MCL 750.411k(1) (“with
prior actual knowledge”); MCL 750.540d(a) (“had prior
actual knowledge of and consented to the violation”).
I list these statutes not to overwhelm the reader, but
to show the fallacy of the majority’s position. The
Legislature is fully aware of how to ensure a statutory
requirement of actual knowledge. In MCL 600.2919a, it
has not done so. This Court does not have the authority
to impose an actual knowledge requirement when the
Legislature has not seen fit to do so. See In re MCI
Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164
(1999).
The Legislature’s ability to clearly state an actual
knowledge requirement is indisputable given the num-
ber of statutes in which it expresses this requirement.
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Therefore, the Legislature’s use of the term “knew” in
MCL 600.2919a must be viewed as allowing a broad
range of knowledge to meet the statutory knowledge
requirement.
This Court recognized the difference in specificity
between using the terms “actual knowledge” and
“knowledge” in Travis v Dreis & Krump Mfg Co, 453
Mich 149, 173; 551 NW2d 132 (1996). As this Court
stated in Travis, supra at 173, “Because the Legislature
was careful to use the term ‘actual knowledge,’ and not
the less specific word ‘knowledge,’ we determine that
the Legislature meant that constructive, implied, or
imputed knowledge is not enough.” Logically, the oppo-
site is also true. The Legislature’s careful selection of
the term “knew,” instead of “actually knew,” indicates
that a broad range of knowledge is sufficient to meet the
statutory requirement. Because the Legislature’s choice
of the word “knew” encompasses constructive knowl-
edge, defendant had a duty to make obvious inquiries
that an honest person using ordinary caution would
have made, instead of avoiding these inquiries. See
Deputy Comm’r of AgriculturevO&AElectric Co-op,
Inc, 332 Mich 713, 716-717; 52 NW2d 565 (1952).
Because this Court must follow the plain text of a
statute and because the Legislature used the term
“knew,” which encompasses actual and constructive
knowledge, I disagree with the majority’s contention
that constructive knowledge is insufficient to satisfy the
requirement of MCL 600.2919a. Accordingly, I respect-
fully dissent.
K
ELLY
, J., concurred with C
AVANAGH
,J.
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JARRAD v INTEGON NATIONAL INSURANCE COMPANY
Docket No. 126176. Decided May 3, 2005. On application by the defen-
dant for leave to appeal, the Supreme Court, after hearing oral
argument on whether to grant the application and in lieu of
granting leave to appeal, reversed the judgment of the Court of
Appeals and remanded the matter to the trial court for entry of an
order granting summary disposition for the defendant. Rehearing
denied post, 1251.
Arthur T. Jarrad brought an action in the Ingham Circuit Court
against Integon National Insurance Company, seeking to challenge
the decision of the defendant, the plaintiff’s no-fault insurer, to
deduct from the plaintiff’s no-fault wage loss benefits long-term
disability plan benefits the plaintiff received for the same automo-
bile accident that gave rise to the wage loss benefits. The deduction
was made pursuant to a coordination-of-benefits clause in the
no-fault policy. The plaintiff claimed that the long-term disability
benefits, which were provided to the plaintiff under a long-term
disability plan established by a collective bargaining agreement and
administered by an insurance company but self-funded by deduc-
tions from employees’ paychecks and employer contributions, were
not “other health and accident coverage” subject to coordination
under MCL 500.3109a. On cross-motions for summary disposition,
the trial court, Lawrence M. Glazer, J., agreed with the plaintiff and
granted summary disposition in his favor. The Court of Appeals,
C
AVANAGH
and C
OOPER
,JJ.(Z
AHRA
,P.J., dissenting), affirmed in an
unpublished opinion per curiam, issued January 27, 2004 (Docket
No. 245068), concluding that the term “coverage” refers to protec-
tion afforded by an insurance policy or the sum of the risks assumed
by a policy of insurance. The Court construed Spencer v Hartford
Accident & Indemnity Co, 179 Mich App 389 (1989), to preclude
coordination where an employee receives wage loss benefits from
his employer through a formal wage continuation plan pursuant to
a collective bargaining agreement. The defendant sought leave to
appeal. The Supreme Court ordered oral argument on whether to
grant the application or take other action. 471 Mich 914 (2004).
In an opinion by Justice C
ORRIGAN,
joined by Chief Justice
T
AYLOR
, and Justices W
EAVER,
Y
OUNG,
and M
ARKMAN
, the Supreme
Court held:
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ARRAD V
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207
A self-funded long-term disability plan constitutes “other
health and accident coverage” that is subject to coordination
under § 3109a. The term “other health and accident coverage”
does not require that a risk actually be insured under a commer-
cial insurance policy. The central question is not whether an
insurance company actually provided the coverage, but rather
whether the coverage is typically provided by an insurance
company. There is no question in this case that long-term
disability benefits are typically provided by insurance companies.
The fact that the coverage here was self-funded by employer and
payroll contributions, rather than by a separate insurance com-
pany, does not alter the fact that this type of coverage is typically
provided by insurance companies. The existence of a collective
bargaining agreement does not negate the existence of other
health and accident coverage under § 3109a. The opinion in
Spencer must be overruled to the extent that it is inconsistent
with this opinion.
Reversed and remanded to the circuit court for entry of an
order granting summary disposition for the defendant.
Justice C
AVANAGH
, joined by Justice K
ELLY
, dissenting, stated
that the long-term disability plan covering the plaintiff does not
constitute “other health and accident coverage” subject to coor-
dination under MCL 500.3109a. The majority should not overrule
Spencer and should not decide the significant issue in this case
without the benefit of full briefing and oral argument. The
dichotomy set forth by Spencer and Rettig v Hastings Mut Ins Co,
196 Mich App 329 (1992), is not inconsistent with the Legisla-
ture’s intent in enacting § 3109a. There is a difference between a
self-funded, noninsurance long-term disability plan pursuant to a
collective bargaining agreement and a so-called typical insurance
plan for purposes of the statute. The Legislature intended this
difference to be dispositive when it refused to incorporate into
§ 3109a the broader provision contained in the model uniform act
on which the no-fault act was patterned. Spencer was not
wrongly decided. Rather, the Spencer panel properly consulted
the model act’s language and official comments when making its
decision. Where, as in this matter, the no-fault act provision is
narrower than the comparable provision of the model act, and a
self-funded noninsurance long-term disability plan under a col-
lective bargaining agreement is implicated, the no-fault act
produces a result different from the model act. The decision of
the Court of Appeals should be affirmed.
1. I
NSURANCE —
N
O
-F
AULT —
P
ERSONAL
P
ROTECTION
I
NSURANCE —
C
OORDINATION
OF
B
ENEFITS —
L
ONG
-T
ERM
D
ISABILITY
P
LANS
.
A self-funded long-term disability plan constitutes “other health and
208 472 M
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207 [May
accident coverage” that is subject to coordination under § 3109a of
the no-fault act (MCL 500.3109a).
2. I
NSURANCE —
N
O
-F
AULT —
P
ERSONAL
P
ROTECTION
I
NSURANCE —
C
OORDINATION
OF
B
ENEFITS
.
The central question in determining whether coverage is “other
health and accident coverage” subject to coordination under the
no-fault act is not whether an insurance company actually
provided the coverage, but rather whether the coverage is typi-
cally provided by an insurance company (MCL 500.3109a).
Sinas, Dramis, Brake, Boughton & McIntyre, P.C. (by
George T. Sinas and L. Page Graves), for the plaintiff.
Garan Lucow Miller, P.C. (by James L. Borin and
Daniel S. Saylor), for the defendant.
C
ORRIGAN,
J. In this no-fault coordination-of-benefits
case, the trial court and the Court of Appeals ruled
that an employer’s self-funded long-term disability
plan may not be coordinated with no-fault wage loss
benefits. We hold that a self-funded long-term disabil-
ity plan constitutes “other health and accident cover-
age” that is subject to coordination under MCL
500.3109a. We therefore reverse the judgment of the
Court of Appeals, and remand the matter to the trial
court for entry of an order granting summary disposi-
tion for defendant.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
Plaintiff sustained injuries in an automobile acci-
dent. At the time of the accident, he was employed by
the Michigan Department of Corrections. Under a col-
lective bargaining agreement, the state provided a long-
term disability (LTD) plan that covered plaintiff. An
insurance company administered the plan and pro-
cessed benefit payments, but the plan was self-funded
2005] J
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by deductions from employees’ paychecks and employer
contributions.
Following the accident, plaintiff began receiving
monthly payments of $2,220.04 under the LTD plan.
Under the coordination-of-benefits clause in plaintiff’s
no-fault policy, defendant, plaintiff’s no-fault insurer,
deducted the LTD benefits from its no-fault wage loss
payments, for a net amount of $1,467.76 a month for
three years following the accident.
1
Plaintiff filed this
action to challenge the coordination of benefits. The
parties filed cross-motions for summary disposition.
The trial court granted summary disposition for plain-
tiff.
The Court of Appeals affirmed in a two-to-one deci-
sion.
2
The majority noted that MCL 500.3109a permits
coordination of no-fault benefits with “other health and
accident coverage....”Themajority explained that in
LeBlanc v State Farm Mut Automobile Ins Co, 410 Mich
173, 204; 301 NW2d 775 (1981), this Court had con-
strued the word “coverage” as “a word of precise
meaning in the insurance industry, [that] refers to
protection afforded by an insurance policy, or the sum of
the risks assumed by a policy of insurance.” While this
definition has expanded under Court of Appeals case
law to include medical benefits received from health
plans typically provided by insurers, the majority
opined that no such expansion of the term “coverage”
has occurred regarding work-loss benefit plans.
Moreover, the majority construed Spencer v Hartford
Accident & Indemnity Co, 179 Mich App 389; 445 NW2d
1
Under MCL 500.3107(1)(b), no-fault wage loss benefits are payable
for up to three years after the accident.
2
Unpublished opinion per curiam, issued January 27, 2004 (Docket
No. 245068).
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520 (1989), to preclude coordination where an employee
receives “wage loss benefits from his employer through
a formal wage continuation plan pursuant to a collec-
tive bargaining agreement.” The majority distinguished
Rettig v Hastings Mut Ins Co, 196 Mich App 329; 492
NW2d 526 (1992), because in that case LTD benefits
were provided under an insurance policy, rather than
directly by the employer under a collective bargaining
agreement.
Judge Z
AHRA
, the dissenting Court of Appeals judge
in this case, opined that the self-funded LTD plan
constituted “other health and accident coverage” that is
subject to coordination under MCL 500.3109a. Unlike
Spencer, where the employer paid wage continuation
benefits directly to the employee, the instant case
involves an insurance-type benefit paid by a third party
from accumulated payroll contributions. The dissent
would have followed Rettig, in which the Court of
Appeals held that LTD benefits “constitute protection
typically provided by health insurance plans, which
include payments for medical expenses resulting from
an accident as well as wage-loss replacement benefits.”
Rettig, supra at 333 (emphasis added).
Judge Z
AHRA
also opined that the self-funded nature
of the plan was not dispositive, because in drafting
§ 3109a, the Legislature used the broad term “cover-
age” rather than “insurance.” Moreover, case law re-
flects that the phrase “other health and accident cover-
age” includes coverage typically provided by an
insurance company, regardless of whether it is actually
provided by an insurance company in a particular case.
For example, Michigan courts have held that “other
health and accident coverage” includes: military medi-
cal benefits paid by the federal government, Tatum v
Gov’t Employees Ins Co, 431 Mich 663; 431 NW2d 391
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(1988); Medicare benefits, LeBlanc, supra; medical ben-
efits provided under a union plan, Lewis v Trans-
america Ins Corp of America, 160 Mich App 413; 408
NW2d 458 (1987); services offered by health mainte-
nance organizations, United States Fidelity & Guaranty
Co v Group Health Plan of Southeast Michigan, 131
Mich App 268; 345 NW2d 683 (1983); and medical and
disability benefits provided by the Army and Veterans
Administration, Bagley v State Farm Mut Automobile
Ins Co, 101 Mich App 733; 300 NW2d 322 (1980).
Defendant applied for leave to appeal in this Court.
We held oral argument on whether to grant the appli-
cation or take other peremptory action permitted by
MCR 7.302(G)(1).
3
II. STANDARD OF REVIEW
We review de novo the decision whether to grant
summary disposition. Maiden v Rozwood, 461 Mich
109, 120; 597 NW2d 817 (1999). Moreover, the meaning
of the phrase “other health and accident coverage” in
MCL 500.3109a is a question of law that is also re-
viewed de novo. Jenkins v Patel, 471 Mich 158, 162; 684
NW2d 346 (2004).
III. DISCUSSION
A. LEGAL BACKGROUND
MCL 500.3109a states:
An insurer providing personal protection insurance ben-
efits shall offer, at appropriately reduced premium rates,
deductibles and exclusions reasonably related to other
health and accident coverage on the insured. The deduct-
ibles and exclusions required to be offered by this section
3
471 Mich 914 (2004).
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shall be subject to prior approval by the commissioner and
shall apply only to benefits payable to the person named in
the policy, the spouse of the insured and any relative of
either domiciled in the same household.
In Nyquist v Aetna Ins Co, 84 Mich App 589; 269
NW2d 687 (1978), the plaintiffs argued that Blue Cross-
Blue Shield benefits were not insurance
4
and therefore
could not be coordinated with no-fault benefits. The
Court of Appeals concluded that coordination was per-
mitted, noting “that § 3109a uses the word ‘coverage’
rather than ‘insurance’; the use of the broader term
militates against plaintiffs’ restrictive reading of the
section at issue.” Nyquist, supra at 592. Moreover, the
plaintiffs’ restrictive reading would subvert the statu-
tory purpose of eliminating duplicative coverage.
An employee’s use of accumulated sick leave, how-
ever, is not subject to coordination. In Orr v DAIIE,90
Mich App 687; 282 NW2d 177 (1979), the Court of
Appeals noted that the word “coverage” means protec-
tion by an insurance policy, and that the Legislature
thus intended to limit coordination to health and acci-
dent insurance coverage. Sick leave does not fall within
this definition. The plaintiff’s sick bank could fluctuate
depending on usage. Thus, “[a]ny rate reduction
granted based upon this fluctuating benefit could not be
actuarially sound. However, a rate based upon another
policy of insurance with fixed limits of liability would
enable the insurance company to offer appropriately
reduced premium rates.” Id. at 690-691.
In LeBlanc, supra, this Court held that Medicare
benefits were “health and accident coverage” subject to
coordination. This Court stated that because the Legis-
lature did not modify the statutory phrase “other
4
See Michigan Hosp Service v Sharpe, 339 Mich 357; 63 NW2d 638
(1954).
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health and accident coverage” with the word “private,”
the Legislature “intended to give unrestrained applica-
tion of § 3109a to health and accident coverage from
whatever source.” LeBlanc, supra at 202 (emphasis
added). “Thus, both private and non-private plans were
within the scope of the bill.” Id. at 203.
The L eBlanc Court also stated: “ ‘Coverage,’ a word
of precise meaning in the insurance industry, refers to
protection afforded by an insurance policy, or the sum
of the risks assumed by a policy of insurance.” Id.at
204. This Court concluded that Medicare constituted
“other health and accident coverage” because the
Court perceived “no just reason to differentiate Medi-
care from other, more traditional, forms of health and
accident coverage which irrefutably are within the
scope of § 3109a. Just like any so-called private in-
surer, Medicare compensates providers of medical and
hospital services on behalf of participants who require
health care.” Id. at 205. This Court found it “inconse-
quential” that, in other contexts, “Medicare has been
deemed not to be insurance in the usual sense of the
term: the same has been said of Blue Cross and Blue
Shield plans which, according to Nyquist, fall within
§ 3109a.”
5
Id.
5
Although the LeBlanc Court concluded that Medicare was “other
health and accident coverage,” no coordination was allowed in that case
because the insured did not elect a coordinated policy. This Court’s
holding avoided the mandatory coordination provision in MCL
500.3109(1) (“Benefits provided or required to be provided under the
laws of any state or the federal government shall be subtracted from the
personal protection insurance benefits otherwise payable for the injury.”)
by ruling that the permissive coordination provision in MCL 500.3109a
controlled instead. This aspect of the analysis in LeBlanc is not impli-
cated here because it is undisputed that plaintiff chose a coordinated
policy. We also note that Congress has subsequently amended federal law
to make Medicare benefits secondary to no-fault insurance. See 42 USC
1395y(b).
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In United States Fidelity, supra, the Court of Appeals
held that services offered by a health maintenance
organization (HMO) were health and accident coverage
for purposes of § 3109a. The Court of Appeals acknowl-
edged that HMOs “have a unique character. Rather
than providing health insurance and paying for the bills
after the insured has been treated by a doctor, an HMO
is a prepaid plan where the participant pays before
hand for the services themselves....Under traditional
definitions, a health maintenance organization does not
sell insurance.” United States Fidelity, supra at 272
(emphasis added).
But MCL 500.3109a; MSA 24.13109(1) does not refer to
“insurance” but to “health and accident coverage”. Not
only have medical and disability benefits from the Army
and the Veterans Administration been included within this
statute, Bagley v State Farm Mut Automobile Ins Co, 101
Mich App 733; 300 NW2d 322 (1980), but Medicare pay-
ments have also been included. [LeBlanc, supra.] The term
used, “coverage”, is a broad term. [Nyquist, supra.] Accord-
ingly, we hold that the services offered by defendant are
“health and accident coverage” as defined by MCL
500.3109a; MSA 24.13109(1). [Id. at 272-273.]
In Lewis, supra, the Court of Appeals held that a
union plan that pays medical expenses constitutes
“other health and accident coverage” under § 3109a.
The Court of Appeals noted that the intent of this
provision “was to reduce insurance costs by obviating
the potential for double recovery.” Lewis, supra at 418.
“To accomplish this end, the Legislature purposely
used the broad term ‘coverage’ rather than ‘insurance’
in describing health and accident benefits available to
the insured independent of the no-fault contract.” Id.
In Tatum, supra, the Air Force paid the insured’s
medical expenses pursuant to a federal statute. This
Court held that those benefits constituted “other health
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and accident coverage” under § 3109a. Reviewing the
holdings in LeBlanc and Nyquist, the Tatum Court
reasoned:
Military medical coverage is similar to both Blue Cross-
Blue Shield and Medicare in the sense that, in various
forms, each is comprehensive coverage of eligible individu-
als for their medical and hospitalization costs. Further,
Blue Cross-Blue Shield coverage, when provided through
one’s employer, can parallel that which is provided to active
military personnel by the federal government under [the
federal statute]. We can perceive no rational basis for
concluding that military medical benefits, which essen-
tially serve the same purpose as Blue Cross-Blue Shield and
Medicare benefits, are not “health and accident coverage”
within the meaning of § 3109a. [Tatum, supra at 670.]
In Spencer, supra, the Court of Appeals held that
wage continuation benefits paid directly by an employer
pursuant to a collective bargaining agreement did not
constitute “health and accident coverage” under
§ 3109a. The Court of Appeals opined that the Uniform
Motor Vehicle Accident Reparations Act (UMVARA), a
model act on which our no-fault law is based, contained
a broader coordination-of-benefits provision, and that
the model provision would have included wage continu-
ation benefits pursuant to a union agreement. But
because our no-fault law was drafted more narrowly,
the Court of Appeals believed that the Legislature did
not intend to allow coordination in this situation.
In Rettig, supra, the Court of Appeals held that LTD
benefits paid by an insurance company could be coordi-
nated under § 3109a. The panel stated that the phrase
“other health and accident coverage” “has generally
been limited to benefits typically associated with health
insurance plans.” Rettig, supra at 333. The LTD ben-
efits at issue constituted such “coverage” “because they
constitute protection typically provided by health insur-
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ance plans, which include payments for medical ex-
penses resulting from an accident as well as wage-loss
replacement benefits. LeBlanc, supra, p 204.” Rettig,
supra at 333. The panel distinguished Spencer on the
ground that the LTD benefits in Rettig were paid by an
insurance company under an insurance policy, rather
than a collective bargaining agreement.
B. ANALYSIS
While the case law is rather muddled regarding the
precise meaning of the phrase “other health and acci-
dent coverage,” we agree with the Court of Appeals
dissent in this case that the term does not require that
a risk actually be insured under a commercial insurance
policy. As noted in Nyquist, in drafting § 3109a, the
Legislature used the broader term “coverage” rather
than “insurance.” The LeBlanc Court stated that the
term “coverage” refers to protection afforded by an
insurance policy or the sum of risks assumed by an
insurance policy. The Court concluded that Medicare is
sufficiently similar to an insurance policy to constitute
“health and accident coverage.” Similarly, military ben-
efits and HMO benefits have been treated as suffi-
ciently akin to insurance to constitute health and
accident coverage. Tatum, supra; United States Fidelity,
supra.
Therefore, as the Court of Appeals dissent observed,
the central question under our case law is not whether
an insurance company actually provided the coverage,
but rather whether the coverage is typically provided by
an insurance company. That approach is consistent
with the statutory text, which refers merely to “cover-
age” and contains no language limiting its application
to commercial insurance policies.
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Here, there is no question that LTD benefits are
typically provided by insurance companies. Indeed, the
Court of Appeals held in Rettig that LTD benefits fall
within the statutory term. The fact that the coverage
here was funded by employer and payroll contributions,
rather than by a separate insurance company, does not
alter the fact that this type of coverage is typically
provided by insurance companies. We thus perceive no
basis to preclude coordination with a self-funded plan.
Moreover, the view that a self-funded long-term
disability plan is not “other health and accident cov-
erage” disregards case law allowing coordination with
self-funded medical plans under § 3109a. See, e.g.,
Lewis, supra; Michigan Millers Mut Ins Co v West
Michigan Health Care Network, 174 Mich App 196;
435 NW2d 423 (1988); Auto-Owners Ins Co v L acks
Industries, 156 Mich App 837; 402 NW2d 102 (1987).
We discern no principled reason why self-funded long-
term disability plans should be treated differently
from self-funded medical plans, in light of the holding
in Rettig that LTD plans are “other health and acci-
dent coverage.”
Additionally, the courts in Rettig, Lewis, Michigan
Millers Mut, and Lacks Industries manifested an un-
derstanding that causing not only third-party funded
LTD and medical plans, but also self-funded ones, to
qualify as “other health and accident coverage” is
consistent with the Legislature’s overarching commit-
ment in the no-fault act, and its later amendments, to
facilitating reasonable economies in the payments of
benefits, thus causing the costs of this mandatory auto
insurance to be more affordable. See State Farm Fire &
Cas Co v Old Republic Ins Co, 466 Mich 142, 151; 644
NW2d 715 (2002); Cruz v State Farm Mut Automobile
Ins Co, 466 Mich 588, 597 n 13; 648 NW2d 591 (2002);
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O’Donnell v State Farm Mut Automobile Ins Co, 404
Mich 524; 273 NW2d 829 (1979).
Also, the Court of Appeals has treated self-insurance
as a form of insurance in other contexts. For example, in
Allstate Ins Co v Elassal, 203 Mich App 548; 512 NW2d
856 (1994), the Court of Appeals recognized that self-
insurance, as certified by the Secretary of State, is the
functional equivalent of a commercial no-fault insur-
ance policy. While the Court relied in part on provisions
of the no-fault act, MCL 500.3101 et seq., and the
financial responsibility act, MCL 257.501 et seq., it also
discussed the “common understanding of insurance”:
The term insurance can be defined... as a contract
between two parties for indemnification. Black’s Law Dic-
tionary (4th ed), p 943. However, definitions of insurance
also include: “coverage by contract whereby one party
undertakes to indemnify or guarantee another against loss
by a specified contingency or peril,” Webster’s Seventh New
Collegiate Dictionary (1970), p 439 (definition 2b), see also
Random House Webster’s College Dictionary (1991), p 699
(definition 2); “the sum for which something is insured,”
Webster’s Seventh New Collegiate Dictionary, supra, p 439
(definition 2c); and “any means of guaranteeing against
loss or harm,” Random House Webster’s, supra, p 699
(definition 6). In this case, Enterprise was certified as
self-insured, meaning, for purposes of the no-fault and
financial responsibility acts, that it had indemnified itself
to satisfy judgments against it. [Elassal, supra at 555.]
We do not suggest that the holding in Elassal is
directly relevant, because we are concerned here not
with a self-insured no-fault plan, but rather with a
self-funded LTD plan that a no-fault insurer seeks to
coordinate with its no-fault policy. We simply observe
that the reasoning in Elassal suggests that even if
§ 3109a referred to “insurance” and not (as it does) to
“coverage,” a strong argument would still exist that a
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self-funded LTD plan constitutes “insurance” under the
common understanding of that term.
Further, we reject the Court of Appeals majority’s
view—derived from the holding in Spencer—that the
existence of a collective bargaining agreement somehow
negates the existence of “other health and accident
coverage.” The text of § 3109a refers to health and
accident coverage—the central question is whether
other coverage exists, not how it came to exist. It is
simply not relevant under the statutory text whether
the coverage arose from a collective bargaining agree-
ment.
Next, we address the Spencer Court’s reliance on
language in the UMVARA, the model act on which our
no-fault act was based. The Spencer Court observed
that the UMVARA contained the following provision:
“(b) [B]asic reparation insurers may offer the following
additional exclusions...
***
“(2) [Exclusions], in calculation of net loss, of any of
those amounts and kinds of loss otherwise compensated by
benefits or advantages a person receives or is uncondition-
ally entitled to receive from any other specified source, if
the other source has been approved specifically or as to
type of source by the [commissioner] of insurance by rule
or order adopted upon a determination by the [commis-
sioner] (i) that the other source or type of source is reliable
and that approval of it is consonant with the purposes of
this Act, and (ii) if the other source is a contract of
insurance, that it provides benefits for accidental injuries
generally and in amounts as [sic] least as great for other
injuries as for injuries resulting from motor vehicle acci-
dents.” [Spencer, supra at 399, quoting 14 ULA Civil
Procedural and Remedial Laws, UMVARA, § 14(b)(2), pp
82-83.]
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The Spencer Court also extracted an official com-
ment to the model provision: “ ‘The cost reductions
may be significant, however, in the case of an insurer
offering to sell basic reparation policies to the employ-
ees of a large employer, who have defined, generous
wage-continuation and accident and health benefits
under a common employer-furnished or trade union
plan.’ ” Spencer, supra at 399-400, quoting official
comments to § 14(b)(2), supra, p 85.
The Spencer Court then reasoned that “it is clear
from the comments that, under the UMVARA, wage
continuation benefits pursuant to a union agreement
were intended to be coordinated with no-fault benefits
otherwise payable.” Spencer, supra at 400. The Court
then asserted that because the Legislature did not
adopt “the broader language of the uniform act,” it “did
not intend for no-fault benefits to be coordinated with a
broad array of other benefits which may perhaps be
equally duplicative.” Id.
We emphasize that a court’s fundamental interpre-
tive obligation is to discern the legislative intent that
may reasonably be inferred from the words expressed in
the statute. Koontz v Ameritech Services, Inc, 466 Mich
304, 312; 645 NW2d 34 (2002). Where the Legislature
has unambiguously conveyed its intent in a statute,
judicial construction is not permitted. Because the
proper role of the judiciary is to interpret, not write, the
law, courts lack authority to venture beyond the unam-
biguous statutory text. Id.
The Spencer Court relied on the proposition that
where the Legislature does not adopt a model provision,
it presumably rejected the proposed language. Spencer,
supra at 399, citing Michigan Mut Ins Co v Carson City
Texaco, Inc, 421 Mich 144; 365 NW2d 89 (1984). The
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Spencer Court failed, however, to adequately explain
why this principle supported its holding.
The Legislature’s deviation from the language in a
model act does not grant a court license to simply
assert, without any reasoning, that (1) the statute is
narrower than the model provision, and (2) the statute
must therefore produce a different outcome than the
model provision would generate. Such conclusions do
not follow ineluctably from the Legislature’s rejection
of particular language in a model provision.
It is, of course, possible that the Legislature rejected
a model provision because it did not wish to enact the
provision into law. Other inferences may arise, however.
For example, our Legislature might simply have found a
better way than the drafters of the model provision to
express the same proposition. Perhaps our Legislature
used a synonym or more succinct language to state
whatever the drafters of the model provision had at-
tempted to say. Or the Legislature might have con-
cluded that another statutory provision in Michigan
rendered the model provision unnecessary. Thus, the
mere fact that a statute is written differently from a
model act does not always compel the conclusion that
our statute is written more narrowly.
But even if a statute is written more narrowly than a
model provision, a court’s analysis does not end there.
Even a statute that is written narrowly could apply to
the particular case before the court. A statutory provi-
sion that provides for coordination, but in fewer circum-
stances than a model provision, will still allow coordi-
nation in some circumstances. Otherwise, the statutory
provision would never allow coordination and would be
essentially nugatory. Courts must give effect to every
word, phrase, and clause in a statute, and must avoid an
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interpretation that would render any part of the statute
surplusage or nugatory. Koontz, supra at 312.
Thus, even if the Spencer Court had supported its
assertion that § 3109a is written more narrowly than
the model provision, the question would remain
whether the statute allowed coordination in the circum-
stances at issue in that case. Merely asserting, as the
Court did in Spencer, that a statute is narrow does not,
by itself, resolve whether the statute applies to a given
case.
A court may not simply announce that the text of a
statute differs from the language in a model act (or, as
in Spencer,acomment to the model act) as an excuse to
avoid the court’s duty to interpret the statutory text
adopted by the Legislature. The Spencer Court did not
analyze the language of § 3109a. The Court failed to
explain why the benefits at issue did not fall within the
plain meaning of the term “other health and accident
coverage.” The Court also did not explain how the
statutory phrase is not only narrower than the model
language, but too narrow to allow coordination in that
case.
Here, it is simply unnecessary to decide whether the
model provision is broader than the statute. We con-
clude that § 3109a allows coordination in this case,
regardless of whether it is broader or narrower than the
model provision. As discussed, we agree with the Court
of Appeals dissent that the statutory phrase, “other
health and accident coverage,” plainly includes defen-
dant’s self-funded long-term disability plan. We discern
no textual basis to limit the phrase “other health and
accident coverage” to commercial insurance policies.
Section 3109a contains no such limitation, and we
believe the phrase “other health and accident coverage”
includes self-funded plans.
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Therefore, regardless of how broadly the model pro-
vision might reach, the text of § 3109a plainly allows
coordination of no-fault benefits with a self-funded
long-term disability plan.
6
We overrule Spencer to the
extent that it is inconsistent with this opinion.
IV. CONCLUSION
We conclude that the phrase “other health and acci-
dent coverage” in § 3109a includes a self-funded long-
term disability plan, and that defendant may therefore
coordinate its no-fault wage loss payments with plain-
tiff’s LTD benefits. We thus reverse the judgment of the
Court of Appeals and remand the matter to the trial
court for entry of an order granting summary disposi-
tion for defendant.
T
AYLOR,
C.J., and W
EAVER,
Y
OUNG,
and M
ARKMAN,
JJ.,
concurred with C
ORRIGAN
,J.
C
AVANAGH,
J. (dissenting). In this no-fault case, I
would conclude that the long-term disability (LTD) plan
covering plaintiff does not constitute “other health and
accident coverage” subject to coordination under MCL
500.3109a. I am not convinced that the dichotomy set
6
Our dissenting colleague analyzes the model provision that the
Legislature did not adopt. We again emphasize that a court’s fundamen-
tal interpretive obligation is to discern the legislative intent that may
reasonably be inferred from the words expressed in the statute. Koontz,
supra, p 312. Where the Legislature has unambiguously conveyed its
intent in the statutory text, judicial construction is not permitted. Id.We
have examined the statutory text and concluded that the phrase used by
our Legislature, “other health and accident coverage,” is sufficiently
broad to include a self-funded LTD plan. Because we are satisfied that the
words adopted by our Legislature are sufficiently clear to resolve this
question, we simply have no occasion to resort to the method of judicial
construction utilized by the Spencer Court and advocated by the dissent
in this case.
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forth by Spencer v Hartford Accident & Indemnity Co,
179 Mich App 389; 445 NW2d 520 (1989), and Rettig v
Hastings Mut Ins Co, 196 Mich App 329; 492 NW2d 526
(1992), is inconsistent with the Legislature’s intent.
Moreover, I would not decide this jurisprudentially
significant issue without the benefit of full briefing and
oral argument. Accordingly, I must respectfully dissent.
I. FACTUAL BACKGROUND
Plaintiff worked for the Michigan Department of
Corrections. Under his collective bargaining agreement,
plaintiff was allowed to participate in the LTD plan.
The LTD plan was administered by a private insurance
company; however, the plan was self-funded through
payroll deductions and employer contributions. While
still employed by the Department of Corrections, plain-
tiff was injured in an automobile accident. Plaintiff
began receiving benefits under the LTD plan, and
defendant, plaintiff’s no-fault insurer, coordinated the
LTD benefits with the no-fault work-loss benefits. De-
fendant maintained that the setoff was permissible
under MCL 500.3109a. Plaintiff filed this action to
challenge the setoff, and the parties filed cross-motions
for summary disposition. The trial court granted sum-
mary disposition in favor of plaintiff, and the Court of
Appeals affirmed.
II. LEGAL BACKGROUND
A. MCL 500.3109a
MCL 500.3109a provides:
An insurer providing personal protection insurance ben-
efits shall offer, at appropriately reduced premium rates,
deductibles and exclusions reasonably related to other
health and accident coverage on the insured. The deduct-
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ibles and exclusions required to be offered by this section
shall be subject to prior approval by the commissioner and
shall apply only to benefits payable to the person named in
the policy, the spouse of the insured and any relative of
either domiciled in the same household.
B. SPENCER v HARTFORD ACCIDENT & INDEMNITY CO
In Spencer, supra, the plaintiff was injured during
the course of his employment and was unable to return
to work. After the accident, the plaintiff received work-
er’s compensation benefits. Additionally, under the
terms of a collective bargaining agreement between the
plaintiff’s union and his employer, the plaintiff received
the difference between his worker’s compensation ben-
efits and his base rate of pay. The defendant insurance
company denied liability for no-fault work-loss benefits,
claiming, among other things, that the wage continua-
tion benefits were subject to setoff pursuant to MCL
500.3109a.
The Spencer panel noted that the “purpose of § 3109a
is to reduce the cost of no-fault insurance by allowing
insurers to offer policies that coordinate benefits with
other similar coverages in return for charging a statu-
torily mandated reduced premium.” Spencer, supra at
396. The Court of Appeals reasoned that § 3109a ex-
pressly limits setoff to health and accident coverage on
the insured and, therefore, the issue was whether the
additional wages the plaintiff received pursuant to a
collective bargaining agreement constituted “other
health and accident coverage” under § 3109a. The
Court of Appeals held that the Legislature did not
intend for § 3109a to apply to the type of benefits the
plaintiff received.
After detailing this Court’s decision in LeBlanc v
State Farm Mut Automobile Ins Co, 410 Mich 173; 301
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NW2d 775 (1981), as well as its own decision in Orr v
DAIIE, 90 Mich App 687; 282 NW2d 177 (1979), the
Court of Appeals noted that the scope of coverages
within the meaning of “other health and accident
coverage” had been subsequently expanded. However,
“the cases so doing have generally been limited to
benefits corresponding to typical health insurance
plans.” Spencer, supra at 398. In light of these deci-
sions, and the absence of a clear construction of the
phrase “other health and accident coverage,” the Court
of Appeals observed:
It is also helpful when construing provisions of the
Michigan no-fault insurance act to look to the Uniform
Motor Vehicle Accident Reparations Act (UMVARA). The
UMVARA is one of the model acts which was utilized as
source material in the drafting of the no-fault act. Citizens
Ins Co of America v Tuttle, 411 Mich 536; 309 NW2d 174
(1981). Thus, where a provision of the no-fault act is
virtually identical to a provision of the UMVARA, the
UMVARA will be looked to for guidance in construing a
provision of the no-fault act. See MacDonald v State Farm
Mutual Ins Co, 419 Mich 146; 350 NW2d 233 (1984).
However, where there is an absence of a comparable
provision in the Michigan act, it is presumed the Legisla-
ture considered but rejected the proposed language in the
uniform act. See Michigan Mutual Ins Co v Carson City
Texaco, Inc, 421 Mich 144; 365 NW2d 89 (1984). [Id.at
398-399.]
The Spencer Court then examined the language and
official comments of the counterpart of § 3109a in the
model act, 14 ULA Civil Procedural and Remedial
Laws, UMVARA, § 14(b)(2). Notably, the Court of Ap-
peals quoted the official comments to § 14(b)(2):
“The cost reductions may be significant, however, in the
case of an insurer offering to sell basic reparation policies
to the employees of a large employer, who have defined,
generous wage-continuation and accident and health ben-
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efits under a common employer-furnished or trade union
plan.” [Spencer, supra at 399-400.]
In light of the differences between Michigan’s no-
fault act and the model act, the Court of Appeals
reasoned:
Thus, it is clear from the comments that, under the
UMVARA, wage continuation benefits pursuant to a union
agreement were intended to be coordinated with no-fault
benefits otherwise payable. Instead of adopting the broader
language of the uniform act, however, the Michigan act was
drafted much more narrowly, and limited coordination to
“other health and accident coverage.” It appears, therefore,
that in enacting the Michigan act the Legislature did not
intend for no-fault benefits to be coordinated with a broad
array of other benefits which may perhaps be equally
duplicative. [Id. at 400.]
Thus, the Court of Appeals in Spencer held that the
plaintiff’s wage continuation benefits pursuant to a
collective bargaining agreement did not constitute
“other health and accident coverage” within the mean-
ing of § 3109a.
C. RETTIG v HASTINGS MUT INS CO
In Rettig, supra, the Court of Appeals was again
called upon to interpret § 3109a. The plaintiff in Rettig
was injured in an automobile accident. At the time of
the accident, the plaintiff was insured by the defendant
under a no-fault insurance policy that contained a
coordinated-benefits provision. The plaintiff also had
an LTD plan issued by a different insurance company
and made available to the plaintiff by her employer. The
LTD plan was paid for by the plaintiff through payroll
deductions. Notably, the plaintiff was employed as a
supervisor and was not covered under a collective
bargaining agreement. The trial court held that the
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defendant was entitled to a setoff under § 3109a because
the plaintiff’s LTD plan constituted “other health and
accident coverage” under § 3109a, and the Court of
Appeals affirmed.
The Rettig Court, similar to the Spencer Court, ob-
served that “[w]hile the scope of coverage included
within the meaning of ‘other health and accident cover-
age’... has expanded since LeBlanc, it has generally
been limited to benefits typically associated with health
insurance plans.” Rettig, supra at 333. Accordingly, the
Court of Appeals concluded that the LTD benefits re-
ceived by the plaintiff fell within the purview of § 3109a
“because they constitute protection typically provided by
health insurance plans, which include payments for
medical expenses resulting from an accident as well as
wage-loss replacement benefits.” Rettig, supra at 333.
Importantly, the Court of Appeals reasoned that its
holding did not conflict with Spencer. The panel in
Rettig observed that the plaintiff in Spencer received
wages directly from his employer pursuant to a collec-
tive bargaining agreement. The Court of Appeals fur-
ther noted:
There, this Court observed that under the Uniform
Motor Vehicle Accident Reparations Act, wage continuation
benefits pursuant to a union agreement were intended to be
coordinated with no-fault benefits, but that the Michigan
version of the uniform act contained more restrictive lan-
guage and limited coordination of benefits to insurance
coverage. In contrast to Spencer, the long-term disability
benefits in this case were provided to plaintiff by Reliance
Standard Life Insurance Company pursuant to an insurance
policy, not a collective bargaining agreement. [Id.]
III. THE COURT OF APPEALS DECISION IN THIS CASE
Here, the Court of Appeals, in an unpublished two-
to-one decision, concluded that this case “is more like
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Spencer than Rettig.” Unpublished opinion per curiam,
issued January 27, 2004 (Docket No. 245068). The
majority reasoned that, like the plaintiff in Spencer,
this “plaintiff received wage loss benefits from his
employer through a formal wage continuation plan
pursuant to a collective bargaining agreement. Consis-
tent with established precedent, we agree with the trial
court and conclude that those wage continuation ben-
efits are not ‘other health and accident coverage’ within
the contemplation of MCL 500.3109a.”
Judge Z
AHRA
dissented, concluding that defendant
was entitled to a setoff for the LTD wage-loss benefits
because this case was more like Rettig than like
Spencer. Unlike the benefits in Spencer, Judge Z
AHRA
opined, the LTD benefits in this case were not paid
directly by the employer; rather, the plan was self-
funded through accumulated payroll deductions. Ac-
cordingly, the Court of Appeals dissent found Rettig
controlling because the LTD benefits plaintiff received
constituted protection typically provided by health
insurance plans. Moreover, Judge Z
AHRA
reasoned that
the notion that plaintiff’s LTD benefits were not
actually provided by an insurance company was not
dispositive.
IV. DISCUSSION
I agree with the majority that the case law is suffi-
ciently “muddled” regarding the precise meaning of
“other health and accident coverage.” Moreover, I agree
with the majority that the great weight of the case law
suggests that the key question for § 3109a purposes is
whether the coverage is typically provided by an insur-
ance company. I disagree, however, with the majority’s
decision to peremptorily overrule Spencer, supra. More-
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over, I disagree with the majority’s decision to decide
this case without the benefit of full oral argument and
briefing.
In light of Spencer’s thoughtful analysis, I do not
believe that the legislative distinction noted by the
Court of Appeals is accidental. Even if the term
“coverage” is interpreted broadly, there is a difference
between a self-funded, noninsurance LTD plan pursu-
ant to a collective bargaining agreement and a so-
called typical insurance plan for purposes of the no-
fault act. Moreover, I am persuaded by Spencer’s
rationale that the Legislature intended this difference
to be dispositive when it refused to incorporate the
broader UMVARA provision into our no-fault act.
Accordingly, if a person falls in the Spencer box, such
as this plaintiff, then setoff is not permitted under
§ 3109a. However, if a person falls within the Rettig
box, then setoff is permitted. As noted by the trial
court, this dichotomy is not as arbitrary as it appears.
1
Thus, because I am not convinced that Spencer was
wrongly decided, and because plaintiff falls within the
Spencer box, I would affirm the Court of Appeals
decision.
1
In granting plaintiff’s motion for summary disposition, the trial court
stated:
I am persuaded that at this time case law does clearly hold that
the legislature intended section 3109a only to apply to wage
continuation benefits which are funded by insurance as opposed to
wage continuation benefits which are self-funded. That is not as
arbitrary as it at first may sound, because I agree with the
Defendant that there’s a clear legislative policy behind the statute,
and that to trade—or mandate, I should say, the trading of a class
of lower premium insurance policies in return for the acceptance
by the consumer of coordination of benefits, not in this fact
situation we’re not talking about a consumer buying an insurance
policy. We’re talking about a consumer being part of a bargaining
unit which collectively bargained a self-funded, non-insurance
funded wage continuation benefit.
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The majority concludes that Spencer was erroneously
decided because “[i]t is simply not relevant under the
statutory text whether the coverage arose from a col-
lective bargaining agreement.” Ante at 220. Rather,
“[t]he text of § 3109a refers to health and accident
coverage–the central question is whether other cover-
age exists, not how it came to exist.” Id. (emphasis in
original). The majority then criticizes the Spencer
Court for examining the language of the model act on
which our no-fault act was based and for venturing
beyond the text of the statute. Stated differently, the
majority criticizes the Spencer Court for evaluating the
“muddled” case law construing the text of the statute,
for examining the model act on which our no-fault act
was based, and for not ignoring the elephant standing
in the corner once the panel reasonably concluded that
there is a glaring difference between the two acts.
This Court, however, has previously acknowledged
that it is entirely appropriate, if not prudent, to exam-
ine a model act on which a Michigan statutory scheme
was based when attempting to discern the Legislature’s
intent. See, e.g., Donajkowski v Alpena Power Co, 460
Mich 243, 256 n 14; 596 NW2d 574 (1999) (“The fact
that our Legislature did not include this restriction in
adopting its version of the model contribution act is
significant to any good-faith effort to give meaning to
the Legislature’s intent.”). Here, the UMVARA “clearly
was ‘one of the model acts utilized as source material in
the drafting of the no-fault act....’”Marquis v Hart-
ford Accident & Indemnity (After Remand), 444 Mich
638, 652 n 17; 513 NW2d 799 (1994), quoting Tuttle,
supra at 546. And § 3109a was plainly based on
§ 14(b)(2) of the UMVARA. See Spencer, supra. More-
over, this Court has held that “where the statutory
language differs from the UMVARA model, courts can
presume that the Legislature considered the model act
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and rejected it.” Marquis, supra at 652 n 17. Thus, in
my view, the Spencer panel properly consulted the
model act’s language and official comments when mak-
ing its decision. See, e.g., Ouellette v Kenealy, 424 Mich
83, 86-87; 378 NW2d 470 (1985).
Even though the majority claims that the UMVARA
should not have been examined, the majority nonethe-
less travels beyond the text of the statute in an attempt
to explain away the Legislature’s deviation from the
language in the model act and, at the same time, further
undermine the Spencer Court’s ultimate conclusion.
For example, the majority posits that the Legislature
may not have included the language from § 14(b)(2) of
the model act because “our Legislature might simply
have found a better way than the drafters of the model
provision to express the same protection.” Ante at 222.
The majority further surmises, “[p]erhaps our Legisla-
ture used a synonym or more succinct language to state
whatever the drafters of the model provision had at-
tempted to say.” Id. Without citing any particular
provision, the majority also hypothesizes that “the
Legislature might have concluded that another statu-
tory provision in Michigan rendered the model provi-
sion unnecessary.” Id. The majority poses these ques-
tions in an effort to discount the Spencer Court’s
conclusion that § 3109a is more narrow than the model
act.
In my view, however, the majority’s attempts only
solidify the conclusion reached in Spencer. Again, this
Court has held that “where the statutory language
differs from the UMVARA model, courts can presume
that the Legislature considered the model act and
rejected it.” Marquis, supra at 652 n 17. Accordingly,
Spencer’s position that the Legislature rejected the
applicable portion of the UMVARA in favor of a more
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narrow provision is more defensible than the majority’s
translucent attempts to explain away the deviation and
further muddy the waters. I believe that the Spencer
Court adequately explained that because the Legislature
rejected one portion of § 14 of the UMVARA, the Michi-
gan statute is “narrower” (i.e., it does not contain the
rejected portion of § 14). Moreover, I believe that under
these circumstances—where § 14 of the UMVARA differs
from § 3109a, and a self-funded noninsurance LTD plan
under a collective bargaining agreement is implicated—
the Michigan statute produces a different result.
Further, the majority explains that “even if a statute
is written more narrowly than a model provision, a
court’s analysis does not end there” because even the
narrow statute could apply to the facts of a given case.
Ante at 222 (emphasis in original). Thus, even if Spencer
were supportable, the majority claims that a court can-
not merely assert that the statute is narrow and conclude
that it does not apply. The majority simply dismisses the
Spencer Court’s analysis as incomplete.
In my view, Spencer’s rationale is plainly support-
able. The primary goal of statutory interpretation is to
discern the Legislature’s intent. To this end, the Court
of Appeals examined the relevant statutory language
and the “muddled” case law that construed this lan-
guage, consulted the source of the statutory provision,
found a difference between the model act and the
statutory provision, and reasonably concluded that the
Legislature rejected this portion of the model act and
intended that wage continuation benefits pursuant to a
collective bargaining agreement should not constitute
“other health and accident coverage” within the mean-
ing of § 3109a. I do not believe that Spencer’s approach
was incomplete. Indeed, I believe the approach was
prudent and supported by our case law. When compared
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with the majority’s approach, I prefer Spencer’s ap-
proach under these circumstances because it best effec-
tuates, rather than ignores, the Legislature’s apparent
intent.
Finally, I would be remiss if I did not point out that
neither the parties nor the lower courts in this case
questioned the validity of Spencer’s rationale. R ather,
defendant and the Court of Appeals dissent simply
argued that this case was more like Rettig than Spen-
cer. Because the majority has seen fit to take aim at
Spencer, the parties never specifically briefed this
issue, and, arguably, this result was not clearly fore-
shadowed, I would have preferred to grant leave to
appeal to have the benefit of full briefing and oral
argument on this particular issue. As shown by the
majority and dissenting opinions, the ongoing validity
of Spencer is a jurisprudentially significant issue that
could have wide implications. Thus, even though I
believe at this point that Spencer was properly decided,
I would prefer to grant leave and actually hear what
the parties have to say on this particular issue.
V. CONCLUSION
I would conclude that Spencer was correctly decided
and, therefore, would hold that the LTD plan covering
this plaintiff is not subject to setoff under § 3109a.
Accordingly, I would affirm the decision of the Court of
Appeals. However, because Spencer’s viability is juris-
prudentially significant and the parties did not specifi-
cally brief this issue, I would prefer to grant leave to
appeal to have the benefit of full briefing and oral
argument on whether Spencer was properly decided.
Thus, I must respectfully dissent.
K
ELLY
, J., concurred with C
AVANAGH
,J.
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CAIN v WASTE MANAGEMENT, INC (AFTER REMAND)
Docket Nos. 125111, 125180. Argued November 9, 2004 (Calendar No. 3).
Decided May 3, 2005.
Scott M. Cain brought a claim for worker’s compensation benefits
against his employer, Waste Management, Inc., and its insurer,
claiming total and permanent disability as a result of the ampu-
tation of his right leg and the loss of the use of his left leg following
injuries suffered in the course of his employment. A magistrate
granted total and permanent disability benefits, finding that the
plaintiff had lost the industrial use of both legs. The Worker’s
Compensation Appellate Commission (WCAC) reversed, holding
that the magistrate erred in failing to use a “corrected” standard
in assessing the usefulness of the left leg. The Court of Appeals,
F
ITZGERALD
,P.J., and S
AAD
and W
HITBECK
, JJ., affirmed in part and
reversed in part in an unpublished opinion per curiam, issued
May 2, 2000 (Docket No. 214445), holding that the WCAC had
exceeded its authority in applying the corrected test. The Supreme
Court reversed in part the judgment of the Court of Appeals and
remanded the matter to the WCAC to consider the plaintiff’s
specific loss claim, holding that total and permanent disability is
not demonstrated where the proofs indicate that a braced limb is
functional and can support industrial use and that, in evaluating a
claim under MCL 418.361(3)(g), the corrected standard should be
applied. 465 Mich 509 (2002). On remand, the WCAC concluded
that there was competent, material, and substantial evidence to
support the magistrate’s finding that the plaintiff had sustained
the “specific loss” of his left leg under MCL 418.361(2)(k) and that,
having shown the specific loss of each leg, the plaintiff is entitled
to total and permanent disability benefits. The employer and its
insurer appealed to the Court of Appeals by leave granted, and the
Second Injury Fund appealed by leave granted from the same
order. The appeals were consolidated. The Court of Appeals,
C
OOPER
,P.J., and F
ITZGERALD
,J.(K
ELLY
, J., concurring in part and
dissenting in part), affirmed, holding that the WCAC properly
affirmed the magistrate’s determination that the plaintiff suffered
a specific loss of his left leg, under MCL 418.361(2)(k), where the
plaintiff lost the industrial use of his left leg in its uncorrected
state. The WCAC properly awarded the plaintiff total and perma-
236 472 M
ICH
236 [May
nent disability benefits under MCL 418.361(3)(b) for his specific
(anatomical) loss of his right leg and the specific (industrial) loss of
his left leg. 259 Mich App 350 (2003). The Supreme Court granted
applications for leave to appeal by Waste Management and the
Second Injury Fund and ordered the appeals to be argued and
submitted together. 470 Mich 870 (2004).
In an opinion by Chief Justice T
AYLOR
, joined by Justices
C
AVANAGH,
C
ORRIGAN,
Y
OUNG
, and M
ARKMAN
, the Supreme Court,
after remand, held:
Specific loss benefits under MCL 418.361(2) do not require
amputation. It is sufficient to qualify for such benefits if the limb
or body part has lost its usefulness. With regard to total and
permanent disability benefits under § 361(3)(b), which covers the
loss of both legs, as with specific loss, if the legs have lost their
usefulness, even though not amputated, the worker qualifies for
total and permanent disability benefits.
1. The original understanding the word “loss” carried when
the act was enacted was its plain and ordinary meaning, consis-
tent with how it had been construed in the context of insurance
law. Thus, “loss” includes not only amputation but also loss of
usefulness. The original meaning of the word “loss” in the
specific loss provisions does not require severance. There can be
a loss where the claimant suffers the loss of usefulness of the
member.
2. The Worker’s Compensation Appellate Commission prop-
erly applied the “uncorrected” standard. It is proper to apply the
uncorrected standard to specific loss claims.
3. The appellate commission’s finding that the damage to the
plaintiff’s left leg “equated with anatomical loss and that the limb
retains no substantial utility” is, in essence, that he lost the
usefulness of the leg. Because that factual finding is supported by
competent evidence, it must be affirmed. The Court of Appeals
erred when it grafted a loss of industrial use standard onto the
factual findings of the commission. Nonetheless, it reached the
correct result with regard to the plaintiff’s benefit eligibility. The
plaintiff is eligible for specific loss benefits for the loss of his left
leg.
4. The proper construction of the word “loss” in § 361(3)(b) is
that it has the same meaning given it in § 361(2). The corrected
standard does not apply to § 361(3)(b), unlike § 361(3)(g). Benefits
are payable under § 361(3)(b) not only when there is anatomical
loss but also when the limbs have no practical usefulness. Section
361(3)(g), with its reference to permanent and total loss of
industrial use, calls the fact-finder to look to wage-earning capac-
ity and the injured worker’s ability to function in industry. These
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words demand something distinct from the simple inquiry under
§ 361(3)(b) of whether the legs or feet have been amputated or
have no practical usefulness. Sections 361(3)(b) and 361(3)(g)
cover different things.
5. The corrected standard does not apply to § 361(3)(b),
unlike § 361(3)(g). Section 361(3)(g), with its utilization of per-
manent and total loss language, compels a conclusion that if the
condition is correctable, it is not permanent and total. There is no
permanent and total language in § 361(3)(b) and the requirement
of looking to correctability is absent from § 361(3)(b).
6. The plaintiff has suffered the loss of his amputated right leg
and, as found by the appellate commission, his left leg has no
practical usefulness. Thus, he has suffered a loss of both legs and
falls within § 361(3)(b), qualifying for an award of total and
permanent disability benefits under § 361(3)(b).
7. The plaintiff has suffered the specific loss of his left leg
under § 361(2) and qualifies for an award of total and permanent
disability benefits under MCL 418.361(3)(b). The decisions of the
Court of Appeals and the appellate commission must be affirmed.
Justice W
EAVER
, joined by Justice K
ELLY
, concurring, stated that
the word “loss,” as used in both MCL 418.361(2)(k) and MCL
418.361(3)(b), includes not only amputation but also situations in
which there is a loss of the usefulness of the limb or member. There
is sufficient evidence to support the appellate commission’s factual
finding that the plaintiff lost the usefulness of his left leg and is
entitled to specific loss benefits for the loss of his left leg under
§ 361(2)(k). The plaintiff has suffered the loss of both legs under
§ 361(3)(b) because his right leg has been amputated and he has lost
the usefulness of his left leg. Consequently, he is entitled to total and
permanent disability benefits under § 361(3)(b). The decisions of
the appellate commission and the Court of Appeals should be
affirmed.
Affirmed.
1. W
ORKER
’
S
C
OMPENSATION —
S
PECIFIC
L
OSS —
T
OTAL AND
P
ERMANENT
D
ISABIL-
ITY —
L
EGS —
A
MPUTATIONS
.
Specific loss benefits under MCL 418.361(2) do not require amputa-
tion and may be awarded where the limb or body part has lost its
usefulness; total and permanent disability benefits under MCL
418.361(3)(b) are proper where both legs have lost their useful-
ness, even though they have not been amputated.
2. W
ORKER
’
S
C
OMPENSATION —
W
ORDS AND
P
HRASES —
L
OSS
.
The word “loss,” as used in a provision of the worker’s compensation
act relating to total and permanent disability arising out of the loss
238 472 M
ICH
236 [May
of both legs, has the same meaning it has in another provision of
the act relating to the specific loss of a leg (MCL 418.361[2],
418.361[3][b]).
3. W
ORKER
’
S
C
OMPENSATION —
T
OTAL AND
P
ERMANENT
D
ISABILITY —
C
ORRECTED
S
TANDARD OF
L
OSS
.
The “corrected” standard does not apply to a determination of
whether a worker qualifies for total and permanent disability
benefits for the loss of both legs, but does apply to a determination
of qualification for total and permanent disability benefits for the
permanent and total loss of the industrial use of both legs (MCL
418.361[3][b], [g]).
Pinsky, Smith, Fayette & Hulswit, LLP (by Edward
M. Smith and Pamela K. Bratt), for the plaintiff.
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, Ray W. Cardew, Jr., Assistant Attor-
ney General, and Gerald M. Marcinkoski, Special Assis-
tant Attorney General, for the Second Injury Fund.
Straub, Seaman & Allen, P.C. (by Daniel W. Grow and
James M. Straub), for Waste Management, Inc., and
Transportation Insurance Company.
Amici Curiae:
Martin L. Critchell for Ford Motor Company.
Daryl Royal for Michigan Trial Lawyers Association.
AFTER REMAND
T
AYLOR,
C.J. At issue in this worker’s compensation
case is whether a worker must suffer an actual ampu-
tation of a limb or body part in order to qualify for
either specific loss benefits (also described as scheduled
loss benefits) or total and permanent disability benefits.
We hold that specific loss benefits under MCL
418.361(2) do not require an amputation. It is sufficient
to qualify for such benefits if the limb or body part has
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lost its usefulness. Regarding total and permanent
disability benefits under MCL 418.361(3)(b), which
covers the loss of both legs, as with specific loss, if the
legs have lost their usefulness, even though not ampu-
tated, the worker qualifies for total and permanent
disability benefits. We therefore affirm the decisions of
the Court of Appeals and the Worker’s Compensation
Appellate Commission (WCAC).
BACKGROUND
This case was previously before us in Cain v Waste
Mgt, Inc, 465 Mich 509, 513; 638 NW2d 98 (2002) (Cain
I), where we summarized the facts describing plaintiff’s
injuries as follows:
Plaintiff Scott M. Cain worked as a truck driver and
trash collector for defendant, Waste Management, Inc. In
October 1988, as he was standing behind his vehicle
emptying a rubbish container, he was struck by an auto-
mobile that crashed into the back of the truck. Mr. Cain’s
legs were crushed. Physicians amputated Mr. Cain’s right
leg above the knee. His left leg was saved with extensive
surgery and bracing.
In February 1990, Mr. Cain was fitted with a right leg
prosthesis, and he was able to begin walking. He returned
to his employment at Waste Management and started
performing clerical duties.
Mr. Cain’s left leg continued to deteriorate. In October
1990, he suffered a distal tibia fracture. Doctors diagnosed
it as a stress fracture caused by preexisting weakness from
the injury sustained in the accident. After extensive physi-
cal therapy and further surgery on his left knee, Mr. Cain
was able to return to Waste Management in August 1991,
first working as a dispatcher and then in the sales depart-
ment.
Waste Management voluntarily paid Mr. Cain 215 weeks
of worker’s compensation benefits for the specific loss of
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ICH
236 [May
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his right leg. MCL 418.361(2)(k). However, there was
disagreement concerning whether he was entitled to addi-
tional benefits.
To understand the benefits that are at issue, it is
necessary to review several sections of the Worker’s
Disability Compensation Act (WDCA), MCL 418.101 et
seq. Specific loss benefits are payable under MCL
418.361(2)(k) to an employee “for the loss of” a leg.
1
1
The full text of MCL 418.361(2) reads:
In cases included in the following schedule, the disability in
each case shall be considered to continue for the period specified,
and the compensation paid for the personal injury shall be 80% of
the after-tax average weekly wage subject to the maximum and
minimum rates of compensation under this act for the loss of the
following:
(a) Thumb, 65 weeks.
(b) First finger, 38 weeks.
(c) Second finger, 33 weeks.
(d) Third finger, 22 weeks.
(e) Fourth finger, 16 weeks.
The loss of the first phalange of the thumb, or of any finger,
shall be considered to be equal to the loss of
1
/2 of that thumb or
finger, and compensation shall be
1
/2 of the amount above specified.
The loss of more than 1 phalange shall be considered as the loss
of the entire finger or thumb. The amount received for more than
1 finger shall not exceed the amount provided in this schedule for
the loss of a hand.
(f) Great toe, 33 weeks.
(g) A toe other than the great toe, 11 weeks.
The loss of the first phalange of any toe shall be considered to
be equal to the loss of
1
/2 of that toe, and compensation shall be
1
/2
of the amount above specified.
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Total and permanent disability benefits are payable
“[w]hile the incapacity for work resulting from a per-
sonal injury is total,” MCL 418.351(1), and MCL
418.361(3) defines what “total and permanent disabil-
ity” means.
2
Of particular relevance here are two of the
The loss of more than 1 phalange shall be considered as the loss
of the entire toe.
(h) Hand, 215 weeks.
(i) Arm, 269 weeks.
An amputation between the elbow and wrist that is 6 or more
inches below the elbow shall be considered a hand, and an
amputation above that point shall be considered an arm.
(j) Foot, 162 weeks.
(k) Leg, 215 weeks.
An amputation between the knee and foot 7 or more inches
below the tibial table (plateau) shall be considered a foot, and an
amputation above that point shall be considered a leg.
(l) Eye, 162 weeks.
Eighty percent loss of vision of 1 eye shall constitute the total
loss of that eye.
2
The subsection reads in full:
Total and permanent disability, compensation for which is
provided in section 351 means:
(a) Total and permanent loss of sight of both eyes.
(b) Loss of both legs or both feet at or above the ankle.
(c) Loss of both arms or both hands at or above the wrist.
(d) Loss of any 2 of the members or faculties in subdivisions (a),
(b), or (c).
(e) Permanent and complete paralysis of both legs or both arms
or of 1 leg and 1 arm.
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definitions of total and permanent disability found in
MCL 418.361(3)(b), “Loss of both legs or both feet at or
above the ankle,” and MCL 418.361(3)(g), “Permanent
and total loss of industrial use of both legs or both
hands or both arms or 1 leg and 1 arm ....”
In Cain I, we determined that because Mr. Cain had
a brace on his left leg that enabled him to return to
work, he had not lost industrial use of both legs, as
required by MCL 418.361(3)(g).
3
We noted there is a
difference between specific loss and loss of industrial
use, and we “adopt[ed] as our own” the analysis of the
WCAC in its April 1997 opinion. Cain I, supra at 521. In
accord with that analysis, we held that the “corrected”
standard applies to claims for permanent and total loss
of industrial use under MCL 418.361(3)(g), and we
remanded to the WCAC “to consider plaintiff’s specific
loss claim.” Cain I, supra at 524. On remand, the WCAC
determined actual amputation is unnecessary to qualify
for specific loss benefits and, because plaintiff’s leg is
essentially useless, his injury “equated with anatomical
loss.” The WCAC cited as authority Hutsko v Chrysler
Corp, 381 Mich 99; 158 NW2d 874 (1968), and Tew v
Hillsdale Tool & Mfg Co, 142 Mich App 29; 369 NW2d
254 (1985). Both are cases in which specific loss claims
were allowed where there had been a loss of use, but not
an anatomical loss. The WCAC then concluded without
further explanation that “[h]aving shown specific loss
(f) Incurable insanity or imbecility.
(g) Permanent and total loss of industrial use of both legs or
both hands or both arms or 1 leg and 1 arm; for the purpose of this
subdivision such permanency shall be determined not less than 30
days before the expiration of 500 weeks from the date of injury.
3
The reader is directed to Cain I for a full discussion of the procedural
history of the case to that point, including details of the opinions of the
magistrate, the WCAC, and the Court of Appeals.
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of each leg, plaintiff is entitled to total and permanent
disability benefits.” On appeal, the Court of Appeals
majority, citing Pipe v Leese Tool & Die Co, 410 Mich
510; 302 NW2d 526 (1981), affirmed the decision of the
WCAC. 259 Mich App 350; 674 NW2d 383 (2003). It
concluded that each of plaintiff’s legs qualified for
specific loss benefits (one through amputation and one
through lost industrial use), and that these losses, when
considered together, equaled a “loss of both legs” under
MCL 418.361(3)(b), thus entitling plaintiff to total and
permanent disability benefits.
Both the defendant employer and the Second Injury
Fund sought leave to appeal. We granted both applica-
tions for leave, ordering the appeals to be argued and
submitted together. 470 Mich 870 (2004). We directed
the parties in both appeals to include among the issues
to be briefed whether the “loss of industrial use”
standard may be applied to claims of specific loss under
MCL 418.361(2) and whether Pipe, supra, should be
overruled. We further directed the parties in Docket No.
125180 to address the issues whether the WCAC ex-
ceeded the scope of this Court’s remand order by
awarding plaintiff total and permanent disability ben-
efits and whether total and permanent disability ben-
efits under MCL 418.361(3) (b) (loss of both legs) may
be awarded on the basis of plaintiff’s specific (anatomi-
cal) loss of one leg and his specific (industrial use) loss
of the other leg.
STANDARD OF REVIEW
We review de novo questions of law in worker’s
compensation cases. Mudel v Great Atlantic & Pacific
Tea Co, 462 Mich 691, 697 n 3; 614 NW2d 607 (2000).
Entitlement to worker’s compensation benefits must be
determined by reference to the statutory language
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creating those benefits. Nulf v Browne-Morse Co, 402
Mich 309, 312; 262 NW2d 664 (1978). As we have noted
in the past, when we construe a statute, our primary
goal is to give effect to the intent of the Legislature and
our first step in that process is to review the language of
the statute itself. In re MCI Telecom Complaint, 460
Mich 396, 411; 596 NW2d 164 (1999). The Legislature
has specified the proper approach to construing statu-
tory language, saying in MCL 8.3a:
All words and phrases shall be construed and under-
stood according to the common and approved usage of the
language; but technical words and phrases, and such as
may have acquired a peculiar and appropriate meaning in
the law, shall be construed and understood according to
such peculiar and appropriate meaning.
[4]
ANALYSIS: SPECIFIC LOSS
We turn first to the question of specific loss and
therefore focus our analysis on MCL 418.361(2). The
loss provision of this section repeatedly has been held to
be intended to compensate workers who have suffered
one of the losses enumerated in this provision, regard-
less of the effect on the worker’s earning capacity.
5
Cain
I, supra at 524; Redfern v Sparks-Withington Co, 403
Mich 63, 80-81; 268 NW2d 28 (1978). This means if a
worker, for example, loses an arm, thumb, finger, leg, or
so on in a workplace injury, specific loss benefits, as set
4
However, when a statute specifically defines a given term, that
definition alone controls. WS Butterfield Theatres, Inc v Dep’t of Revenue,
353 Mich 345; 91 NW2d 269 (1958).
5
We note that MCL 418.354(16), in providing for coordination of social
security and other benefits, recognizes this principle, stating in part, “It
is the intent of the legislature that, because benefits under section 361(2)
and (3) are benefits which recognize human factors substantially in
addition to the wage loss concept, coordination of benefits should not
apply to such benefits.”
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forth in the schedule, will be awarded even if no time is
missed from work. At issue here is whether a limb
(here, a leg), crushed but not severed, is to be treated as
lost, thus entitling the injured worker to specific loss
benefits.
Defendants argue that the word “loss” unambigu-
ously means “amputation,” especially in the context of
§ 361(2)(k), which expressly mentions amputation. As
they argue it, amputation is required because MCL
418.361(2)(k) provides benefits for the loss of a leg by
stating:
Leg, 215 weeks.
An amputation between the knee and foot 7 or more
inches below the tibial table (plateau) shall be considered a
foot, and an amputation above that point shall be consid-
ered a leg.
Thus, defendants assert that the amputation lan-
guage, at least regarding legs, limits the word “loss” in
the statute to mean that only amputations are com-
pensable.
Plaintiff, on the other hand, while agreeing that the
statute is unambiguous, argues that defendants’ ap-
proach is flawed because it disregards the original
meaning of the specific loss provisions when the WDCA
was enacted almost a century ago in favor of a modern
perception of the word’s meaning. The original mean-
ing, plaintiff asserts, is controlling because, although
the statute has been amended many times since its
enactment in 1912, the word “loss” has remained
unchanged and without express qualifications or limi-
tations. Plaintiff analogizes our task in determining the
meaning of “loss” to that which we undertook in Title
Office, Inc v Van Buren Co Treasurer, 469 Mich 516,
522; 676 NW2d 207 (2004), where we determined what
the plain and ordinary meaning of “transcript” was in
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1895. This analytical approach of plaintiff is sound.
Because the statute itself does not define “loss,” we
agree with plaintiff that we must ascertain the original
meaning the word “loss” had when the statute was
enacted in 1912.
“When determining the common, ordinary meaning
of a word or phrase, consulting a dictionary is appro-
priate.” Title Office, Inc, supra at 522. In the dictionar-
ies from the era of the original legislation, the definition
of “loss” is fairly broad: “Perdition, ruin, destruction;
the condition or fact of being ‘lost,’ destroyed, or
ruined,” New English Dictionary (1908); “State or fact
of being lost or destroyed; ruin; destruction; perdition;
as Loss of a vessel at sea,” Webster’s New Int’l Dictio-
nary of the English Language (1921); “Failure to hold,
keep, or preserve what one has had in his possession;
disappearance from possession, use, or knowledge; dep-
rivation of that which one has had: as, the loss of money
by gaming, loss of health or reputation, loss of children:
opposed to gain,” Century Dictionary and Cylopedia
(1911). From this we can see that severance is but one
way a loss may occur; loss also occurs when something
is destroyed, ruined, or when it disappears from use. We
conclude that amputation is not required in order for a
person to have suffered the loss of a specified body part.
Having ascertained the commonly understood mean-
ing of the word “loss,” our substantive analysis of its
definition is complete. Gladych v New Family Homes,
Inc, 468 Mich 594, 597; 664 NW2d 705 (2003). Our
conclusion is reinforced by the fact that the same
meaning for the word “loss” is found in the cases
construing late nineteenth-century private liability in-
surance plans for the aid of injured workers that were,
in part, the models for the body-part loss provisions of
our first worker’s compensation act. When, in special
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session, the Legislature in 1912 passed that first act,
known as Michigan’s “Workmen’s Compensation Act,”
6
it was the culmination of the efforts of the five-person
Employers’ Liability and Workmen’s Compensation
Commission appointed by Governor Chase S. Osborn in
1911.
7
The commission had been formed because of
what was described at the time as “wide dissatisfaction”
with the employer’s liability at common law for injuries
suffered by his employees. Report of the Employers’
Liability and Workmen’s Compensation Commission of
the State of Michigan, 5 (1911) (Report). The commis-
sion was directed to “investigate and report a plan for
legislative action to provide compensation for accidental
injuries or death arising out of and in the course of
employment....” Id. In its report, the commission,
after concluding that the existing negligence-based sys-
tem (1) failed to sufficiently encourage prevention of
accidents, (2) did not protect employers against exces-
sive verdicts, (3) resulted in inadequate compensation
for injured workers, and (4) engendered animosity and
strife, recommended a statute based on similar provi-
sions already enacted in Massachusetts, Wisconsin, and
New Jersey.
8
The Legislature, with very few changes to
the recommended language, briskly enacted this pro-
6
1912 (1st Ex Sess) PA 10.
7
1911 PA 245.
8
These in turn were modeled after European laws that first appeared
in the mid-1800s and that were well established by the end of that
century, swept along by massive industrialization occurring at the same
time throughout Europe. Harger, Worker’s compensation, a brief history,
<www.fldfs.com/WC/history.html> (accessed December 22, 2004). In this
country, the first constitutional worker’s compensation law was the 1908
Employer’s Liability Acts, 45 USC 51-60. In 1911, the first states
followed, and by 1913, twenty-three states had comparable laws. Harger,
supra. By 1948, all the states had at least some form of worker’s
compensation, including the territories of Alaska and Hawaii. Harger,
supra.
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posal as Michigan’s workmen’s compensation act less
than three weeks after the bill was introduced. 1912
(1st Ex Sess) Journal of the House 13, 149-150.
In dealing with what today is described as total and
permanent disability, the 1912 statute stated in § 9:
While the incapacity for work resulting from the injury
is total, the employer shall pay, or cause to be paid as
hereinafter provided, to the injured employee a weekly
compensation equal to one-half his average weekly wages,
but not more than ten dollars nor less than four dollars a
week; and in no case shall the period covered by such
compensation be greater than five hundred weeks, nor
shall the total amount of all compensation exceed four
thousand dollars. [1912 (1st Ex Sess) PA 10, part II, § 9.]
In dealing with partial incapacity, the statute stated
at § 10:
While the incapacity for work resulting from the injury
is partial, the employer shall pay, or cause to be paid as
hereinafter provided, to the injured employee a weekly
compensation equal to one-half the difference between his
average weekly wages before the injury and the average
weekly wages which he is able to earn thereafter, but not
more than ten dollars a week; and in no case shall the
period covered by such compensation be greater than three
hundred weeks from the date of the injury. In cases
included by the following schedule the disability in each
such case shall be deemed to continue for the period
specified, and the compensation so paid for such injury
shall be as specified therein, to wit:
***
For the loss of a leg, fifty per centum of average weekly
wages during one hundred and seventy-five weeks. [1912
(1st Ex Sess) PA 10, part II, § 10.]
Section 9 allowed wage-based benefits to be paid to
workers who were totally incapacitated from work,
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regardless of the type of work-related injury that caused
the incapacity, while § 10 provided for benefits when the
worker was partially incapacitated. Moreover, the latter
part of § 10, with its schedule of benefits for specific
losses, allowed a set amount of weeks that benefits
would be awarded when a worker suffered one of the
specific injuries described. In doing so, it was intention-
ally patterned after the specific loss provisions of the
above-referenced employers’ private liability insurance
plans, which were designed to provide benefits to work-
ers injured on the job. Report, supra.
9
The cases construing such insurance policies in that
era, from Michigan and elsewhere, unmistakably indi-
9
The commission’s report even included in its appendix the text of two
plans “typical” at the time. Report, supra, Appendix VII, 143-146. The
“Benefit and Relief Plans of the Cleveland-Cliffs Iron Company” pro-
vided:
In addition to the monthly benefit payments, other amounts
are paid for certain serious injuries, as follows:
Loss of one arm, leg or eye, $166.66.
Loss of both arms, legs or eyes, $500.
Similarly, the “Benefit and Relief Plans of the Oliver Iron Mining
Company” provided:
The following injuries have specified amounts, and others in
proportion to these injuries:
(a) For the loss of a hand, twelve months’ wages.
(b) For the loss of an arm, eighteen months’ wages.
(c) For the loss of a foot, nine months’ wages.
(d) For the loss of a leg, twelve months’ wages.
(e) For the loss of one eye, six months’ wages.
Sections 9 and 10 of the 1912 act incorporated language similar to
these insurance plans.
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cate that the word “loss,” just as it did in dictionaries of
the time, meant not just severance or amputation but
also the destruction of the usefulness of the member. In
Michigan, our Court in Fuller v L ocomotive Engineers’
Mut Life & Accident Ins Ass’n, 122 Mich 548, 553; 81
NW 326 (1899), construing the specific loss provision in
an insurance policy, said just this, indicating that
where an insurance policy insures against the loss of a
member, or the loss of an entire member, the word “loss”
should be construed to mean the destruction of the useful-
ness of the member, or the entire member, for the purposes
to which, in its normal condition, it was susceptible of
application.
Simply stated, under such a policy in Michigan, no
amputation was necessary for a loss. The rationale for
not limiting loss just to amputation was the under-
standing by this Court and, as we will explain, by other
American courts that the term “loss” in such policies
should be given its ordinary and popular meaning,
which was broad enough to include loss of usefulness.
As the Missouri Supreme Court said on this topic, the
word “loss” in insurance policies “was used in its
ordinary and popular sense and [did] not mean that
there should be a total destruction of the [member],
anatomically speaking, but that the loss of the use of it
for the purposes to which [the member] is adapted
would be a loss of it....”Sisson v Supreme Court of
Honor, 104 Mo App 54, 60; 78 SW 297 (1904). The
Kansas Supreme Court stated it similarly: “The loss of
a member of the body, as used in an accident insurance
policy, unless restricted or modified by other language,
carries the common meaning of the term ‘loss,’ which is
the loss of the beneficial use of the member. Obviously
this may occur when there is not a complete severance
of the member from the body.” Noel v Continental Cas
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Co, 138 Kan 136, 139; 23 P2d 610 (1933). The Kansas
court then reinforced its holding by citing thirteen cases
from ten other states from the late nineteenth and early
twentieth centuries, holding to the same effect.
10
Also buttressing our analysis is that, in the early
years of the act’s existence, the decisions of the Indus-
trial Accident Board (IAB), the WCAC’s predecessor,
also construed “loss” as defined in the dictionary. That
is consistent with its commonly understood meaning.
This is consequential because half of the four IAB board
members had served on Governor Osborn’s commission
and had recommended the very “loss” language we are
considering.
11
We find the interpretation these board
members gave to the statute useful in the same way
that the comments of drafting committees can be “use-
ful interpretive aids” for construing statutes. See Gla-
dych, supra at 601 n 4. The IAB, in Lardie v Grand
Rapids Show Case Co, 1916 Workmen’s Compensation
Cases 17, 19, in discussing loss, stated that “courts have
uniformly construed provisions of accident policies in-
10
Travelers’ Ins Co v Richmond, 284 SW 698 (Tex Civ App, 1926);
Continental Cas Co v Linn, 226 Ky 328; 10 SW2d 1079 (1928); Jones v
Continental Cas Co, 189 Iowa 678; 179 NW 203 (1920); Locomotive
Engineers’ Mut Life & Accident Ins Co v Meeks, 157 Miss 97; 127 So 699
(1930); Moore v Aetna Life Ins Co, 75 Or 47; 146 P 151 (1915); Bowling
v Life Ins Co of Virginia, 39 Ohio App 491; 177 NE 531 (1930); Citizens’
Mut Life Ass’n v Kennedy, 57 SW2d 265 (Tex Civ App, 1933); Sneck v
Travelers’ Ins Co, 88 Hun 94; 34 NYS 545 (1895); Sheanon v Pacific Mut
Life Ins Co, 77 Wis 618; 46 NW 799 (1890); Lord v American Mut Accident
Ass’n, 89 Wis 19; 61 NW 293 (1894); Berset v New York Life Ins Co, 175
Minn 210; 220 NW 561 (1928); Sisson v Supreme Court of Honor, 104 Mo
App 54; 78 SW 297 (1904); Int’l Travelers’ Ass’n v Rogers, 163 SW 421
(Tex Civ App, 1914).
11
Richard L. Drake was its first secretary and Ora E. Reaves was one
of three board commissioners. Reaves remained on the board until at
least 1920. Michigan Official Directory and Legislative Manual, 1913-
1914, 1915-1916, 1917-1918, and 1919-1920.
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suring against the loss of a member, to cover cases
where the usefulness of the member was destroyed by
accident without resulting in severance or amputation.”
Id., citing Fuller, supra at 553. Similarly, that “loss” in
the context of worker’s compensation specific loss ben-
efits did not mean only amputations, but also included
loss of usefulness, was indicated by the IAB’s decisions
in an unnamed case cited in Industrial Accident Bd,
Bulletin No 3, 13 (1913);
12
Rider v C H Little Co,
Industrial Accident Bd, supra at 27, 29 (1913); Hirsch-
korn v Fiege Desk Co, 184 Mich 239; 150 NW 851
(1915); Purdy v Sault Ste Marie, 188 Mich 573, 579; 155
NW 597 (1915); Cline v Studebaker Corp, 189 Mich 514;
155 NW 519 (1915); L ardie, supra; Carpenter v Detroit
Forging Co, 191 Mich 45; 157 NW 374 (1916); Packer v
Olds Motor Works, 195 Mich 497; 162 NW 80 (1917);
Adomites v Royal Furniture Co, 196 Mich 498; 162 NW
965 (1917).
The same can be seen in large part in this Court’s
jurisprudence of the time. For example, in Purdy, supra
at 579, the Court affirmed the IAB’s specific loss award
for a crushed leg.
13
In Lovalo v Michigan Stamping Co,
12
The board stated in that case:
The action of the surgeon in amputating a finger, or in failing
to amputate it, or in choosing the point of amputation is not
controlling in all cases of this kind. Each case depends for its
decision upon the particular facts relating to the finger, and these
might relate to the point of amputation, or the fact that the finger
or a portion thereof had been rendered useless without being
amputated....TheBoardisfurtheroftheopinionthatincaseno
part of the finger is amputated and the injury is such as to entirely
destroy the usefulness of the first phalange or the entire finger, in
that event the injured person has lost the first phalange or the
finger, as the case may be, as completely as if the same had been
amputated.
13
The IAB’s decision is at 1916 Workmen’s Compensation Cases 65.
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202 Mich 85, 89; 167 NW 904 (1918), the Court held
that the claimant had suffered the loss of his hand
where four fingers and nearly all the palm were ampu-
tated, saying that “the loss of all the palm and all of the
fingers of the hand could . . . be reasonably considered
the loss of the entire hand.” Indeed, the only expressly
contrary case in this era is Wilcox v Clarage Foundry &
Mfg Co, 199 Mich 79; 165 NW 925 (1917), where the
Court, in a case with difficult facts, determined that the
specific loss provision required anatomical loss. The
Wilcox Court made no effort to reconcile its holding
with the IAB’s clearly stated understanding of “loss,”
nor with Fuller or Purdy, but analogized instead to
cases where the plaintiffs had suffered partial losses
and this Court had required proof of complete, rather
than partial, loss.
14
We conclude that, given its outlier
status, as well as the fact that the construction it seeks
to give to the term “loss” is inconsistent with the
original meaning of “loss” in the act, Wilcox was incor-
rectly decided. Thus, we overrule Wilcox so that its
potentially confusing shadow will be removed from our
case law.
15
To summarize, then, regarding this issue of the
definition of “loss”: the definition comes from its com-
monly understood meaning at the time of enactment.
The contemporaneous uses of the word are corrobora-
tive and reinforcing of this definition.
14
Even if those cases can be read as requiring amputation, Wilcox was
flawed in a broader sense by the fact that, rather than tracing its
rationale to the act itself, it used as a template, as one might in a
common-law case, the prior cases construing the act.
15
We are reinforced in our notion that Wilcox is aberrant by the fact
that the Lovalo Court, in reaching a holding contrary to Wilcox just one
year later, left unaddressed the continuing strength of Wilcox, suggesting
that the Court considered it confined to its facts.
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Defendants assert that, even given this conclusion,
the 1927 amendments forever altered the definition of
“loss.” In 1927, the Legislature, for the only time in the
twentieth century, consequentially amended the spe-
cific loss section of the statute by adding to the provi-
sion regarding a leg the language: “An amputation
between the knee and foot six or more inches below the
knee shall be considered a foot, above this point a
leg[.]”
16
1927 PA 63. Keying off of this amendment,
defendants urge that this language implicitly was de-
signed to alter any previously broad understanding of
the word “loss” so that after the amendment there
could be no specific loss without an amputation. We
think this explanation insufficiently appreciates that
the amendment came in the wake of a series of cases
where this Court had made debatable calls on the
nature of the loss after an amputation.
17
That is, at
what point on the limb had a loss become not just of a
hand but of an arm, not just of a foot but of a leg? We
believe the goal of the amendment was to bring cer-
tainty to this discrete set of determinations once there
was an amputation. It is hard to conclude otherwise,
given that the Legislature, in its amendment, did not
expressly alter or redefine the word “loss” itself and
especially given that word’s quite clear meaning in the
dictionaries of the time as well as the above-referenced
16
Similarly, the amendment added to the provision for an arm, “An
amputation between the elbow and wrist 6 or more inches below the
elbow shall be considered a hand, above this point an arm.”
17
StocinvCRWilson Body Co, 205 Mich 1; 171 NW 352 (1919)
(holding that a claimant had lost his arm, not just his hand, where it was
severed below the elbow and the upper arm was atrophied), Curtis v
Hayes Wheel Co, 211 Mich 260; 178 NW 675 (1920) (holding that the
claimant had lost just a foot where his amputation occurred four to five
inches below the knee), and Reno v Holmes, 238 Mich 572; 214 NW 174
(1927) (holding that a claimant had lost his leg, not just his foot, where
it was severed 5
1
/2 inches below the knee).
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decisions of the IAB and this Court. Moreover, this
Court’s leading postamendment decision in the 1930s
on the issue of loss
18
is consistent with this understand-
ing that the 1927 amendment was not intended to
reverse the holdings of the IAB and this Court on what
is a loss.
This dominant theme of our case law, that loss does
not require amputation, can be seen throughout the
mid-century, albeit with some false starts.
19
Later in the
century, in Pipe v Leese Tool & Die Co, 410 Mich 510;
302 NW2d 526 (1981), the Court correctly determined,
consistent with the original understanding of the act
and the earlier cases we have discussed, that amputa-
tion was not a prerequisite to a “loss.”
Pipe, however, in a phrase used frequently in these
cases, described this loss of usefulness as “loss of the
industrial use....” Id. at 527. The phrase “loss of
industrial use” does not appear anywhere in the specific
loss provisions, and seems to have been intended as
judicial shorthand to describe the condition of the
injured member from the standpoint of its use in
employment. However, this description causes confu-
sion because it does not adequately capture the proper
standard, which is that specific loss is to be determined
18
See Rench v Kalamazoo Stove & Furnace Co, 286 Mich 314; 282 NW
162 (1938), where the Court allowed an award for loss of two hands where
most of the plaintiff’s fingers had been severed and he had suffered a
total loss of use of both his hands.
19
In the middle of the century, with Hlady v Wolverine Bolt Co, 325
Mich 23; 37 NW2d 576 (1949), as well as Utter v Ottawa Metal Co, 326
Mich 450; 40 NW2d 218 (1949), and Barnett v Kelsey-Hayes Wheel Co, 328
Mich 37; 43 NW2d 55 (1950), this Court decided cases contrary to this
original understanding of the specific loss provisions. But these cases are
inconsistent with the proper understanding of the statute and we note
that they were hesitatingly followed, if at all, and Hlady was expressly
overruled. Mitchell v Metal Assemblies, Inc, 379 Mich 368, 380; 151
NW2d 818 (1967).
256 472 M
ICH
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without reference to the plaintiff’s earning capacity or
ability to return to work. That is, it is paid if the loss has
been incurred and it is not relevant whether the worker
can work after the loss. Miller v Sullivan Milk Prod-
ucts, Inc, 385 Mich 659; 189 NW2d 304 (1971); Shumate
v American Stamping Co, 357 Mich 689; 99 NW2d 374
(1959). We believe it was this concept that the Pipe
Court was attempting to articulate and we clarify by
means of this opinion that holding.
To be clear, we are endeavoring here not to craft a
new standard, but to articulate clearly the standard
enacted in 1912. We find that the original understand-
ing the word “loss” carried when the WDCA was
enacted was its plain and ordinary meaning, consistent
with how it had been construed in the context of
insurance law. Thus, “loss” includes not only amputa-
tion but also loss of usefulness.
20
It was the intent of the
drafters to write into the statute a word that was
expansive enough to cover both situations and the
words and language they chose conveyed this. More-
over, in our case law, this Court has with considerable
consistency, albeit not unfailingly, upheld this construc-
tion. We do so again today, believing as courts have
before us that the meaning we give to the word “loss” in
MCL 418.361(2) is the meaning originally intended.
Defendants’ approach would require us to ignore the
statutory drafters’ and enactors’ turn-of-the-twentieth-
century understanding of the common and approved
meaning of “loss” in favor of a purportedly different
contemporary understanding, divorced from its roots.
This we cannot do. We are not free to substitute any
other nonstatutory definition of a word or term for the
meaning it indisputably had in 1912, and has main-
20
In Pipe, supra at 530, and again in Cain I, supra at 524, we referred
to this as anatomical loss or its equivalent.
2005] C
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tained for almost a century. This duty traces to the
simple notion that we are to construe a statute “in the
light of the circumstances existing at the date of its
enactment, not in the light of subsequent develop-
ments....‘The words of a statute must be taken in the
sense in which they were understood at the time when
the statute was enacted.’ ” Wayne Co Bd of Rd Comm’rs
v Wayne Co Clerk, 293 Mich 229, 235-236; 291 NW 879
(1940), quoting 25 RCL, § 215, p 959. We therefore hold
to the original meaning of the word “loss” in the specific
loss provisions: it does not require severance and there
can be a “loss” where the claimant suffers the loss of
usefulness of the member.
In addition, we conclude that the WCAC properly
applied the “uncorrected” standard. We discussed in
Cain I, supra at 521-523, the propriety of applying the
“uncorrected” standard to specific loss claims and the
“corrected” standard to total and permanent disability
claims. We reaffirm that rule today.
The WCAC found the damage to Mr. Cain’s left leg
“equated with anatomical loss and that the limb retains
no substantial utility.” The WCAC’s factual finding is,
in essence, that he lost the usefulness of his leg. Because
that factual finding is supported by competent evidence
in the record, it must be affirmed. Mudel, supra at 701.
The Court of Appeals erred when it grafted a loss of
industrial use standard onto the factual findings of the
administrative tribunal. Nonetheless, it reached the
correct result with regard to plaintiff’s benefit eligibil-
ity. Accordingly, plaintiff is eligible for specific loss
benefits for the loss of his left leg.
ANALYSIS: TOTAL AND PERMANENT DISABILITY
We next turn to analyze whether the WCAC correctly
allowed plaintiff benefits under the total and perma-
258 472 M
ICH
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nent disability provisions, MCL 418.361(3). Our task in
interpreting the Legislature’s work is, if possible, to
read the seven eligibility requirements in § 361(3) so as
to read none of them out or as an unnecessary duplica-
tion of another. In particular, we must endeavor to
harmonize the three provisions concerning legs and to
read them in a way that does not make any of the
language surplusage. Jenkins v Patel, 471 Mich 158,
167; 684 NW2d 346 (2004); State Farm Fire & Cas Co v
Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715
(2002). In short, we read the words in a statute to-
gether, to harmonize the meaning of the clauses and
give effect to the whole. G C Timmis & Co v Guardian
Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003).
Defendants argue that we cannot construe “[l]oss” in
§ 361(3)(b) to mean less than amputation because then
cases of lost industrial use would fall under both
§ 361(3)(b) and § 361(3)(g), rendering the latter sur-
plusage. We disagree. We find the proper construction of
the word “[l]oss” in § 361(3)(b) is that it has the same
meaning given it in § 361(2).
21
This conclusion is unsur-
prising, we believe, given the juxtaposition of §§ 361(2)
and 361(3), which is itself a compelling reason to give
them the same meaning. See, e.g., Sibley v Smith,2
Mich 487, 491 (1853). Furthermore, doing so, as we will
explain, causes no part of § 361(3) to be duplicative or
nugatory. Dealing with § 361(3)(b) first, we find that
using this definition of loss means that benefits are
payable under this section not only when there is
anatomical loss, but also when the limbs have no
practical usefulness. Section 361(3)(g), on the other
hand, as we discussed in Cain I, with its reference to
permanent and total loss of industrial use, calls the
21
We note that this meaning would also apply in §§ 361(3)(c) and
361(3)(d).
2005] C
AIN V
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fact-finder to look to wage-earning capacity and the
injured worker’s ability to function in industry. As is
apparent, these words demand something distinct from
§ 361(3)(b)’s simple inquiry regarding whether the legs
or feet are amputated or have no practical usefulness.
This means that what is covered under § 361(3)(b) may
not be covered under § 361(3)(g). Stated more formally,
§§ 361(3)(b) and 361(3)(g) cover different things and
defining loss as we have here does not make either
provision nugatory. An example may make this distinc-
tion clearer. If the legs are rendered useless but can be
braced so as to make the performance of the job
possible, there has been loss under § 361(3)(b) but no
loss of industrial use under § 361(3)(g). This worker,
indeed like Mr. Cain, would under this reading qualify
for total and permanent disability benefits under
§ 361(3)(b) but not § 361(3)(g). Conversely, a worker
whose legs have basic function, i.e., are practically
useful, but whose legs have no industrial use even if
braced (such as a ballerina), would qualify under
§ 361(3)(g) but not § 361(3)(b).
These examples limn that the “corrected” standard
does not apply to § 361(3)(b), unlike § 361(3)(g). The
reason is, as we explained in Cain I, that § 361(3)(g),
with its utilization of permanent and total loss lan-
guage, compels a conclusion that if the condition is
correctable, it is not permanent and total. Cain I, supra
at 519-520. In fact, when this language appears else-
where in § 361(3), such as in §§ 361(3)(a) and 361(3)(e),
the doctrine of correctability also applies. Because there
is no such permanent and total loss triggering language
in § 361(3)(b), it follows that the requirement of looking
to correctability is absent.
22
22
Again, §§ 361(3)(c) and 361(3)(d) are similarly worded.
260 472 M
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In sum, Mr. Cain has clearly suffered the loss of his
amputated right leg and the WCAC found that his left
leg has “no substantial utility.” That is, his leg has no
practical usefulness. Thus, he has suffered a “loss of
both legs” and falls within § 361(3)(b), qualifying for an
award of total and permanent disability benefits under
that provision.
23
Accordingly, the WCAC and the Court
of Appeals decisions are affirmed.
24
CONCLUSION
In conclusion, we find that Mr. Cain has suffered the
specific loss of his left leg under MCL 418.361(2) and
that he qualifies for an award of total and permanent
disability benefits under MCL 418.361(3)(b). Therefore,
we affirm the decisions of the Court of Appeals and the
WCAC.
C
AVANAGH,
C
ORRIGAN,
Y
OUNG,
and M
ARKMAN,
JJ., con-
curred with T
AYLOR,
C.J.
W
EAVER,
J. (concurring). I concur in the result of the
majority opinion and its conclusions that plaintiff suf-
fered a specific loss of his left leg under MCL
23
We have read the concurrence and, to preclude potential confusion,
only note that its conclusion is identical to ours.
24
We also conclude that, although the WCAC made an error of law in
its interpretation of § 361(3)(b), it was properly within its scope on
remand to reach legal conclusions based on its reassessment of the facts.
Modreski v Gen Motors Corp, 417 Mich 323; 337 NW2d 231 (1983). While
the WCAC was precluded from reaching a decision contrary to that of this
Court, Cain I did not address the question whether plaintiff had suffered
total and permanent disability under § 361(3)(b). Although the WCAC’s
determination on remand that he met the requirements of § 361(3)(b)
had the opposite outcome from its initial determination that he was not
qualified under § 361(3)(g), its finding was based on a different legal
theory. We conclude that it did not err in addressing legal questions raised
by its new factual determination.
2005] C
AIN V
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ONCURRING
O
PINION BY
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EAVER
,J.
418.361(2)(k) and that he qualifies for an award of total
and permanent disability benefits under MCL
418.361(3)(b). The word “loss,” as used in both subsec-
tions of the statute, includes not only amputation but
also those situations in which there is a loss of the
usefulness of the limb or member.
1
As noted by Chief
Justice T
AYLOR
, the Worker’s Compensation Appellate
Commission (WCAC) essentially found that on these
facts, plaintiff lost the usefulness of his left leg and that
he accordingly was entitled to specific loss benefits for
the loss of his left leg under MCL 418.361(2)(k). Ante at
258. There is competent evidence to support the
WCAC’s factual finding and we must defer to the WCAC
on this finding. Mudel v Great Atlantic & Pacific Tea
Co, 462 Mich 691, 703; 614 NW2d 607 (2000). Further,
plaintiff has suffered a “[l]oss of both legs” under MCL
418.361(3)(b) because his right leg has been amputated
and he has lost the usefulness of his left leg. Conse-
quently, he is entitled to total and permanent disability
benefits. Therefore, I agree that the decisions of the
WCAC and Court of Appeals should be affirmed.
2
K
ELLY
, J., concurred with W
EAVER
,J.
1
Dictionary definitions of the word “loss” include: “failure to preserve
or maintain” and “destruction, ruin.” Random House Webster’s New
College Dictionary (1997).
2
While I agree with some of the basic conclusions of the majority, as
should be evident from the fact that I am concurring separately, I do not
sign on to all of the lengthy analysis on which the majority relies to
support its conclusions.
262 472 M
ICH
236 [May
C
ONCURRING
O
PINION BY
W
EAVER
,J.
GARG v MACOMB COUNTY COMMUNITY
MENTAL HEALTH SERVICES
Docket No. 121361. Argued November 9, 2004 (Calendar No. 1). Decided
May 11, 2005. Amended 473 Mich 1205.
Sharda Garg, a person of Asian Indian ancestry, brought an action in
the Macomb Circuit Court against Macomb County Community
Mental Health Services, her employer, alleging violations of the
Civil Rights Act, MCL 37.2101 et seq., specifically that she was
denied promotions and subjected to poor treatment because of
national-origin discrimination and in retaliation for engaging in
activities protected by the act. A jury awarded damages, finding
retaliation but not discrimination. The court, Roland L. Olzark, J.,
entered a judgment consistent with the verdict and denied the
defendant’s motion for judgment notwithstanding the verdict or a
new trial. The Court of Appeals, G
RIFFIN
,P.J., and M
ETER
and
K
ELLY
, JJ., affirmed in an unpublished opinion per curiam, issued
March 29, 2002 (Docket No. 223829). The Supreme Court granted
the defendant’s application for leave to appeal. 469 Mich 1042
(2004).
In an opinion by Justice M
ARKMAN
, joined by Chief Justice
T
AYLOR
, and Justices C
ORRIGAN
and Y
OUNG
, the Supreme Court
held:
The plaintiff failed to present sufficient evidence that she was
subjected to retaliation either for her alleged opposition to sexual
harassment or for filing a grievance claiming national-origin
discrimination. The judgment of the Court of Appeals must be
reversed and the matter must be remanded to the trial court for
entry of a judgment in favor of the defendant.
1. There is insufficient evidence either that plaintiff opposed
sexual harassment or that defendant knew that plaintiff was
engaged in opposition to sexual harassment in the workplace. The
plaintiff claimed that she observed a supervisor sexually harass
women in the workplace and that she engaged in activity protected
by the Civil Rights Act by opposing such harassment in striking an
unknown person who had touched her back and who turned out to
be the same supervisor. However, the supervisor was not sexually
harassing the plaintiff when she struck him, the plaintiff never
2005] G
ARG V
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ACOMB
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ENTAL
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EALTH
263
characterized her reaction to the touching as opposing sexual
harassment until she filed her action, and the plaintiff never told
or gave any indication to the supervisor or anyone else that
striking the supervisor was an act of opposing sexual harassment.
2. The “continuing violations” doctrine of Sumner v Goodyear
Tire & Rubber Co, 427 Mich 505 (1986), which allows consider-
ation of acts falling outside the three-year limitations period of
MCL 600.5805(1) and (10) applicable to actions under the Civil
Rights Act, is inconsistent with the statute of limitations and must
be overruled.
3. The plaintiff engaged in activity protected by the Civil
Rights Act in filing a grievance alleging violation of the act. The
defendant was aware of this activity. However, absent evidence of
acts occurring outside the period of limitations, the plaintiff failed
to establish a causal link between the filing of the grievance and
the subsequent alleged adverse employment actions. There is no
evidence to suggest any distinction between denials of promotion
by the supervisor who received the grievance and by other super-
visors who were not aware of the grievance. Also lacking was
evidence that the plaintiff was treated any differently at work by
the supervisor who received the grievance and by other supervi-
sors who were not aware of the grievance.
Reversed and remanded to the circuit court.
Justice C
AVANAGH
, joined by Justice K
ELLY
, dissenting, agreed
with the majority’s conclusion that there was insufficient evidence
of retaliation based on the plaintiff’s alleged opposition to the
sexual harassment of her coworkers, but disagreed with the
conclusion that the plaintiff presented insufficient evidence that
she was retaliated against for filing a grievance. Further, Sumner
should not be overruled and the continuing violations doctrine
should not be abolished. The majority also erred in concluding that
because the continuing violations doctrine no longer applies,
evidence of prior acts must be excluded from consideration.
In this case, the continuing violations doctrine should be applied
and should result in a conclusion that all of the adverse employment
actions taken by the defendant against the plaintiff are actionable.
A review of the four principles to be considered before established
precedent is overruled, as detailed in Pohutski v City of Allen Park,
465 Mich 675, 694 (2002), shows that none of the factors weighs in
favor of overruling Sumner and abolishing the continuing violations
doctrine. Even if Justice C
AVANAGH
were to agree with the majority
that the continuing violations doctrine is no longer viable, the
natural consequence of abolishing that doctrine is not to exclude
264 472 M
ICH
263 [May
untimely acts from consideration. Rather, abolishing the doctrine
simply means that untimely acts are not actionable.
Justice W
EAVER
, joined by Justice K
ELLY
, dissenting, agreed
with the reasoning and conclusions in Justice C
AVANAGH
’s dissent-
ing opinion. She wrote separately to state that she is not persuaded
that the unanimous adoption of the continuing violations doctrine
in Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), was
unwarranted or that the doctrine should be abandoned.
1. C
IVIL
R
IGHTS —
E
MPLOYMENT
D
ISCRIMINATION —
R
ETALIATION
.
A plaintiff seeking to establish a prima facie case of unlawful
employment-related retaliation under the Civil Rights Act must
show that the plaintiff engaged in a protected activity, that this
was known by the defendant, that the defendant took an employ-
ment action adverse to the plaintiff, and that there was a causal
connection between the protected activity and the adverse employ-
ment action (MCL 37.2701).
2. C
IVIL
R
IGHTS —
E
MPLOYMENT
D
ISCRIMINATION —
L
IMITATION OF
A
CTIONS —
C
ONTINUING
V
IOLATIONS
D
OCTRINE
.
The continuing violations doctrine announced in Sumner v Good-
year Tire & Rubber Co, 427 Mich 505 (1986), which allows
consideration of acts falling outside the three-year limitations
period of MCL 600.5805(1) and (10) applicable to actions under the
Civil Rights Act, is inconsistent with the language of the statute of
limitations and may no longer be applied.
Pitt, Dowty, McGehee, Mirer & Palmer, P.C. (by Beth
M. Rivers and Robert W. Palmer), and Monica Farris
Linkner and Allyn Carol Ravitz for the plaintiff.
Kitch Drutchas Wagner DeNardis & Valitutti (by
Susan Healy Zitterman and Karen B. Berkery) for the
defendant.
Amici Curiae:
Michael A. Cox, Attorney General, and Susan I.
Leffler, Ron D. Robinson, and Suzanne D. Sonneborn,
Assistant Attorneys General, for the Michigan Civil
Rights Commission and the Department of Civil Rights.
2005] G
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265
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, and Patrick J. O’Brien and Heather S.
Meingast, Assistant Attorneys General, for the Attor-
ney General.
Sachs Waldman, P.C. (by Mary Katherine Norton), for
the Michigan State AFL-CIO, the Michigan Trial Law-
yers Association, and the Michigan Employment Law-
yers Association.
M
ARKMAN,
J. We granted leave to appeal to consider
whether there was sufficient evidence to support plain-
tiff’s claims of retaliatory discrimination and whether
the “continuing violations” doctrine of Sumner v Good-
year Tire & Rubber Co, 427 Mich 505; 398 NW2d 368
(1986), should be preserved, modified, or abrogated in
light of the language of the statute of limitations, MCL
600.5805(1). The jury found that plaintiff was not
discriminated against on the basis of national origin,
but was retaliated against on the basis of either her
opposition to sexual harassment or because she filed a
grievance claiming national-origin discrimination. The
Court of Appeals affirmed. Because we conclude that,
once evidence of acts that occurred outside the statute
of limitations period is removed from consideration,
there was insufficient evidence of retaliation based on
either plaintiff’s alleged opposition to sexual harass-
ment or her filing of a grievance, we reverse the
judgment of the Court of Appeals and remand to the
trial court for entry of a judgment in favor of defendant.
In so holding, we overrule the “continuing violations”
doctrine of Sumner, supra, as inconsistent with the
language of the statute of limitations, MCL 600.5805(1)
and (10). As a result, we do not reach the other issues
raised on appeal or the issues raised in plaintiff’s
cross-appeal.
266 472 M
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I. FACTS AND PROCEDURAL HISTORY
Plaintiff Sharda Garg is of Asian Indian ancestry. She
began her employment as a staff psychologist with
defendant Macomb County Community Mental Health
Services in 1978. Plaintiff testified that Donald
Habkirk, the director of defendant’s disability section,
which included the facility where plaintiff worked, had
during 1981 engaged in what plaintiff characterized as
“sexually harassing” behavior with female coworkers.
Specifically, plaintiff observed Habkirk pull one cowork-
er’s bra strap and snap the elastic panties of another.
Plaintiff acknowledges that she herself was never
treated in this manner or otherwise sexually harassed,
and that she never reported to anyone the incidents she
allegedly observed. Habkirk denied engaging in such
conduct.
At “around the same time,” plaintiff, while walking
down an office corridor, felt someone’s hand touch her
upper back, near her shoulder. Plaintiff reacted as
follows: “I felt somebody touching me, and I just turned
around and swung at him.” She further observed, “it
was a very automatic reaction on my part.” It was only
after she hit this person that she realized it was
Habkirk whom she had hit. She and Habkirk stared at
each other for a moment before she proceeded into her
office. Plaintiff did not file a grievance, tell anyone
about the incident, or offer any explanation to anyone
regarding why she had struck Habkirk. In response to a
question concerning whether the touching was “im-
proper,” plaintiff did not characterize it as such.
While Habkirk never took any formal action against
plaintiff for striking him, and indeed testified that he
could not even remember the incident, plaintiff claims
that her formerly cordial relationship with Habkirk
deteriorated as he became increasingly cold and distant.
2005] G
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While plaintiff generally enjoyed a good employment
relationship with defendant and its management ini-
tially, she asserted that she began to perceive changes
in this relationship following the touching incident.
After six years of being rated as either “outstanding”
or “very good,” plaintiff’s 1983 performance review
was downgraded to “satisfactory.” It was also at this
point that plaintiff applied for several job promotions,
in each case unsuccessfully. The first position she
applied for in 1983 was given to someone from outside
the organization, despite a general inclination by
defendant in favor of internal promotions. Two other
promotion applications in 1983 were also rejected.
Over the next three years, plaintiff applied unsuccess-
fully for four more promotions. Plaintiff was denied a
total of eighteen promotion opportunities, including
eleven during the period of 1983 through 1987. During
this period, Habkirk always served in plaintiff’s chain
of command. Once at a dinner party with plaintiff’s
immediate supervisor, Robert Slaine, plaintiff’s hus-
band asked why plaintiff had not been promoted.
Slaine responded that, in his opinion, it was because
Habkirk did not like plaintiff. Slaine denied making
this statement, and Habkirk denied telling Slaine that
he disliked plaintiff.
In 1986, Kent Cathcart was chosen by Habkirk as the
new program director in plaintiff’s facility. However,
little changed for plaintiff because she failed to receive
any of the next three promotions for which she applied.
In December 1986, she was denied a promotion in favor
of a contract employee with less seniority. Following
this rejection in February 1987, plaintiff filed her first
promotion-related grievance with the union represent-
ing defendant’s employees. When plaintiff was again
denied a promotion in early 1987, this time in favor of a
person from outside the company, she filed a second
268 472 M
ICH
263 [May
O
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OURT
promotion-related grievance with the union in June
1987, alleging that the denial was due to discrimina-
tion based on her national origin and color. The
grievance was forwarded to Cathcart, and was denied
without investigation. Plaintiff next applied for a
promotion in 1989, but was again denied. Plaintiff was
denied seven promotions during the period of 1989
through 1997.
Plaintiff claims that the “retaliation” against her for
filing these grievances also took the form of poor overall
treatment by defendant. Specifically, she claims that
Cathcart, and the two supervisors who succeeded Cath-
cart after plaintiff was transferred to defendant’s First
North facility in 1995, treated her “in a degrading and
humiliating manner.” Plaintiff claims that Cathcart
would criticize her for not participating in agency
activities, but would then deny her requests to partici-
pate in meetings, conferences, and committees. In ad-
dition, plaintiff testified that Cathcart would reprimand
her for being even two minutes late for work, but would
let her coworkers “come and go as they pleased.”
Plaintiff also testified that Cathcart once chastised her
for going outside to look at a rainbow, but that her
coworkers were routinely allowed to go outside for
cigarette breaks on company time. Cathcart also re-
fused to give her keys to the facility. Finally, when she
moved to First North, plaintiff was given an office that
was formerly a storage closet. The office was uncar-
peted and had no windows. In addition, it was located
next to a bathroom, forcing plaintiff to hear “people
defecating and urinating” throughout the day. Plaintiff
was assigned to this office despite her seventeen years
of seniority and the availability of more desirable office
spaces.
2005] G
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Plaintiff also claims that Cathcart demonstrated a
predisposition against “people of color” during the
period that she was employed by defendant under his
supervision. Specifically, plaintiff testified regarding
four separate displays of this predisposition. First,
when Cathcart learned that plaintiff’s son had been
accepted to medical school, he allegedly stated that
“there are enough Indian doctors already.” Second,
Cathcart allegedly complained about the accent of an
Indian psychiatrist, stating that “these people have
been here long enough, they ought to speak good
English.” Third, Cathcart allegedly stated that he
would not have hired an African-American nurse if a
white candidate had been available. Finally, Cathcart
allegedly used a racially derogatory term when refer-
ring to African-Americans. Cathcart denies making
any of these statements.
On July 21, 1995, plaintiff brought this action under
the Civil Rights Act, MCL 37.2101 et seq., claiming
that her promotion denials and poor treatment were
due to national-origin discrimination and were in
retaliation for engaging in activities protected by the
act. Plaintiff originally claimed retaliatory discrimina-
tion based solely on the union grievance claiming
national-origin discrimination. She later amended her
complaint to allege that she was also retaliated against
for opposing sexual harassment. Defendant denied the
allegations and asserted that some of the allegations
were barred by the three-year period of limitations.
MCL 600.5805(1) and (10). Defendant moved for par-
tial summary disposition on that basis, but the trial
court denied the motion, citing the “continuing viola-
tions” doctrine adopted in Sumner.
Following a three-week trial, the jury found that
plaintiff was not discriminated against because of na-
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tional origin or color. However, the jury also found that
defendant had retaliated against plaintiff because she
“opposed sexual harassment or because she filed a
complaint or charge about being discriminated
against.” The jury awarded plaintiff $250,000 in dam-
ages.
Defendant filed a motion for judgment notwithstand-
ing the verdict or a new trial. The trial court noted that
“physical acts can convey a message better than words,”
and that plaintiff’s physical response to the touching by
Habkirk was sufficient to inform defendant that she
opposed Habkirk’s sexually harassing behavior. The
trial court further held that sufficient evidence was
presented to allow a reasonable juror to find a causal
connection between plaintiff’s striking Habkirk and her
failure to be promoted. Because the evidence supported
at least one of the retaliation theories, defendant’s
motion was denied. In an unpublished opinion, the
Court of Appeals affirmed the jury’s verdict. Unpub-
lished opinion per curiam of the Court of Appeals,
issued March 29, 2002 (Docket No. 223829). The Court
of Appeals held that the “continuing violations” doc-
trine allowed the introduction of factual allegations
going back more than three years before plaintiff filed
her lawsuit and thus the statute of limitations was not
a bar to the facts plaintiff presented to the jury. With
regard to the merits, the Court of Appeals held that
when plaintiff struck Habkirk, a reasonable juror could
have concluded that she “ ‘raise[d] the specter,’ ” quot-
ing Mitan v Neiman Marcus, 240 Mich App 679, 682;
613 NW2d 415 (2000), that she was opposing Habkirk’s
sexual harassment. The Court of Appeals also deter-
mined that there was sufficient evidence to allow a
reasonable juror to conclude that plaintiff established
both of her retaliation claims.
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After this Court directed the parties to present oral
argument on whether to grant leave to appeal or take
other action permitted by MCR 7.302(G)(1), 469 Mich
983 (2003), and having heard such argument, we
granted defendant’s application for leave to appeal,
directing briefing regarding whether the “continuing
violations” doctrine of Sumner was consistent with the
statute of limitations, MCL 600.5805(1). 469 Mich 1042
(2004).
II. STANDARD OF REVIEW
The denial of a motion for judgment notwithstanding
the verdict is subject to review de novo. Sniecinski v
Blue Cross & Blue Shield of Michigan, 469 Mich 124,
131; 666 NW2d 186 (2003). Reversal is permitted only if
the evidence, while viewed in a light most favorable to
plaintiff, fails to establish a claim as a matter of law.
Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305
(2000). Whether the “continuing violations” doctrine is
consistent with MCL 600.5805(1) and (10) is a question
of law that we review de novo. Jenkins v Patel, 471 Mich
158, 162; 684 NW2d 346 (2004).
III. ANALYSIS
The issue in this case is not whether plaintiff was
treated poorly or insensitively by defendant. Nor is it
whether defendant “retaliated” against plaintiff for her
conduct in hitting Habkirk. Instead, the issue is
whether defendant retaliated against plaintiff specifi-
cally for conduct on her part protected by the Civil
Rights Act. MCL 37.2701 provides, in pertinent part:
Two or more persons shall not conspire to, or a person
shall not:
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(a) Retaliate or discriminate against a person because
the person has opposed a violation of this act, or because
the person has made a charge, filed a complaint, testified,
assisted, or participated in an investigation, proceeding, or
hearing under this act.
To establish a prima facie case of retaliation, a
plaintiff must show:
(1) that he engaged in a protected activity; (2) that this
was known by the defendant; (3) that the defendant took
an employment action adverse to the plaintiff; and (4)
that there was a causal connection between the protected
activity and the adverse employment action. [DeFlaviis v
Lord & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661
(1997).]
A. RETALIATION BASED ON OPPOSITION
TO SEXUAL HARASSMENT
Plaintiff’s first theory is that defendant retaliated
against her because she opposed Habkirk’s sexual
harassment. At “around the same time” that plaintiff
allegedly observed sexually harassing behavior by
Habkirk toward female employees, she felt someone
touch her on the back, near her shoulder, while she
was walking near Habkirk’s office.
1
Plaintiff testified
that “I felt somebody’s hand touching me, and I turned
around and hit the person.” She noted further that “it
was a very automatic reaction on my part. I felt some-
body touching me, and I just turned around and swung
at him.”
1
Plaintiff argued at oral argument before this Court that it was
significant that she was passing a room Habkirk had just occupied,
because it demonstrates that she “knew” it was Habkirk who touched
her. However, she testified several times that she felt “somebody” touch
her back, that she “didn’t know who was in behind [her],” and that she
simply “swung at whoever it was behind [her].” (Emphasis added.)
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We conclude there is insufficient evidence for a juror
reasonably to conclude that by striking Habkirk under
these circumstances plaintiff was opposing sexual ha-
rassment, i.e., engaging in a “protected activity” under
the Civil Rights Act. First, plaintiff acknowledged that
Habkirk was not sexually harassing her at the time
she hit him so that it is difficult to view her conduct as
responsive to “protected activity.” This is underscored
by plaintiff’s acknowledgment that Habkirk had never
sexually harassed her. Second, there is no evidence
that, before this lawsuit, plaintiff ever sought to cast
her conduct in hitting Habkirk in terms of opposing
sexual harassment at defendant’s workplace. Such a
message was never communicated to the alleged vic-
tims of Habkirk’s sexual harassment or to fellow
employees, much less to Habkirk, management, union
representatives, or public agencies. Third, plaintiff
testified that she did not even know it was Habkirk
who touched her shoulder until after she struck him.
That is, because plaintiff in her “automatic” response
to the touching could just as likely have struck out at
any one of her coworkers as at Habkirk, it is difficult
to conclude that her action was somehow intended to
communicate a principled opposition to prior incidents
of supervisory misconduct. That is, there is simply no
connection here between cause—the alleged sexual
harassment—and effect—plaintiff’s striking Habkirk.
2
2
This lack of connection is underscored by plaintiff’s own testimony
that the incidents of sexual harassment that allegedly prompted her
opposition occurred only at “about the same time” that she struck
Habkirk. Although we acknowledge that a reasonable juror would be
entitled to conclude that this characterization is compatible with inci-
dents of sexual harassment preceding plaintiff’s hitting Habkirk, the lack
of a clear temporal relationship between the cause and the effect does not
well serve plaintiff’s argument.
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Moreover, although it is not necessary to our analysis
in this case, even if plaintiff were indisputably respond-
ing to past sexual harassment by hitting Habkirk, we
are not prepared to conclude that any response to
conduct prohibited by the Civil Rights Act, no matter
how excessive or inappropriate the response, including
assaultive behavior, falls within the act’s protections.
An employee is not immunized for any type of respon-
sive conduct, no matter how outrageous or dispropor-
tionate, simply because it is connected with opposition
to discrimination. Obviously, no employee would be
protected under the act from all “retaliation” by an
employer for criminal, or sabotaging, or destructive
activities simply because these occurred in response to
perceived employer discrimination. For purposes of
analysis under § 701(a), consideration must be given to
separating the motivation underlying an employee’s
conduct and the means by which such motivation is
translated into conduct.
Under these circumstances, we conclude that no
juror could have reasonably concluded that defendant
was engaged in a “protected activity” by opposing
sexual harassment when she hit Habkirk.
Even if the jury here were persuaded that plaintiff
was engaged in a “protected activity” by striking
Habkirk, she has failed to show that defendant knew
that she was engaged in such activity. Absent such a
showing, there could be no “retaliation” on the employ-
er’s part to anything within the protection of the Civil
Rights Act. While Habkirk obviously would have been
aware that plaintiff had struck him, there was nothing
inherent in this conduct that would have apprised him
that plaintiff was thereby opposing sexual harassment.
There is no evidence that Habkirk touched plaintiff at
that time (or any other time) in a way that was
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inappropriate; there is no evidence that plaintiff her-
self perceived that Habkirk touched her in a way that
was inappropriate; there is no evidence that Habkirk
reasonably could have discerned from the nature of
plaintiff’s response to his touching that she was com-
municating any message of opposition to sexual ha-
rassment; and there is no evidence that plaintiff at any
time explained the “significance” of her behavior to
Habkirk.
Nor is there anything else on the part of plaintiff
following this incident that would communicate to
anyone how she had been opposing sexual harassment
by striking Habkirk. To the extent that she failed to
communicate this supposed purpose to alleged victims
of Habkirk’s previous conduct, to coemployees, to
management, to union representatives, to public au-
thorities, or to Habkirk himself,
3
it is difficult to
understand how defendant could have been sufficiently
aware that plaintiff was engaged in “protected” activity
so as to be able to “retaliate” against her for such
conduct.
Under these circumstances, we conclude that no
juror could reasonably have concluded that defendant
was aware that plaintiff had been engaged in “protected
activity” by opposing sexual harassment when she hit
Habkirk.
Therefore, on the basis either that there is insuffi-
cient evidence that plaintiff was engaged in protected
activity
4
or that defendant could have been aware of
such activity, plaintiff has failed to establish a claim
3
Nor did plaintiff discuss Habkirk’s alleged inappropriate behavior
itself with any of these parties.
4
We do not agree with the Court of Appeals that plaintiff here has
raised any specter that she was engaged in opposition to sexual harass-
ment by her conduct.
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under the Civil Rights Act. To the extent that she has
failed to present sufficient evidence that she was en-
gaged in protected activity, she has failed to satisfy the
threshold requirement for coverage under § 701(a); to
the extent that she has failed to present sufficient
evidence that defendant could have been aware of such
activity, she could not have been the object of “retalia-
tion” under § 701(a).
5
B. RETALIATION BASED ON FILING A GRIEVANCE
Plaintiff’s second theory is that defendant retaliated
against her after she filed a grievance claiming
national-origin discrimination. After being refused a
promotion for the eleventh time, plaintiff filed a griev-
ance with her union in June 1987, claiming that she was
being denied promotions because of discrimination
based on national origin and color. Plaintiff claims that,
as a result of filing the grievance, she was denied
subsequent promotion opportunities and was subjected
to poor treatment in general by Cathcart and the First
North supervisors. With regard to this claim, it is
undisputed that plaintiff engaged in a protected activ-
ity, namely filing a grievance claiming a violation of the
Civil Rights Act. In addition, it is undisputed that
5
Had plaintiff presented sufficient evidence with regard to these
matters, i.e., shown both that she had been engaged in a protected
activity and that defendant had been aware of this, she would still have
been required to demonstrate that she suffered an adverse employment
action as a result of her engaging in the protected activity, i.e., that there
was some nexus or causal connection between the adverse employment
action and the protected activity. See DeFlaviis, supra; West v Gen Motors
Corp, 469 Mich 177, 186; 665 NW2d 468 (2003) (applying the antiretalia-
tion provisions of the Whistleblowers’ Protection Act, MCL 15.361 et seq.).
See also Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 617;
566 NW2d 571 (1997) (noting that “ ‘whistleblower statute[s] [are] analo-
gous to antiretaliation provisions of other employment discrimination
statutes...’”[citation omitted]).
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defendant was aware that plaintiff had engaged in this
activity. Plaintiff presented testimony that defendant’s
retaliatory conduct took place over an eleven-year pe-
riod, including acts that took place after she filed the
instant action on July 21, 1995. Defendant argues that,
pursuant to the three-year period of limitations, any
claim based on acts occurring before July 21, 1992, is
barred. MCL 600.5805(10). Despite the statute of limi-
tations, both the trial court and the Court of Appeals
permitted plaintiff to recover on the basis of untimely
acts, or acts occurring before July 21, 1992, under the
so-called “continuing violations” doctrine adopted in
Sumner. We conclude that, absent evidence of these
acts, there is insufficient evidence to establish a causal
link between the 1987 grievance and any retaliatory
acts occurring within the limitations period.
The “continuing violations” doctrine was first ad-
dressed by this Court in Sumner, supra at 510. We
began our analysis in that case by stating that it is
“appropriate... in discrimination cases [to] turn to
federal precedent for guidance in reaching our deci-
sion.” Id. at 525. We found particularly helpful the
considerations relied on by federal courts in nullifying
the statute of limitations in Title VII of the Civil Rights
Act of 1964. 42 USC 2000e et seq. We described these as
follows:
First, [the Civil Rights Act] is a remedial statute whose
purpose is to root out discrimination and make injured
parties whole. Second, employees are generally lay people,
who do not know that they must act quickly or risk losing
their cause of action. An employee may fear reprisal by the
employer, or may refer the matter to a union, which may
not take any action within the limitation period. Employ-
ees may also delay filing their complaints in the hope of
internal resolution or simply to give the employer a second
chance. Third, and most importantly, many discriminatory
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acts occur in such a manner that it is difficult to precisely
define when they took place. One might say that they
unfold rather than occur. [Sumner, supra at 525-526].
[6]
Sumner also found persuasive the United States
Supreme Court’s decision in United Air Lines, Inc v
Evans, 431 US 553; 97 S Ct 1885; 52 L Ed 2d 571 (1977).
In Evans, the United States Supreme Court for the first
time addressed the “continuing violations” doctrine
that had been created by the lower federal courts in
order to overcome the statute of limitations.
7
The
employee in Evans, a flight attendant with United Air
Lines, was fired in 1968 on the basis of a “no marriage”
rule that was later found to violate Title VII. She was
rehired by the airline in 1972, but was not credited for
her pre-1968 service and, therefore, was treated as a
new hire for seniority purposes. The employee argued
that the airline’s refusal to recognize her past service
constituted a “present effect to the past illegal act and
6
While it is not necessary to our analysis in this case, we note that the
operation of our statute of limitations at least partially undercuts the
significance of the factors cited by Sumner. In Michigan, an employee
does not have to “act quickly or risk losing their cause of action” under
the state Civil Rights Act but has up to three years to assert a claim in
contrast to the 180 days allowed under Title VII. This extended period
would also presumably accord an employee sufficient time to seek
“internal resolution or simply to give the employer a second chance”
without endangering her claim. Further, at least some reasonable observ-
ers might presume the three-year limitations period accords an employee
sufficient time to determine that a discriminatory act has truly “un-
folded.”
7
See, e.g., King v Georgia Power Co, 295 F Supp 943, 946 (ND Ga,
1968) (holding that “[t]he failure to allege that the complaint was filed
with the EEOC [Equal Employment Opportunity Commission] within 90
days of the alleged unfair employment practices is of no importance, for
the violations of Title VII alleged in the complaint may be construed as
‘continuing’ acts”); Bartmess v Drewrys USA, Inc, 444 F2d 1186, 1188
(CA 7, 1971) (holding that “the ninety day limitation is no bar when a
continuing practice of discrimination is being challenged rather than a
single, isolated discriminatory act”).
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therefore perpetuates the consequences of forbidden
discrimination.” Id. at 557. Therefore, she alleged that
the “continuing violations” doctrine should be applied
to allow her to obtain relief for the now-untimely 1968
firing. However, the United States Supreme Court held
that merely demonstrating a “present effect to a past
act of discrimination” is insufficient to create a continu-
ing violation. Id. at 558. “[T]he emphasis should not be
placed on mere continuity; the critical question is
whether any present violation exists.” Id. Therefore, in
order to support a discrimination claim on a “continu-
ing violations” theory, an employee must first demon-
strate the existence of a present violation. Since the
employee in Evans was unable to demonstrate any
violation within the time limitations of Title VII, her
claim was barred as untimely.
Sumner found the federal precedent persuasive and
held that the “continuing violations” doctrine applied
to claims under both the Civil Rights Act and the
Handicappers’ Civil Rights Act, MCL 37.1101 et seq.
This Court adopted the Evans requirement that an
employee must first demonstrate that a violation has
taken place within the limitations period. Sumner,
supra at 536. Once an employee has demonstrated
this, he or she must then demonstrate either that his
or her employer has engaged in a “policy of discrimi-
nation” or has engaged in “a series of allegedly dis-
criminatory acts which are sufficiently related so as to
constitute a pattern....”Id. at 528. There are three
factors to consider in determining whether an em-
ployer has been engaged in a series of allegedly dis-
criminatory acts:
“The first is subject matter. Do the alleged acts involve
the same type of discrimination, tending to connect them in
a continuing violation? The second is frequency. Are the
alleged acts recurring (e.g., a biweekly paycheck) or more
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in the nature of an isolated work assignment or employ-
ment decision? The third factor, perhaps of most impor-
tance, is degree of permanence. Does the act have the
degree of permanence which should trigger an employee’s
awareness of and duty to assert his or her rights, or which
should indicate to the employee that the continued exist-
ence of the adverse consequences of the act is to be
expected without being dependent on a continuing intent
to discriminate?” [Sumner, supra at 538, quoting Berry v
LSU Bd of Supervisors, 715 F2d 971, 981 (CA 5, 1983).]
Whatever the merits of the policy crafted by Sumner,
it bears little relationship to the actual language of the
relevant statute of limitations, MCL 600.5805, and
MCL 600.5827. Fundamental canons of statutory inter-
pretation require us to discern and give effect to the
Legislature’s intent as expressed by the language of its
statutes. DiBenedetto v West Shore Hosp, 461 Mich 394,
402; 605 NW2d 300 (2000). If such language is unam-
biguous, as most such language is, Klapp v United Ins
Group Agency, Inc, 468 Mich 459; 663 NW2d 447
(2003), “we presume that the Legislature intended the
meaning clearly expressed—no further judicial con-
struction is required or permitted, and the statute must
be enforced as written.” DiBenedetto, supra at 402.
MCL 600.5805 provides, in pertinent part:
(1) 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 com-
menced within the periods of time prescribed by this
section.
***
(10) The period of limitations is 3 years after the time of
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the death or injury for all other actions to recover damages
for the death of a person, or for injury to a person or
property.
MCL 600.5827 provides that a “claim accrues at the
time the wrong upon which the claim is based was
done regardless of the time when damage results.”
Thus, § 5805 requires a plaintiff to commence an
action within three years of each adverse employment
act by a defendant. Section 5805 does not say that a
claim outside this three-year period can be revived if it
is somehow “sufficiently related” to injuries occurring
within the limitations period. Rather, the statute sim-
ply states that a plaintiff “shall not” bring a claim for
injuries outside the limitations period. Nothing in
these provisions permits a plaintiff to recover for
injuries outside the limitations period when they are
susceptible to being characterized as “continuing vio-
lations.” To allow recovery for such claims is simply to
extend the limitations period beyond that which was
expressly established by the Legislature.
8
8
The dissent is utterly deconstructionist in its attitude toward statutes
of limitations, which is its right but which attitude nonetheless bears no
relationship to that of the Legislature. We are told by the dissent, for
example, that we often cannot determine when discriminatory acts have
taken place, when civil rights claims have accrued or manifested them-
selves, whether an act of discrimination is “discrete or nondiscrete,” and
that even discrete acts of discrimination may not be readily identifiable.
Post at 298. Doubtless, there are difficult evidentiary issues in the realm
of civil rights as in most other realms of the law. Such difficulties,
however, do not constitute authorization for ignoring the express direc-
tion of the Legislature that violations of the Civil Rights Act are to be
subject to a period of limitations, one that is 2
1
/2 years longer than the
federal period of limitations. The dissent is obviously correct that the cost
of a statute of limitations is that some acts of discrimination will go
unredressed. This is the cost of any statute of limitations, but nonethe-
less a cost that the Legislature apparently believes is outweighed by the
benefits of setting a deadline on stale claims. While the dissent may be
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An additional flaw in Sumner’s reasoning is its
unduly heavy reliance on federal case law, particularly
Evans. While federal precedent may often be useful as
guidance in this Court’s interpretation of laws with
federal analogues, such precedent cannot be allowed to
rewrite Michigan law. The persuasiveness of federal
precedent can only be considered after the statutory
differences between Michigan and federal law have
been fully assessed, and, of course, even when this has
been done and language in state statutes is compared
to similar language in federal statutes, federal prece-
dent remains only as persuasive as the quality of its
analysis. Here, not only does the “continuing viola-
tions” doctrine in Michigan conflict with the require-
ments of §§ 5805 and 5827, but, at least arguably, the
federal doctrine is given affirmative support by lan-
guage in Title VII that is absent from the Civil Rights
Act. In 1972, Congress amended Title VII to extend
the period within which an employee must file a
complaint with the Equal Employment Opportunity
Commission from 90 days to 180 days. At the same
time, Congress imposed a two-year limit on back pay
awards. Thus, Congress implicitly recognized an em-
ployee’s right to recover damages for discriminatory
acts beyond those that occurred within the 180-day
period. Sumner noted that such amendment consti-
tuted an “implicit endorsement of the continuing
violation theory,” because Congress allowed employees
to recover damages for discriminatory acts beyond
those that occurred within the 180-day period. Sum-
ner, supra at 526. However, Sumner failed to note that
there is no corresponding provision in Michigan law
correct that the “continuing violations” doctrine “better protects” the
victims of discrimination, post at 299, and that it is a “highly workable
and preferable” doctrine, post at 300, it is not the doctrine chosen by the
Legislature.
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that even implicitly endorses the “continuing viola-
tions” doctrine. Thus, rather than supporting Sum-
ner’s holding, the existence of the federal statute leads
to the opposite conclusion—that the “continuing vio-
lations” doctrine is contrary to Michigan law and,
therefore, that federal precedent should not have been
imported into Michigan law.
9
Therefore, we overrule Sumner and hold that a
person must file a claim under the Civil Rights Act
within three years of the date his or her cause of action
accrues, as required by § 5805(10).
10
That is, “three
years” means three years. An employee is not permitted
to bring a lawsuit for employment acts that accrue
beyond this period, because the Legislature has deter-
9
We note that the United States Supreme Court recently rejected the
“continuing violations” doctrine for Title VII claims with regard to
discrete acts because it is contrary to the statute of limitations. Nat’l R
Passenger Corp v Morgan, 536 US 101; 122 S Ct 2061; 153 L Ed 2d 106
(2002).
10
Although we concur with the dissent that the doctrine of stare decisis
constitutes “ ‘the preferred course because it promotes the evenhanded,
predictable, and consistent development of legal principles, fosters reli-
ance on judicial decisions, and contributes to the actual and perceived
integrity of the judicial process,’ ” post at 297, quoting Robinson v
Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), so also are these values
promoted by the separation of powers doctrine, which holds that it is the
responsibility of the judiciary to respect the intentions of the Legislature
by giving faithful meaning to the words of the law. In this case, we
conclude that the values identified in Robinson, and invoked by the
dissent, are substantially better served by restoring the law to its written
meaning rather than maintaining the judicial amendments of Sumner.
Not only, in our judgment, are laws generally made more “evenhanded,
predictable and consistent” when their words mean what they plainly
say, and when all litigants are subject to the equal application of such
words, but laws are also made more accessible to the people when each of
them is able to read the law and thereby understand his or her rights and
responsibilities. When the words of the law bear little or no relationship
to what courts say the law means (as in Sumner), then the law
increasingly becomes the exclusive province of lawyers and judges.
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mined that such claims should not be permitted.
11
Whether or not the “continuing violations” exception of
Sumner constitutes a useful improvement in the law,
there is no basis for this Court to construct such an
amendment.
12
11
The principal difference between the majority and the dissent in
approaching the interpretative process is that the majority is content to
rely on the actual words used by the Legislature while the dissent insists
on ascribing its own “purpose” to the act, post at 302 n 6, and
interpreting the act consistent with this statement of purpose, no
matter what barriers to this end have been inconveniently created by
the Legislature in failing to use words that serve the dissent’s self-
stated “purpose.” While it can scarcely be gainsaid that the purpose of
the Civil Rights Act is “to root out discrimination and make injured
parties somewhat whole,” id., that purpose must be understood in the
context of a competing “purpose” to ensure that relief under the act be
subject to a statute of limitations. While the dissent apparently views a
statute of limitations as compromising the act’s “purpose,” i.e., its own
characterization of such purpose, we believe that it is better understood
as requiring a more precise and fine-tuned statement of the act’s
purpose, one predicated on the intentions of the Legislature rather than
on the preferences of the dissent. The words of any statute can be
effectively undermined by a sufficiently generalized statement of “pur-
pose” that is unmoored in the actual language of the law.
12
This Court has rejected similar attempts to modify statutes of
limitations. See Boyle v Gen Motors Corp, 468 Mich 226, 231-232; 661
NW2d 557 (2003) (rejecting application of the discovery rule to extend
the statute of limitations in fraud cases); Secura Ins Co v Auto-Owners
Ins Co, 461 Mich 382, 387-388; 605 NW2d 308 (2000) (holding that the
doctrine of judicial tolling cannot be applied in the absence of statutory
language permitting such tolling); Magee v DaimlerChrysler Corp, 472
Mich 108, 113; 693 NW2d 166 (2005) (noting that the “continuing
violations” doctrine “renders nugatory the period of limitations estab-
lished by the Legislature in MCL 600.5805[10]”). While the judicial
temptation to relax a statute of limitations may be understandable in
the context of a lawsuit in which a plaintiff, alleging that he or she has
suffered a serious wrong, has been denied his or her day in court, the
costs involved in terms of undermining the clarity and predictability of
the law, allowing stale complaints to proceed, and injecting uncertainty
into a myriad of legal relationships, are considerable, not to mention
that a court that does so would be exercising “legislative,” not “judi-
cial,” power. See Const 1963, art 3, § 2; art 4, § 1; art 6, § 1.
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Accordingly, plaintiff’s claims of retaliatory discrimi-
nation arising from acts occurring before June 21, 1992,
are untimely and cannot be maintained. Without these
untimely acts, plaintiff’s claim is limited to acts occur-
ring five to eleven years
13
after she filed her grievance.
In light of this gap, there is insufficient evidence to
allow a reasonable juror to find a causal link between
the 1987 grievance and the discriminatory acts falling
within the limitations period.
Furthermore, in order to show causation in a retal-
iatory discrimination case, “[p]laintiff must show some-
thing more than merely a coincidence in time between
protected activity and adverse employment action.”
West v Gen Motors Corp, 469 Mich 177, 186; 665 NW2d
468 (2003). There is no evidence to suggest any distinc-
tion between the promotion denial that occurred while
plaintiff was in Cathcart’s chain of command and those
denials involving supervisors who had no knowledge of
plaintiff’s grievance. Five supervisors, including four
who were directly responsible for postgrievance promo-
tion decisions involving plaintiff, testified that they
were unaware that plaintiff had filed any grievance.
Plaintiff failed to introduce any evidence to contradict
that testimony. However, despite the First North super-
visors’ lack of knowledge about the grievance, they
treated her requests for promotions in the same man-
ner that Cathcart did, i.e., they denied them. Because
these supervisors were not aware of the grievance, they
could not have “retaliated” against plaintiff for its
filing. Further, there is no evidence that plaintiff’s job
qualifications changed in any meaningful way in the
13
The first actionable claim in 1992 is five years after plaintiff’s 1987
national-origin grievance and plaintiff claims that she was treated poorly
up to the date of the 1998 trial, which was eleven years after the
grievance was filed.
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time between the denial by Cathcart and the denials by
the other supervisors at First North. Thus, a juror could
not reasonably conclude that the reasons behind the
denials within First North were related to the griev-
ance.
Plaintiff has failed to produce evidence affirmatively
showing, as is her burden, that the reasons underlying
the promotion denial involving Cathcart were any dif-
ferent from the denials involving supervisors who were
unaware that plaintiff had filed a grievance. West, supra
at 183-184; DeFlaviis, supra. It appears that both the
trial court and the Court of Appeals identified a “causal
connection” between the grievance and the promotion
denials simply on the basis of timing—that is, because
the denials occurred after the grievance, there must be
a functional relationship. This is the kind of post hoc,
ergo propter hoc reasoning rejected in West. We reject
such reasoning in this case as well.
Similarly, plaintiff failed to establish that she was
treated poorly by Cathcart and the First North super-
visors as a result of the grievance. Plaintiff was unable
to establish that Cathcart’s treatment of plaintiff was
distinguishable in any way from her treatment by
supervisors who were unaware of the grievance.
14
First, plaintiff claimed that Cathcart treated her
differently from other employees by refusing to give her
a key to the facility. However, her supervisor at First
North, who denied any knowledge of the grievance,
similarly refused to give plaintiff a key. Second, plaintiff
claimed that her work was subjected to greater scrutiny
14
In fact, Cathcart testified that he did not remember, and would not
have been troubled by, the grievance. Further, plaintiff admitted that,
during the period of alleged poor treatment, Cathcart intervened on her
behalf when another supervisor sought to change her work hours.
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by Cathcart than that of her coworkers. However, she
also claimed that another First North supervisor, who is
no longer an employee of defendant and did not testify,
wrote her several memos a day “unfairly attacking” her
performance. Finally, both plaintiff and the Court of
Appeals found it noteworthy that she was moved to a
“disgusting” office after the transfer to First North.
However, the supervisor who assigned her that office
testified that he was unaware of the grievance and had
informed her that it was only a temporary situation.
Under these circumstances, we conclude that no juror
could have reasonably concluded that plaintiff was
subjected to poor treatment because she had been
engaged in “protected activity” by filing a grievance
claiming national-origin discrimination.
Finally, plaintiff has failed to demonstrate that Cath-
cart’s alleged derogatory comments based on national
origin establish any causal connection between the
grievance and the adverse employment action. In order
to establish such a connection, plaintiff needed to show
that the comments demonstrated Cathcart’s discrimi-
natory animus toward her and that, as a result of such
animus, Cathcart retaliated against her for filing the
grievance.
Plaintiff claims that Cathcart made a racially deroga-
tory statement regarding Indians.
15
Plaintiff testified
that Cathcart responded to the news that her son had
15
Cathcart allegedly made another racially derogatory statement re-
garding Indians in 1989; however, it is outside the limitations period. We
also note that Cathcart allegedly made two statements concerning
African-Americans. These seem to have little bearing in this case because
plaintiff is not African-American. Further, one of these statements
occurred at least two years before plaintiff’s grievance regarding
national-origin discrimination and the other occurred approximately
nine years afterward.
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been admitted to a medical program by stating, “I don’t
know how many Indian doctors we need.”
16
This state-
ment does not pertain in any way to the promotion
process; neither is it directed toward plaintiff in terms
of evaluating her work performance or threatening any
future treatment of her. See Sniecinski, supra at 136 n
8. However inappropriate or ill-informed this state-
ment, it is better characterized, in our judgment, as a
“stray comment” than as reflective of any “pattern of
biased comments....”
17
Id.
More to the point, for the same reason that plaintiff
here has failed to demonstrate that Cathcart’s treat-
ment of her did not vary in any appreciable way from
her treatment by other supervisors—concerning
whom there is no evidence of even such “stray
comments”—we do not believe that plaintiff has dem-
onstrated that she was subjected to denials of promo-
tions or otherwise poor treatment by defendant on the
basis of her grievance. Again, we reiterate that the
question is not the propriety or seemliness of Cath-
cart’s statements, but merely whether such state-
ments establish a causal link between plaintiff’s griev-
ance and her subsequent treatment by defendant.
In light of insufficient evidence that plaintiff was
not promoted or otherwise treated poorly because she
engaged in a “protected activity,” i.e., having filed a
grievance against defendant alleging national-origin
discrimination, plaintiff has failed to establish a retali-
ation claim under the Civil Rights Act.
16
While plaintiff did not indicate when this statement was made, a
juror could infer that it was made sometime between 1992 and 1995.
17
This conclusion is underscored by the fact that the jury, after
learning of all these statements, concluded that plaintiff had not been
discriminated against on the basis of national origin.
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IV. CONCLUSION
We conclude that the “continuing violations” doctrine
is contrary to the language of § 5805 and hold, therefore,
that the doctrine has no continued place in the jurispru-
dence of this state. Accordingly, Sumner is overruled.
Further, we conclude that there is insufficient evidence
to support plaintiff’s claims of retaliation based on her
opposition to sexual harassment and those acts by her
employer following the grievance that were within the
statutory limitations period. Accordingly, we reverse the
judgment of the Court of Appeals and remand the matter
to the trial court for entry of judgment in favor of
defendant.
T
AYLOR
, C.J., and C
ORRIGAN
and Y
OUNG
, JJ., concurred
with M
ARKMAN,
J.
C
AVANAGH,
J. (dissenting ). I agree with the majori-
ty’s conclusion that there was insufficient evidence of
retaliation based on plaintiff’s alleged opposition to
the sexual harassment of her coworkers.
I disagree with the majority’s conclusion that plaintiff
presented insufficient evidence that she was retaliated
against for filing a grievance. Moreover, I disagree with
the majority’s decision to overrule Sumner v Goodyear
Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986),
and abolish the continuing violations doctrine. Finally, I
disagree with the majority’s rationale that because the
continuing violations doctrine no longer applies, evi-
dence of prior acts must necessarily be excluded from
consideration. Accordingly, I must respectfully dissent.
I. PLAINTIFF PRESENTED SUFFICIENT EVIDENCE OF
RETALIATION FOR FILING A GRIEVANCE
The Michigan Civil Rights Act “is aimed at ‘the
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prejudices and biases’ borne against persons because of
their membership in a certain class, and seeks to
eliminate the effects of offensive or demeaning stereo-
types, prejudices, and biases.” MillervCAMuer Corp,
420 Mich 355, 363; 362 NW2d 650 (1984) (citations
omitted). To this end, the Civil Rights Act, MCL
37.2701, provides in pertinent part:
Two or more persons shall not conspire to, or a person
shall not:
(a) Retaliate or discriminate against a person because
the person has opposed a violation of this act, or because
the person has made a charge, filed a complaint, testified,
assisted, or participated in an investigation, proceeding, or
hearing under this act.
The Court of Appeals has observed that the purposes of
the retaliation provisions of the act are “to protect
access to the machinery available to seek redress for
civil rights violations and to protect operation of that
machinery once it has been engaged.” DeFlaviis v Lord
& Taylor, Inc, 223 Mich App 432, 440; 566 NW2d 661
(1997) (citation omitted).
This Court has yet to formally delineate the prima
facie elements of a retaliation claim under the Michigan
Civil Rights Act. The Court of Appeals, however, has
relied on federal precedent to formulate its own test.
Today, the majority adopts the Court of Appeals test as
its own. See ante at 273. Thus, to establish a prima facie
case of unlawful retaliation under the Civil Rights Act,
a plaintiff must show: “(1) that he engaged in a pro-
tected activity; (2) that this was known by the defen-
dant; (3) that the defendant took an employment action
adverse to the plaintiff; and (4) that there was a causal
connection between the protected activity and the ad-
verse employment action.” DeFlaviis, supra at 436,
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citing Polk v Yellow Freight Sys, Inc, 876 F2d 527, 531
(CA 6, 1989), Booker v Brown & Williamson Tobacco
Co, Inc, 879 F2d 1304, 1310 (CA 6, 1989), and Kroll v
Disney Store, Inc, 899 F Supp 344, 348 (ED Mich, 1995).
Using these elements, I would conclude that the trial
court properly denied defendant’s motion for judgment
notwithstanding the verdict (JNOV) on plaintiff’s claim
that she was retaliated against for filing a grievance
against her supervisor.
As noted by the majority, the first two elements of the
test are satisfied because plaintiff engaged in protected
activity and defendant was aware that plaintiff had
engaged in this activity. See ante at 277-278. Moreover,
I would conclude that sufficient evidence was presented
on the third and fourth elements; namely, there was
sufficient evidence that defendant took adverse employ-
ment action against plaintiff and there was a causal
connection between the filing of the grievance and the
adverse employment action. With regard to these ele-
ments, I find the Court of Appeals characterization of
the evidence persuasive. The Court of Appeals noted:
[P]laintiff sufficiently established the elements of a
retaliation claim by way of her evidence that (1) plaintiff
filed a grievance alleging racial discrimination in June
1987; (2) Cathcart, a supervisor, knew about the grievance;
(3) after filing the grievance, plaintiff failed to receive the
next promotion that she sought, posted in December 1988,
despite being qualified for the position; (4) plaintiff failed
to receive seven total promotions between 1989 and 1997,
despite being qualified for the positions; (5) individuals less
qualified than plaintiff received promotions while plaintiff
did not; (6) in 1994, plaintiff was transferred to a window-
less office from which she could hear noises emanating
from the adjacent bathroom, while persons more senior
[sic] to plaintiff received better offices; (7) in 1996, Cath-
cart made a statement disparaging to blacks; (8) Cathcart
made another comment disparaging to Indians; (9) Cath-
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cart reprimanded plaintiff but not others for minor infrac-
tions; (10) Cathcart ignored plaintiff in staff meetings and
treated her poorly in the hallways; (11) in 1984 or 1985,
Cathcart used the word “n——-” in referring to blacks; and
(12) Cathcart remained in plaintiff’s chain of command
throughout the years. [Unpublished opinion per curiam of
the Court of Appeals, issued March 29, 2002 (Docket No.
223829).]
[1]
A motion for JNOV should be granted only if the
evidence, viewed in the light most favorable to the
nonmoving party, fails to establish a claim as a matter of
law. Orzel v Scott Drug Co, 449 Mich 550, 557-558; 537
NW2d 208 (1995). This Court reviews de novo a trial
court’s decision to grant or deny a motion for JNOV, and
likewise reviews the evidence and all reasonable infer-
ences in the light most favorable to the nonmoving party.
Craig v Oakwood Hosp, 471 Mich 67, 77; 684 NW2d 296
(2004). Under this standard, I cannot say that the
evidence detailed by the Court of Appeals fails to estab-
lish a claim of retaliation as a matter of law. Moreover,
while reasonable jurors could reach different conclu-
sions, I cannot say that no reasonable juror could con-
clude that plaintiff was retaliated against for filing a
grievance. Thus, I would hold that the trial court prop-
erly denied defendant’s motion for JNO V on the retali-
ation theory.
2
1
I disagree with the majority’s contention that these statements should
be considered mere stray remarks. Moreover, I find wholly unpersuasive
the majority’s logic that the derogatory statements concerning African-
Americans are irrelevant because plaintiff is Indian.
2
As noted previously, I tend to agree with the majority that plaintiff
presented insufficient evidence that she was retaliated against for her
alleged opposition to the sexual harassment of her coworkers. However, I
disagree with the majority’s election to decide, in dictum, whether
responsive physical behavior constitutes protected activity. Given the
majority’s ultimate conclusion, this portion of the majority’s opinion is
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II. SUMNER AND THE CONTINUING VIOLATIONS DOCTRINE
The Michigan Civil Rights Act contains no internal
statute of limitations. Nonetheless, this Court has ap-
plied the general three-year limitations period set forth
in MCL 600.5805 to claims brought under the act. See,
e.g., Mair v Consumers Power Co, 419 Mich 74; 348
NW2d 256 (1984). However, in recognition that such
claims tend to “unfold rather than occur,” this Court
unanimously adopted a narrow exception to the statute
of limitations—the continuing violations doctrine.
Sumner, supra at 526. The continuing violations doc-
trine dictates that unlawful acts that occur beyond the
period of limitations are actionable, as long as the acts
are sufficiently related to constitute a pattern and one
of the acts occurred within the period of limitations.
As noted by the Sumner Court, the federal courts
developed the continuing violations doctrine as a nar-
row exception to Title VII’s short limitations period.
This Court detailed the reasons for the exception,
reasons that still ring true today:
These courts expressed concern with a number of fac-
tors which they felt militated against a strict application of
the limitation requirement. First, Title VII is a remedial
statute whose purpose is to root out discrimination and
make injured parties whole. Second, employees are gener-
ally lay people, who do not know that they must act quickly
or risk losing their cause of action. An employee may fear
reprisal by the employer, or may refer the matter to a
union, which may not take any action within the limitation
period. Employees may also delay filing their complaints in
the hope of internal resolution or simply to give the
employer a second chance. Third, and most importantly,
many discriminatory acts occur in such a manner that it is
unnecessary. Moreover, although this issue was raised by the Attorney
General as amicus curiae, this issue was neither raised below nor
specifically briefed by the parties.
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difficult to precisely define when they took place. One
might say that they unfold rather than occur. [Id.at
525-526.]
In light of the United States Supreme Court’s deci-
sion in United Air Lines, Inc v Evans, 431 US 553; 97 S
Ct 1885; 52 L Ed 2d 571 (1977), this Court observed
that the continuing violations doctrine generally con-
sists of two subtheories:
The first subtheory involves allegations that an em-
ployer has engaged in a continuous policy of discrimina-
tion. In such a case, the plaintiff is alleging that “he is
challenging not just discriminatory conduct which has
affected him, but also, or alternatively, the underlying
employment system which has harmed or which threatens
to harm him and other members of his class.”
The second subtheory, the “continuing course of con-
duct” or “series of events” situation is relevant where an
employee challenges a series of allegedly discriminatory
acts which are sufficiently related so as to constitute a
pattern, only one of which occurred within the limitation
period. [Sumner, supra at 528 (citations omitted).]
Here, plaintiff is alleging that defendant retaliated
against her through a continuing course of conduct.
Thus, the second subtheory applies to this case.
In determining whether a continuing course of con-
duct exists under the second subtheory, this Court
adopted the approach set forth by the Fifth Circuit
Court of Appeals:
“The first is subject matter. Do the alleged acts involve
the same type of discrimination, tending to connect them in
a continuing violation? The second is frequency. Are the
alleged acts recurring (e.g., a biweekly paycheck) or more
in the nature of an isolated work assignment or employ-
ment decision? The third factor, perhaps of most impor-
tance, is degree of permanence. Does the act have the
degree of permanence which should trigger an employee’s
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awareness of and duty to assert his or her rights, or which
should indicate to the employee that the continued exist-
ence of the adverse consequences of the act is to be
expected without being dependent on a continuing intent
to discriminate?” [Sumner, supra at 538, quoting Berry v
LSU Bd of Supervisors, 715 F2d 971, 981 (CA 5, 1983).]
Under these circumstances, I would conclude that
the continuing violations doctrine applies to plaintiff’s
retaliation claim. First, the acts involve the same type
of continuing violation: repeated denials of promotions
and disparate treatment in retaliation for engaging in
protected activity. Second, defendant’s acts occurred
with frequency: plaintiff was consistently denied every
promotion she applied for from the date the grievance
was filed. Finally, on these facts, the consistent denials
of promotions and disparate treatment did not have the
degree of permanence that would necessarily preclude
application of the continuing violations doctrine. Plain-
tiff did not suspect that the impetus for the adverse
actions was the filing of the grievance until much later.
While retaliatory conduct may be considered a discrete
act under some circumstances, the facts of this case
demonstrate that retaliation is often just as subtle and
hard to detect as discrimination. Thus, I would apply
the continuing violations doctrine and conclude that all
the adverse employment actions taken by defendant
against plaintiff are actionable.
III. THE MAJORITY’S DECISION TO OVERRULE SUMNER
The majority reasons that Sumner and the continu-
ing violations doctrine have no place in Michigan law
because they bear little relationship to the actual lan-
guage of MCL 600.5805 and 600.5827. Rather, MCL
600.5805 “requires a plaintiff to commence an action
within three years of each adverse employment act by a
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defendant.... Nothing in these provisions permits a
plaintiff to recover for injuries outside the limitations
period when they are susceptible to being characterized
as ‘continuing violations.’ ” Ante at 282. Moreover, the
majority concludes that Sumner “unduly” relied on
federal case law. Id. at 283. According to the majority,
the continuing violations doctrine is arguably given
support by the language of Title VII, unlike the lan-
guage of Michigan’s statutory provisions. Additionally,
Congress amended Title VII to impose a two-year limit
on recovering back pay and, thus, implicitly endorsed
the doctrine. The majority posits that there is no
corresponding provision in Michigan law that even
implicitly endorses the continuing violations doctrine.
Accordingly, the majority overrules Sumner and holds
that a person must file a claim under the Civil Rights
Act within three years of the date his or her cause of
action accrues.
“[T]his Court has consistently opined that, absent
the rarest circumstances, we should remain faithful to
established precedent.” Brown v Manistee Co Rd
Comm, 452 Mich 354, 365; 550 NW2d 215 (1996). The
doctrine of stare decisis is “ ‘the preferred course
because it promotes the evenhanded, predictable, and
consistent development of legal principles, fosters re-
liance on judicial decisions, and contributes to the
actual and perceived integrity of the judicial pro-
cess.’ ” Robinson v Detroit, 462 Mich 439, 463; 613
NW2d 307 (2000) (citation omitted). The current
Court has detailed four principles to consider before
established precedent is overruled: “(1) whether the
earlier case was wrongly decided,
[3]
(2) whether the
decision defies ‘practical workability,’ (3) whether reli-
3
Is not this “principle” a given? As I have noted previously, it would
seem strange indeed for a “correctly decided” decision to be trashed.
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ance interests would work an undue hardship, and (4)
whether changes in the law or facts no longer justify
the questioned decision.” Pohutski v City of Allen
Park, 465 Mich 675, 694; 641 NW2d 219 (2002). In my
view, none of these factors weighs in favor of overrul-
ing Sumner and abolishing the continuing violations
doctrine.
First, I cannot say that Sumner was wrongly de-
cided. Like its federal counterpart, the Civil Rights Act
“is a remedial statute whose purpose is to root out
discrimination and make injured parties whole.” Sum-
ner, supra at 525. Because the Civil Rights Act is
remedial in nature, it should be liberally construed.
Kassab v Michigan Basic Prop Ins Ass’n, 441 Mich
433, 467; 491 NW2d 545 (1992) (C
AVANAGH,
C.J., dis-
senting); see also Kassab, supra at 451 (M
ALLETT,
J.,
dissenting).
In Sumner, supra at 526, this Court astutely ob-
served that “many discriminatory acts occur in such a
manner that it is difficult to precisely define when they
took place.” Indeed, determining when a claim accrues
or occurs is surprisingly difficult because violations of
the act may not manifest themselves except at the end
of a lengthy period. Whether a particular act is discrete
or nondiscrete often depends on the circumstances of
the individual case. And even so-called discrete acts
may not always be readily identifiable. In fact, the
United States Supreme Court recently left open the
question whether discriminatory employment actions
are subject to some sort of discovery rule. The Court
noted that
[t]here may be circumstances where it will be difficult to
determine when the time period should begin to run. One
issue that may arise in such circumstances is whether the
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time begins to run when the injury occurs as opposed to
when the injury reasonably should have been discovered.
But this case presents no occasion to resolve that issue.
[Nat’l R Passenger Corp v Morgan, 536 US 101, 114 n 7;
122 S Ct 2061; 153 L Ed 2d 106 (2002).]
The continuing violations doctrine remains a salu-
tary tool because, as a practical matter, it may be
difficult to determine when a violation of the act was
committed or when a civil rights claim accrues for
purposes of MCL 600.5827.
4
Simply stated, a victim of
discrimination may not be aware that he or she is being
or has been discriminated against until after the period
of limitations has expired. The continuing violations
doctrine better protects the victim and does not reflex-
ively give the discriminating party the benefit of judicial
hindsight. However, the Sumner Court was careful to
explain that not every prior act will be actionable under
the continuing violations doctrine. Even though dis-
criminatory acts may be difficult to ascertain, the
continuing violations doctrine will not apply if there is
not a pattern, the acts do not involve the same subject
matter, the acts do not occur with frequency, or the
plaintiff should have been aware that his or her rights
under the act were being violated. In my view, Sumner
remains a sound decision because it seeks to ameliorate
the effects of strictly applying the limitations period
where it is difficult to ascertain exactly when a civil
rights claim accrues.
4
MCL 600.5827 provides:
Except as otherwise expressly provided, the period of limita-
tions runs from the time the claim accrues. The claim accrues at
the time provided in sections 5829 to 5838, and in cases not
covered by these sections the claim accrues at the time the wrong
upon which the claim is based was done regardless of the time
when damage results.
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Second, Sumner does not defy practical workability.
As noted above, just the opposite is true. Because it is
often extremely difficult to ascertain when a claim
accrues, application of the continuing violations doc-
trine proceeds on a case-by-case basis. The doctrine is
generally analyzed under two distinct subtheories and
this Court has set forth a clear three-factor test to
assist courts in determining whether a continuing
course of discriminatory conduct exists. Sumner, su-
pra at 538. In my view, Sumner remains a highly
workable and preferable decision.
Third, overruling Sumner would work an undue
hardship because of the reliance interests placed on
that decision. Sumner has been entrenched in this
state’s jurisprudence for nearly twenty years. Further,
as a practical matter, the continuing violations doc-
trine encourages lay employees, who may not be
supremely confident that their rights are being vio-
lated, to seek internal resolution of their suspected
complaints. Needless to say, such a course of action is
advantageous to all persons involved. In reliance on
Sumner, an employee could rest assured that possible
violations of the Civil Rights Act would not become
stale while attempting to resolve the complaint inter-
nally. Moreover, employees’ fear of reprisals by em-
ployers was greatly diminished because of Sumner’s
safeguards. Because of Sumner, both employees and
employers were relieved of the burden of being on
“litigation watch” at the first sign of trouble. Employ-
ees and employers have relied on Sumner for quite
some time and conducted their affairs and operations
accordingly.
In my view, affirming the principles announced in
Sumner would work far less of a hardship than over-
ruling that decision. Indeed, opponents of the continu-
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ing violations doctrine should be careful what they wish
for. Overruling Sumner may actually encourage employ-
ees to run to court at the first sign of trouble. This will
put a strain on everyone involved in the process—the
employee, the employer, and the courts. Such inherent
tension was alleviated by Sumner and the continuing
violations doctrine. Thus, because the citizens of this
state have justifiably relied on Sumner for nearly two
decades and overruling that decision would unnecessar-
ily disrupt these reliance interests, I would refrain from
overruling Sumner.
Fourth and finally, there has been no change in the
law or facts that has cast doubt on the wisdom of
Sumner. Indeed, this Court has consistently cited and
suggested that Sumner’s reliance on federal precedent
was warranted. See, e.g., Chambers v Trettco, Inc, 463
Mich 297, 313; 614 NW2d 910 (2000) (“We are many
times guided in our interpretation of the Michigan Civil
Rights Act by federal interpretations of its counterpart
federal statute. See, e.g., Sumner v Goodyear Tire &
Rubber Co, 427 Mich 505, 525; 398 NW2d 368 (1986).”).
5
Thus, there has been no seismic shift, except for the
makeup of this Court, that would warrant overruling
Sumner and abolishing the continuing violations doc-
trine.
In sum, I disagree with the majority’s decision to
overrule Sumner. I believe that the continuing viola-
5
See also Radtke v Everett, 442 Mich 368, 381-382; 501 NW2d 155 (1993)
(“While this Court is not compelled to follow federal precedent or guide-
lines in interpreting Michigan law, this Court may, ‘as we have done in the
past in discrimination cases, turn to federal precedent for guidance in
reaching our decision.’ Sumner v Goodyear Tire & Rubber Co, 427 Mich
505, 525; 398 NW2d 368 (1986).”); Stevens v McLouth Steel Products Corp,
433 Mich 365, 375; 446 NW2d 95 (1989) (“This Court has frequently
drawn from federal court precedent in interpreting other aspects of the
Civil Rights Act. See, e.g., Sumner v Goodyear Tire & Rubber Co, 427 Mich
505, 525; 398 NW2d 368 (1986)....”).
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tions doctrine remains a venerable approach to analyz-
ing claims brought under the Michigan Civil Rights
Act.
6
IV. THE MAJORITY’S APPLICATION OF ITS NEW RULE
IS FUNDAMENTALLY FLAWED
Even assuming the continuing violations doctrine
no longer pertains, the majority’s additional reasoning
cannot withstand scrutiny. Under the continuing vio-
lations doctrine, unlawful acts that occur beyond the
period of limitations are actionable, as long as the acts
are sufficiently related to constitute a pattern and one
of the acts occurred within the period of limitations.
The majority properly acknowledges this point of law.
7
6
The majority posits that my conclusion to reaffirm the principles
announced in Sumner stems from my preference to interpret the Civil
Rights Act in harmony with my “own,” “self-stated” “characterization”
of the purpose of the act. Ante at 285 n 11. As detailed in Sumner, supra
at 525, the purpose of the act is “to root out discrimination and make
injured parties whole.” In the same footnote, however, the majority
acknowledges that Sumner’s stated purpose of the act is undeniable.
Nonetheless, the majority concludes that this undeniable purpose must
heed another “competing” purpose–“to ensure that relief under the act
be subject to a statute of limitations.” Ante at 285 n 11. Accordingly, the
majority would “fine-tune” the act’s undeniable purpose and restate the
“precise” purpose of the Civil Rights Act as follows: to intermittently
root out discrimination and make injured parties somewhat whole. I
prefer the undeniable purpose previously articulated by this Court
because it is more consistent with the Legislature’s intent. While the
majority claims that the words of any statute can be undermined by
considering the statute’s purpose, today’s decision demonstrates that
the opposite proposition is equally true. Namely, a remedial statute can
be tortured by a preference to ignore, not effectuate, the L egislature’s
purpose in enacting the statute.
7
“Nothing in these provisions permits a plaintiff to recover for injuries
outside the limitations period when they are susceptible to being char-
acterized as ‘continuing violations.’ To allow recovery for such claims is
simply to extend the limitations period beyond that which was expressly
established by the Legislature.” Ante at 282 (emphasis added). “An
employee is not permitted to bring a lawsuit for employment acts that
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Thus, the natural consequence of overruling Sumner
and abolishing the continuing violations doctrine is that
acts occurring beyond the period of limitations are no
longer actionable. Yet the majority goes even further
and reasons that evidence of acts occurring outside the
period of limitations must be excluded.
8
Such a conclu-
sion is fundamentally flawed.
For example, in Morgan, supra at 105, the United
Stated Supreme Court held that Title VII “precludes
recovery for discrete acts of discrimination or retalia-
tion that occur outside the statutory time period.”
9
While I disagree with the Morgan Court’s holding, it is
important to observe the Court’s subsequent rationale.
In light of its holding, the Morgan Court noted, “As we
have held, however, this time period for filing a charge
is subject to equitable doctrines such as tolling or
estoppel.” Id. at 113. Importantly, the Court also rea-
soned, “Nor does the statute bar an employee from using
accrue beyond this period, because the Legislature has determined that
such claims should not be permitted.” Id. at 284-285 (emphasis added).
8
“[W]e conclude that, once evidence of acts that occurred outside the
statute of limitations period is removed from consideration, there was
insufficient evidence of retaliation based on either plaintiff’s alleged
opposition to sexual harassment or her filing of a grievance....”Ante at
266 (emphasis added). “We conclude that, absent evidence of these acts,
there is insufficient evidence to establish a causal link between the 1987
grievance and any retaliatory acts occurring within the limitations
period.” Id. at 278 (emphasis added).
9
However, I must note that the Morgan Court held that the continuing
violations doctrine still applies to hostile work environment claims. “We
also hold that consideration of the entire scope of a hostile work
environment claim, including behavior alleged outside the statutory time
period, is permissible for the purposes of assessing liability,solongasany
act contributing to that hostile work environment takes place within the
statutory time period.” Id. (emphasis added). Here, the majority does not
attempt to exercise the same degree of prudence and reason. Rather, the
majority simply concludes that all claims brought under the Civil Rights
Act, whether premised on discrete or nondiscrete acts, are subject to the
statute of limitations.
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the prior acts as background evidence in support of a
timely claim.” Id. (emphasis added). This rationale
comports with the natural consequences of abolishing
the continuing violations doctrine: prior acts outside
the period of limitations are not actionable (i.e., cannot
serve as the basis for imposing liability), but these acts
may still be used as background evidence to support a
timely claim. Thus, the majority’s conclusion that acts
occurring outside the limitations period must be “re-
moved from consideration” is unacceptable. Ante at
266.
I disagree with the majority’s stated conclusion that
evidence of acts occurring outside the limitations period
must be “removed from consideration” because, as a
practical matter, such evidence often must be consid-
ered, as the majority’s rationale confirms. While cer-
tainly not a novel approach, I believe that it is entirely
proper to examine relevant evidence even though such
evidence may itself not be actionable. Stated differently,
the decision whether to admit certain evidence is within
the trial court’s sound discretion and will not be dis-
turbed absent an abuse of discretion. See, e.g., People v
McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003).
Therefore, even though so-called untimely acts may not
be actionable under the majority’s approach, such acts
may be considered as relevant background evidence in
most instances. In my view, the majority misunder-
stands the consequences of overruling Sumner.
In response, the majority essentially argues that the
United States Supreme Court in Morgan attempted to
resurrect the continuing violations doctrine after hav-
ing overruled the doctrine.” The majority moans that
consideration of background evidence would allow an
employee to indirectly recover for past acts. The major-
ity, transfixed with destroying every shred of the
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additional protections afforded by the continuing viola-
tions doctrine, has lost sight of the bigger picture. The
majority admittedly fails to see the practical difference
between the Sumner rule and the logic employed by the
Morgan Court. I would simply urge reexamination of
these opinions because the differences are quite clear.
The United States Supreme Court concluded that the
result of abolishing the continuing violations doctrine is
that untimely claims are not actionable, period. Inex-
plicably, however, the majority feels compelled to con-
clude that any evidence that may have once constituted
a claim under the Civil Rights Act, but is now barred by
the statute of limitations, may never be admitted. But,
again, this is not the majority’s decision to make. If the
trial court determines that evidence of the now time-
barred claim is relevant to the timely claim, such
evidence may be admitted as background evidence, but
may not serve as the basis for any damage award.
Sometimes the time-barred claim will not be relevant
and the trial court may conclude that such background
evidence is unnecessary. In other instances, the trial
court may exercise its sound discretion and admit such
evidence. The majority, however, oversteps its bounds
when it concludes that such evidence may never be
relevant and, therefore, may never be considered. I do
not know how the Morgan decision could make this
point of law any clearer.
In sum, I believe that the majority’s resolve to
dismantle the continuing violations doctrine has led it
to an illogical result. The majority is essentially argu-
ing that, in Morgan, the United States Supreme Court
attempted to resurrect the continuing violations doc-
trine after having overruled the doctrine. This argu-
ment makes no sense. R ather, I believe that the
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Morgan Court properly acknowledged that overruling
the continuing violations doctrine means that un-
timely claims are not actionable, but, in some in-
stances, the trial court may determine that evidence of
these untimely claims may be admissible to provide
necessary context.
V. CONCLUSION
I would hold that plaintiff presented sufficient evi-
dence for a reasonable juror to conclude that she was
retaliated against for filing her grievance. Moreover, I
would affirm the principles announced in Sumner, and
apply the continuing violations doctrine to plaintiff’s
claim of retaliation based on the grievance theory.
Finally, even if I were to agree with the majority that
the continuing violations doctrine is no longer viable,
the natural consequence of abolishing that doctrine is
not to exclude untimely acts from consideration.
Rather, abolishing the continuing violations doctrine
simply means that untimely acts are not actionable.
10
K
ELLY
, J., concurred with C
AVANAGH
,J.
W
EAVER,
J. (dissenting). I agree with the reasoning
and conclusions of Justice C
AVANAGH
’s dissenting opin-
ion. This Court unanimously adopted the continuing
violations doctrine in Sumner v Goodyear Tire & Rub-
ber Co, 427 Mich 505; 398 NW2d 368 (1986). Justice
B
RICKLEY
authored Sumner, and was joined by Justices
C
AVANAGH
,L
EVIN
, and A
RCHER
. Justice R
ILEY
, joined by
Justice B
OYLE
, concurred in the adoption of the doc-
trine, but disagreed with the majority’s application of it
to the facts of the case. Chief Justice W
ILLIAMS
,ina
10
In light of the majority’s resolution of this case, I too do not reach the
other issues raised on appeal or in plaintiff’s cross-appeal.
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separate opinion, also concurred in the adoption of the
doctrine. I am not persuaded that the adoption of the
doctrine was unwarranted or that, after nineteen years,
the doctrine should be abandoned.
K
ELLY
, J., concurred with W
EAVER
,J.
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PEOPLE v WILLIAMS
Docket No. 127115. Decided May 11, 2005. On application by the
prosecution for leave to appeal, the Supreme Court, in lieu of
granting leave, reversed the judgment of the Court of Appeals and
remanded the case to the circuit court for reinstatement of the
defendant’s convictions and sentences.
John L. Williams was convicted in a bench trial in the Cheboygan
Circuit Court, Scott L. Pavlich, J., of possession with intent to
deliver fifty grams or more but less than 225 grams of a substance
containing cocaine and possession with intent to deliver mari-
juana. The defendant appealed, challenging the trial court’s denial
of his motion to suppress evidence discovered during the search of
his vehicle after an initial traffic stop for speeding. The Court of
Appeals, B
ANDSTRA
,P.J., and F
ITZGERALD
and H
OEKSTRA
, JJ., reversed
the convictions on the basis that the police officer exceeded the
scope of the initial stop by asking the defendant to step out of his
vehicle and answer questions about his travel plans while acting
on a “hunch” and with no reasonable suspicion of criminal activity.
Unpublished opinion per curiam, issued August 5, 2004 (Docket
No. 249853). The prosecution sought leave to appeal.
In an opinion per curiam, signed by Chief Justice T
AYLOR
, and
Justices C
AVANAGH,
W
EAVER,
C
ORRIGAN,
Y
OUNG
, and M
ARKMAN
,the
Supreme Court held:
The detention that occurred in this matter was reasonable and
did not exceed the proper scope of a traffic stop. Because the
defendant’s Fourth Amendment rights were not violated as a
result of the detention, the consent he gave for the search of his
vehicle was valid. The judgment of the Court of Appeals must be
reversed and the case must be remanded to the trial court for
reinstatement of the defendant’s convictions and sentences.
1. The reasonableness of a search or seizure depends on
whether the police officer’s action was justified at its inception,
and whether it was reasonably related in scope to the circum-
stances that justified the interference in the first place. The
original stop in this case was based on probable cause and was
reasonable. The subsequent detention was reasonably related in
scope to the circumstances of this case.
308 472 M
ICH
308 [May
2. A traffic stop is reasonable as long as the driver is detained
only for the purpose of allowing a police officer to ask reasonable
questions concerning the alleged violation of the law and its
context for a reasonable period. The determination of reasonable-
ness must take into account the evolving circumstances with
which the officer is faced. When, as here, a traffic stop reveals, or
unveils, a new set of circumstances, an officer is justified in
extending the detention long enough to resolve the suspicion
raised. The traffic stop in this case was reasonable in both its scope
and its duration. The trial court properly denied the defendant’s
motion to suppress the evidence.
Reversed and remanded to the circuit court.
Justice K
ELLY
, dissenting, stated that the trial court erred in
denying the defendant’s motion to suppress the evidence provided
by the trooper. The trooper’s questioning in this case exceeded the
permissible legal scope of inquiry regarding a speeding offense and
was not reasonably related to the speeding offense. The answers to
the trooper’s questions did not give rise to an articulable suspicion
that criminal activity was afoot. The decision of the Court of
Appeals should be affirmed on the basis that the trooper had
insufficient grounds for pursuing an investigatory stop and con-
ducted his investigation merely on the basis of a hunch.
1. S
EARCHES AND
S
EIZURES —
R
EASONABLENESS
.
The reasonableness of a search or seizure depends on whether the
police officer’s action was justified at its inception and whether it
was reasonably related in scope to the circumstances that justified
the interference in the first place.
2. S
EARCHES AND
S
EIZURES —
T
RAFFIC
S
TOPS
.
A traffic stop is reasonable as long as the driver is detained only for
the purpose of allowing a police officer to ask reasonable questions
concerning the alleged violation of the law and its context for a
reasonable period; the determination of reasonableness must take
into account the evolving circumstances faced by the officer; an
officer is justified in extending the detention long enough to
resolve any suspicions raised when a traffic stop reveals, or
unveils, a new set of circumstances.
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, Catherine Castagne, Prosecuting At-
torney, and Eric Restuccia, Assistant Attorney General,
for the people.
2005] P
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309
Patrick & Kwiatkowski, PLLC (by Aaron J.
Gauthier), for the defendant.
P
ER
C
URIAM
. This case concerns the constitutionality
of a traffic stop. After stopping defendant’s vehicle for
speeding, a state trooper asked defendant routine ques-
tions about his travel plans and obtained his consent to
search the vehicle. Cocaine and marijuana were discov-
ered during the search. Defendant argues, and the
Court of Appeals determined, that his consent was
invalid because his detention exceeded the proper scope
of a traffic stop, in violation of the Fourth Amendment.
The Court of Appeals held that the trial court should
have suppressed the fruits of the search.
1
We conclude that the detention was reasonable and
did not exceed the proper scope of a traffic stop. Because
defendant’s Fourth Amendment rights were not vio-
lated as a result of the detention, his consent was valid.
We reverse the judgment of the Court of Appeals and
remand this case to the trial court for reinstatement of
defendant’s convictions and sentences.
I. BACKGROUND
On February 14, 2003, Michigan State Police Trooper
Jason Varoni observed defendant’s vehicle traveling
eighty-eight miles an hour on I-75 in Cheboygan
County, where the posted speed limit was seventy miles
an hour. He stopped defendant’s vehicle. Upon request,
defendant produced his driver’s license. Trooper Varoni
told defendant why he had been stopped and asked
defendant where he was going. Defendant answered
that he was going to Cheboygan to visit friends and that
he was staying at the Holiday Inn.
1
Unpublished opinion per curiam, issued August 5, 2004 (Docket No.
249853).
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Because Cheboygan does not have a Holiday Inn,
Trooper Varoni was suspicious of this response and
asked defendant to step from the vehicle to answer
additional questions. Defendant did so and, in response
to further questioning, explained that he was coming
from Detroit and that he intended to stay in Cheboygan
for two days. No luggage was visible in the vehicle’s
passenger compartment; when asked about this, defen-
dant said that he brought no luggage on the trip.
Trooper Varoni asked defendant if he had “been in
trouble before,” and defendant disclosed that he had
previously been arrested for a marijuana-related of-
fense.
Trooper Varoni then questioned the vehicle’s other
two occupants about their own travel plans, but their
inconsistent responses only increased his suspicions.
2
This questioning was completed about five to eight
minutes after the traffic stop occurred. Trooper Varoni
then informed defendant that he had received conflict-
ing stories from the occupants of the vehicle. He asked
for defendant’s consent to search the vehicle, and
defendant agreed.
Trooper Varoni contacted the Tuscarora Township
canine unit, and asked that a drug-detection dog be sent
to the scene. The canine unit arrived within three
minutes and the dog signaled the presence of narcotics
in the backseat of the vehicle. Trooper Varoni did not
find any narcotics in that area, and he asked defendant
for consent to search the vehicle’s trunk. Defendant
initially agreed, but then withdrew his consent. A
2
The front-seat passenger claimed that he did not know where they
were going or how long they would be gone; he confirmed that he had no
luggage. The backseat passenger, defendant’s wife, told Trooper Varoni
that they were going shopping in Cheboygan and then Detroit. She said
that they had made no arrangements for accommodations.
2005] P
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warrant was obtained, and the police discovered sub-
stances that appeared to be marijuana and cocaine.
3
Trooper Varoni wrote defendant a citation for speeding
and two drug-related felonies, and arrested him.
Defendant was charged with possession with intent
to deliver fifty grams or more but less than 225
grams of a substance containing cocaine, MCL
333.7401(2)(a)(iii), and possession with intent to deliver
marijuana, MCL 333.7401(2)(d)(iii). He moved to sup-
press evidence of the controlled substances seized from
his vehicle, asserting that the search
4
and seizure were
predicated on an illegal detention. The trial court
denied the motion. It concluded that the statements
made by the occupants of the vehicle raised reasonable
suspicions in Trooper Varoni’s mind. It further con-
cluded that the delay caused by the additional question-
ing was not unreasonable under the circumstances
presented.
Defendant was convicted as charged following a
bench trial, and was sentenced to consecutive prison
terms of seven to twenty years (for the cocaine convic-
tion) and two to four years (for the marijuana convic-
tion).
Defendant appealed, challenging the trial court’s
denial of his motion to suppress, and the Court of
Appeals reversed. Concluding that the initial traffic
stop had been lawful, the Court then determined that
the trooper “unlawfully exceeded the initial stop when
he asked defendant to step out of the vehicle” to answer
questions about his travel plans while the officer pos-
3
This was confirmed through later testing.
4
Defendant disputes the validity of the initial search of the car; he does
not separately challenge the validity of the later search of the trunk,
which was conducted after Trooper Varoni obtained a search warrant and
which led to the discovery of the controlled substances.
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sessed only a “generalized hunch” that criminal activity
was afoot. The trooper’s questions had no relevance to
the traffic stop, the Court held, and he had no reason-
able suspicion of criminal activity to warrant asking the
questions. The Court concluded that Trooper Varoni
was acting on a “hunch,” which is insufficient grounds
for pursuing an investigatory stop. For these reasons, it
reversed the trial court’s ruling on the motion to
suppress.
The prosecutor applied to this Court for leave to
appeal.
II. STANDARD OF REVIEW
This Court reviews a trial court’s findings at a
suppression hearing for clear error. People v Jenkins,
472 Mich 26, 31; 691 NW2d 759 (2005); People v Custer,
465 Mich 319, 325-326; 630 NW2d 870 (2001). But the
application of constitutional standards regarding
searches and seizures to essentially uncontested facts is
entitled to less deference; for this reason, we review de
novo the trial court’s ultimate ruling on the motion to
suppress. Jenkins, supra; People v Oliver, 464 Mich 184,
191-192; 627 NW2d 297 (2001).
III. ANALYSIS
We review here the Court of Appeals determination
that the traffic stop escalated into an illegal detention
in violation of the Fourth Amendment, rendering de-
fendant’s eventual consent to search a nullity.
The Fourth Amendment of the United States Consti-
tution provides:
The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
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issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
[5]
In assessing the protections created by this amend-
ment, the United States Supreme Court has “long held
that the ‘touchstone of the Fourth Amendment is
reasonableness.’ ” Ohio v Robinette, 519 US 33, 39; 117
S Ct 417; 136 L Ed 2d 347 (1996) (citation omitted).
Reasonableness is measured by examining the totality
of the circumstances. Id. Because of “ ‘endless varia-
tions in the facts and circumstances’ ” implicating the
Fourth Amendment, reasonableness is a fact-intensive
inquiry that does not lend itself to resolution through
the application of bright-line rules. Id., quoting Florida
v Royer, 460 US 491, 506; 103 S Ct 1319; 75 L Ed 2d 229
(1983).
In analyzing the propriety of the detention here, we
apply the standard set forth in Terry v Ohio, 392 US 1;
88 S Ct 1868; 20 L Ed 2d 889 (1968).
6
Under Terry, the
reasonableness of a search or seizure depends on
“whether the officer’s action was justified at its incep-
tion, and whether it was reasonably related in scope to
the circumstances which justified the interference in
the first place.”
7
Terry, supra at 20.
In this case, there is no dispute that the initial traffic
stop was occasioned by defendant’s speeding, and was
therefore based on probable cause and was reasonable.
5
US Const, Am IV.
6
Knowles v Iowa, 525 US 113, 117; 119 S Ct 484; 142 L Ed 2d 492
(1998) (despite existence of probable cause, a common traffic stop is more
analogous to limited detention authorized by Terry than to an arrest)
(quoting Berkemer v McCarty, 468 US 420, 439-440; 104 S Ct 3138; 82 L
Ed 2d 317 [1984]).
7
The reviewing court considers the objective facts relating to the
traffic stop; the officer’s subjective state of mind is not relevant to the
determination whether the detention was proper. Oliver, supra at 199.
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Robinette, supra at 38. Under Terry, the remaining
question is whether the subsequent detention was
“reasonably related in scope to the circumstances” of
this case. Terry, supra at 20. We conclude that it was.
As a threshold matter, the Court of Appeals erred
when it agreed with defendant that the purpose of this
traffic stop was fully effectuated when defendant
handed Trooper Varoni his driver’s license and other
requested paperwork. This view of the essential nature
of the traffic stop imposes an unreasonable restriction
on an officer’s ability to investigate a violation of the
law.
A traffic stop is reasonable as long as the driver is
detained only for the purpose of allowing an officer to
ask reasonable questions concerning the violation of
law and its context for a reasonable period.
8
The deter-
mination whether a traffic stop is reasonable must
necessarily take into account the evolving circum-
stances with which the officer is faced. As we observed
in People v Burrell, 417 Mich 439, 453; 339 NW2d 403
(1983), when a traffic stop reveals a new set of circum-
stances, an officer is justified in extending the detention
long enough to resolve the suspicion raised.
9
8
There is considerable discretion allowed an officer charged with
enforcing the traffic laws as a member of the executive branch of
government. This discretion can be exercised effectively only if an officer
is allowed to ask reasonable questions concerning the context of a traffic
offense. To deny an officer the ability to ask reasonable questions,
reasonably circumscribed in scope and duration, is to deny the officer the
ability to reasonably exercise the officer’s discretion.
9
Put another way, when considering whether a detention is reasonably
related in scope to the circumstances of the case, a reviewing court must
consider whether “the officer’s subsequent actions were fairly responsive
to the emerging tableau—the circumstances originally warranting the
stop, informed by what occurred, and what the officer learned, as the stop
progressed.” United States v Chhien, 266 F3d 1, 6 (CA 1, 2001).
2005] P
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It is no violation of the Fourth Amendment for an
officer to ask reasonable questions in order to obtain
additional information about the underlying offense
and the circumstances leading to its commission. For
example, in addition to asking for the necessary identi-
fication and paperwork, an officer may also ask ques-
tions relating to the reason for the stop, including
questions about the driver’s destination and travel
plans. United States v Williams, 271 F3d 1262, 1267
(CA 10, 2001).
10
Specifically, an officer may ask about
the “purpose and itinerary of a driver’s trip during the
traffic stop” in order to determine whether a “violation
has taken place, and if so, whether a citation or warning
should be issued or an arrest made.” United States v
Brigham, 382 F3d 500, 508 (CA 5, 2004). Such inquiries
are “within the scope of investigation attendant to the
traffic stop.” Id.
Implicit in the authority to ask these questions is the
authority to ask follow-up questions when the initial
answers given are suspicious.
11
Likewise, there is no
constitutional prohibition against asking similar ques-
tions of any passengers in the vehicle.
12
Simply put, the Fourth Amendment does not impose
a “one size fits all” rule of police investigation,
13
much
less one that restricts the officer to informing the driver
of the nature of the infraction, and subsequently ob-
10
See also United States v Givan, 320 F3d 452, 459 (CA 3, 2003);
United States v Linkous, 285 F3d 716, 719 (CA 8, 2002); United States v
Hill, 195 F3d 258, 268 (CA 6, 1999); United States v Johnson, 58 F3d 356,
357 (CA 8, 1995).
11
United States v Johnson, 58 F3d 356, 357-358 (CA 8, 1995).
12
Linkous, supra at 719 (an officer may question the occupants of a
vehicle to verify information provided by the driver).
13
See Robinette, supra at 39 (“In applying this test we have consis-
tently eschewed bright-line rules, instead emphasizing the fact-specific
nature of the reasonableness inquiry.”).
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taining the information necessary to fill out a citation.
The Fourth Amendment requires only that the deten-
tion be reasonable—that is, that it be reasonably re-
stricted in light of all the facts available to the officer.
See Robinette, supra at 39.
That standard was satisfied here. Trooper Varoni
introduced himself to defendant, explained the purpose
of the stop, and obtained the necessary identification
and paperwork in order to complete the citation for the
civil infraction of speeding. In response to a routine
question about his travel plans, defendant provided
Trooper Varoni with an explanation that was implau-
sible.
14
Therefore, even before Trooper Varoni could
resolve the matter of defendant’s violation of the traffic
laws, he was presented with additional suspicious cir-
cumstances that warranted further investigation.
Trooper Varoni acted on these new suspicions by
asking defendant additional questions about his travel
plans and whether he had been in trouble before, and by
briefly speaking with the vehicle’s occupants. None of
the answers provided by defendant or his companions
allayed Trooper Varoni’s suspicions. Moreover, the en-
tire encounter took only five to eight minutes, at which
time Trooper Varoni requested and obtained defen-
dant’s consent to search the vehicle.
After reviewing the facts and evaluating the totality
of the circumstances, we conclude that the traffic stop
here was reasonable in both scope and duration.
It follows that defendant was not being unlawfully
detained when he was asked to consent to the search.
14
The Court of Appeals stated that there were “plausible” innocent
explanations for the statements made by the vehicle occupants. But the
fact that such explanations can be imagined does not mean that Trooper
Varoni acted unreasonably in seeking to resolve the inconsistencies. See
Oliver, supra at 204.
2005] P
EOPLE V
W
ILLIAMS
317
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Consent must be freely and voluntarily given in order to
be valid. People v Borchard-Ruhland, 460 Mich 278,
294; 597 NW2d 1 (1999); Royer, supra at 497. An
investigatory stop, as occurred in this case, is not so
inherently coercive that it renders involuntary consent
given during the stop. Royer, supra at 501, 502; People v
Acoff, 220 Mich App 396, 400; 559 NW2d 103 (1996).
There is no suggestion that defendant was coerced into
giving his consent.
15
It is unnecessary to consider whether Trooper Varoni
had an independent, reasonable, and articulable suspi-
cion that defendant was involved with narcotics, or
even whether the Fourth Amendment might impose
such a requirement under different circumstances.
16
The detention and search here were reasonable be-
cause: (1) the initial traffic stop was lawful, (2) Trooper
Varoni’s questions about defendant’s travel plans, and
his limited follow-up, were reasonable and did not
exceed the proper scope and duration of the initial
traffic stop, and (3) after Trooper Varoni concluded his
questioning, defendant voluntarily consented to the
search of the vehicle. All in all, rather than amounting
to a constitutional violation, we find that Trooper
Varoni’s work in this case amounted to excellent police
work. The trial court properly denied defendant’s mo-
15
Defendant’s own actions show that he understood that he could
refuse the request. He later declined to consent to a search of the trunk.
16
One aspect of an officer’s ability to conduct a drug search without
independent, articulable, and reasonable suspicion was addressed in
Illinois v Caballes, 543 US ___; 125 S Ct 834; 160 L Ed 2d 842 (2005).
Employing the reasonableness standard of Robinette, the United States
Supreme Court held that, as long as the traffic stop is not prolonged, an
officer may use a drug-detection dog to sniff a vehicle during the stop,
even if the defendant does not consent and the officer lacks reasonable,
articulable suspicion that the occupants of the vehicle are involved with
narcotics.
318 472 M
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tion to suppress evidence of the controlled substances
found during the search of his vehicle.
IV. CONCLUSION
Because the detention was reasonable and did not
constitute a violation of defendant’s Fourth Amend-
ment rights, we reverse the judgment of the Court of
Appeals and remand this case to the trial court for
reinstatement of defendant’s convictions and sen-
tences. MCR 7.302(G)(1).
T
AYLOR
, C.J., and C
AVANAGH
,W
EAVER,
C
ORRIGAN,
Y
OUNG
, and M
ARKMAN
, JJ., concurred.
K
ELLY,
J. (dissenting). I agree with the Court of
Appeals that the trial court erred by denying defen-
dant’s motions to suppress and to strike the evidence
provided by Trooper Jason Varoni. The trooper’s ques-
tions of defendant were not reasonably related to the
purpose of the traffic stop. Furthermore, defendant’s
statement to the trooper that he was staying at a
Holiday Inn in Cheboygan could not evoke a reasonable
suspicion that he was engaged in criminal activity.
Therefore, I would affirm the decision of the Court of
Appeals.
TERRY v OHIO
Traffic stops are subject to the test established by the
United States Supreme Court in Terry v Ohio, 392 US 1,
20; 88 S Ct 1868; 20 L Ed 2d 889 (1968). According to
Terry, an officer’s investigation of a traffic stop must be
“reasonably related in scope to the circumstances which
justified the interference in the first place.” Id. A
defendant may not be detained even momentarily with-
out reasonable, objective grounds for doing so. Florida
2005] P
EOPLE V
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319
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,J.
v Royer, 460 US 491, 498; 103 S Ct 1319; 75 L Ed 2d 229
(1983). The scope of the detention must be carefully
tailored to the justification for the stop. Id. at 500.
Considering the totality of the circumstances, I
would find that the officer’s questioning in this case
exceeded the permissible legal scope of inquiry regard-
ing a speeding offense. It was not reasonably related to
defendant’s violation of the speed limit. Furthermore, I
believe that the answers to the officer’s questions did
not give rise to an articulable suspicion that criminal
activity was afoot.
SCOPE OF THE STOP
Trooper Varoni detained defendant for driving in
excess of the speed limit. An additional reason for the
stop was that his vehicle had a cracked windshield.
There was no reasonable articulable suspicion of any
other offense.
Neither the United States Supreme Court nor the
Michigan Supreme Court has ever ruled that question-
ing beyond the scope of a traffic stop is allowed. The
Court of Appeals decision in this case accurately reflects
Michigan law. However, with this decision, the Court
changes Michigan law to enlarge the permissible scope
of an inquiry by a police officer during a routine traffic
stop.
PERMISSIBLE QUESTIONING
The questions “Why the rush?” and “Where are you
headed in such a hurry?” from a police officer may be
reasonably related to a traffic stop for speeding. They
seek an admission of speeding.
But questions about a driver’s destination, purpose,
length of stay, and with whom he will be staying are
320 472 M
ICH
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ELLY
,J.
meant to inquire into issues beyond a speeding offense.
Not only have they nothing to do with a speeding
offense, they are not helpful to a police officer’s decision
to release the driver or to issue a citation or warning.
1
Ante at 316.
On direct examination, Trooper Varoni testified that
he asked defendant where he was going and that
defendant offered that “he was going into Cheboygan to
visit friends and that he was staying at the Holiday
Inn.” However, it is apparent from the cross-
examination of Trooper Varoni that defendant did not
volunteer this information to the trooper in response to
a general question. Instead, as Trooper Varoni admit-
ted:
A. Uh, it’s—it’s my practice to ask more than just for
those three pieces of uh, documentation [referring to
license, registration, and insurance paperwork].
***
Q. All right. And then you proceeded to further this
investigation by questioning Mr. Williams as to um, issues
of where he was going and what he was going to do when he
was there, is that correct?
A. Yes.
Q. And these questions weren’t relevant to how fast he
was going, were they?
A. I-I ask everybody I stop where they’re going to and
where they are coming from.
***
1
The majority cites several federal circuit court of appeals cases for the
proposition that questions about travel plans are reasonably related to
the scope of a traffic stop. We are not bound by these decisions, and, as
noted above, I find their logic defective.
2005] P
EOPLE V
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321
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Q. My question was; the question about where he’s
going and how long he is staying is not relevant to how fast
he’s going and the purpose for your stop; is it?
A. That’s correct.
Without question, the trooper asked defendant ques-
tions that exceeded the scope of legal inquiry regarding
a speeding offense. The trooper evoked an answer
regarding the location where defendant was planning to
spend the night. He also asked defendant if defendant
had any prior narcotics convictions. Trooper Varoni
testified:
Um, I asked him if he had been in trouble before and uh,
he told me that he had. I asked if it had any—you know,
related narcotics [sic], if he’d ever been arrested for any-
thing to do with drugs and he told me that he had. I asked
him for what and he said marijuana.
This question likewise was unrelated to the purpose of
the traffic stop. Once defendant stated that he was
staying at a Holiday Inn in Cheboygan in response to
a question about where he would spend the night, the
purpose of the investigation changed. Trooper Varoni’s
subsequent questions, having nothing to do with the
scope of the traffic stop, changed the fundamental
nature of the stop. What began as a routine traffic stop
became an all-encompassing criminal investigation.
Trooper Varoni admitted it:
Q. Your purpose of the initial stop had seized [sic]; you
weren’t investigating speeding violation [sic] anymore
were you?
A. No, no I wasn’t.
REASONABLE SUSPICION OF CRIMINAL ACTIVITY
Even if Trooper Varoni’s questions had been appro-
priate for a traffic stop, a second pertinent concern for
322 472 M
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308 [May
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,J.
the Court is whether defendant’s answer provided a
reasonable suspicion that criminal activity was occur-
ring.
Trooper Varoni essentially admitted that he contin-
ued questioning the occupants of the vehicle on the
basis of a hunch that something “wasn’t quite right.”
Q. [Mr. Kwiatkowsi]: Is it possible that he was in error
as to where the Holiday Inn was?
A. [Trooper Varoni]: That’s possible, yes.
Q. And the fact that someone misstates where they’re
staying um, you’re saying that made you suspicious of him,
is that right?
A. Uh, you—you can call it what you want, I don’t know
about suspicious but, yeah, it made me think twice about
the statements he made.
Q. All right, so you weren’t suspicious?
A. Yeah, I-I questioned his statements.
Q. Well, now when you’re talking about suspicion you
understand suspicious of something, right? Of some activ-
ity that’s unlawful, right?
A. Yes, that could be.
Q. Well, what was it about that response that you were
suspicious of that was unlawful?
A. I wasn’t suspicious of any particular thing that was
unlawful.
Q. So it was unparticularized suspicion is that what
you’re saying?
A. Um, I guess that could be.
Q. Okay. Because you couldn’t put your finger on what
it was you were suspicious of, right?
A. I was suspicious that something wasn’t quite right.
Q. But you didn’t know what it was, right?
A. That’s right.
2005] P
EOPLE V
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323
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,J.
The trooper’s intuition that “something wasn’t
quite right” and his observation that no luggage was
visible in the passenger compartment were the things
that made him suspicious. The trooper admitted that
it is not uncommon for people to carry luggage out of
sight in the trunk. Therefore, the only valid reason for
the trooper to be suspicious was defendant’s statement
that he was staying at a Holiday Inn in Cheboygan.
The fact that defendant answered with the name of
a hotel chain that did not have a facility in Cheboygan
hardly created a reasonable suspicion that criminal
activity was afoot.
2
The next question of defendant,
once he had stepped out of the vehicle, was whether he
had any prior conviction for drugs. It was likewise
unrelated to the traffic stop. This question is a further
indicator that the trooper was acting on a mere hunch.
Where there is no articulable basis to suspect that a
crime is being committed, the officer’s questions
amount to nothing more than a fishing expedition. The
questioning and the subsequent search in this case
went beyond the scope of the traffic stop and were
unsupported by any reasonable articulable suspicion.
I agree with the Court of Appeals that, given the
totality of the circumstances, the trooper had insuffi-
cient grounds for pursuing an investigatory stop and
2
It is noteworthy that the explanations Mr. Williams and his two
passengers gave are not as inconsistent as the prosecution would have
the Court believe. Mr. Williams indicated that they were going to
Cheboygan to visit friends and would be there “about two days.” They
would be staying at a Holiday Inn. His companion, Mr. King, indicated
that he was not sure how long they were going to be gone. This is not
inconsistent with defendant’s statement.
Mrs. Williams indicated that they were planning to do some shopping
in Cheboygan. She was not sure where they were staying; they did not
have reservations. This is also not inconsistent with Mr. Williams’s
explanation.
324 472 M
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308 [May
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conducted his investigation based merely on a hunch.
People v Champion, 452 Mich 92, 98; 549 NW2d 849
(1996). I would affirm the decision of the Court of
Appeals.
2005] P
EOPLE V
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ILLIAMS
325
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ELLY
,J.
WARDA v CITY COUNCIL OF THE CITY OF FLUSHING
Docket No. 125561. Decided May 18, 2005. On application by the
defendants for leave to appeal, the Supreme Court, after hearing
oral argument on whether the application should be granted and
in lieu of granting leave, reversed the judgment of the Court of
Appeals and remanded the matter to the circuit court for the entry
of an order dismissing the plaintiff’s claims.
Stephen W. Warda, a former police officer for the city of Flushing,
brought an action in the Genesee Circuit Court against the city
council of the city of Flushing and the city of Flushing, seeking
reimbursement of attorney fees the plaintiff incurred in successfully
defending criminal charges resulting from the plaintiff’s inspection
of salvage motor vehicles. The city council had denied the plaintiff’s
request in resolutions entered by the council. After a bench trial, the
court, James T. Corden, J., entered a judgment in favor of the
plaintiff . The Court of Appeals, O’C
ONNELL
,P.J., and W
ILDER
,J.
(J
ANSEN
, J., dissenting), affirmed on the bases that the trial court
properly found that the plaintiff acted within the scope of his
employment when he performed the vehicle inspections and that
the defendants abused their discretion in denying the request for
reimbursement. Unpublished opinion per curiam, issued December
23, 2003 (Docket No. 241188). The defendants sought leave to
appeal in the Supreme Court. The Supreme Court granted oral
argument on whether to grant the defendants’ application for leave
to appeal and directed the parties to brief the issue whether the city
council’s decision is subject to judicial review. 471 Mich 907 (2004).
In an opinion by Justice M
ARKMAN,
joined by Chief Justice
T
AYLOR
, and Justices C
ORRIGAN
and Y
OUNG
, the Supreme Court
held:
The city council constitutes a governmental agency for pur-
poses of reimbursement of attorney fees under MCL 691.1408(2).
The statute clearly provides that the decision to pay an officer’s
attorney fees is a matter left to the discretion of a municipality.
The statute does not provide standards by which the discretion of
the municipality is to be exercised. Because the statute neither
places limits on the exercise of the city council’s discretion nor
provides standards by which a court can review the exercise of that
326 472 M
ICH
326 [May
discretion, the statute affords the plaintiff no basis for relief. The
decision here was not subject to judicial review absent an allega-
tion that the exercise of discretion was unconstitutional, or un-
lawful under any other statute. The decisions in Exeter Twp Clerk
v Exeter Twp Bd, 108 Mich App 262 (1981), and Bowens v City of
Pontiac, 165 Mich App 416 (1988), which created exceptions to the
discretionary language in MCL 691.1408(2) for pressing necessity
and emergency conditions, must be overruled.
Reversed and remanded to the circuit court for entry of an
order dismissing the plaintiff’s claims.
Justice W
EAVER
, joined by Justices C
AVANAGH
and K
ELLY
, dis-
senting, stated that leave to appeal should be granted in order to
allow the Court, following full oral argument and full briefing, to
decide the question raised by the Court regarding judicial power.
The parties also should be directed to address the question
whether the plaintiff has a legal remedy under MCL 691.1408, or
whether subsection 3 of the statute prohibits the imposition of
liability on a governmental agency for a decision made pursuant to
subsection 2 of the statute.
1. M
UNICIPAL
C
ORPORATIONS —
A
TTORNEY
F
EES
.
The decision of a municipality whether to pay an officer’s attorney
fees under MCL 691.1408(2) is within the discretion of the
municipality; the statute does not place limits on the exercise of
such discretion nor does it provide standards by which a court may
review the exercise of that discretion.
2. M
UNICIPAL
C
ORPORATIONS —
D
ISCRETIONARY
D
ECISIONS —
A
PPEAL
.
Where a statute empowers a governmental agency to undertake a
discretionary decision, and neither places limits on the exercise of
that discretion nor provides standards by which a court can review
the exercise of that discretion, the decision is not subject to judicial
review absent an allegation that the exercise of that discretion was
unconstitutional.
Wascha & Waun, P.C. (by Thomas W. Waun), for the
plaintiff.
Henneke, McKone, Fraim & Dawes, P.C. (by Edward
G. Henneke), for the defendants.
M
ARKMAN,
J. The question presented in this case is
whether, pursuant to MCL 691.1408(2), Michigan
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courts possess the authority to review a city council’s
discretionary decision to grant or deny reimbursement
of private attorney fees incurred by a city police officer.
Because the city council’s decision under this statute
constitutes a discretionary act of a separate branch of
government, the judiciary is without authority to re-
view it. Accordingly, we reverse the judgment of the
Court of Appeals and remand this matter to the circuit
court for entry of an order dismissing plaintiff’s claims.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff was a Flushing police officer for approxi-
mately twenty years. Early in his career, at the sugges-
tion of the chief of police, plaintiff obtained special
training from the Secretary of State that certified him
to inspect “salvage vehicles.”
1
Plaintiff’s employer paid
for the training, and plaintiff received his regular pay
while he attended the salvage vehicle inspection course.
At all times relevant to this case, an inspection fee of
$25 was established by statute. MCL 257.217c(7). On
the occasions that plaintiff conducted inspections in
Flushing, plaintiff turned over this fee to the city, which
deducted taxes and then remitted the balance to plain-
tiff along with his regular pay. On those occasions
plaintiff conducted inspections outside Flushing, nei-
ther the police department nor the city of Flushing
received any part of the associated fees. Plaintiff con-
1
MCL 257.217c concerns the acquisition and transfer of distressed
vehicles. In general, a seriously damaged vehicle (i.e., a “distressed vehicle”
as defined by MCL 257.12a) must be issued a salvage certificate of title.
The process of obtaining such a title requires an inspection and certifica-
tion of certain matters by a specially trained officer. The specially trained
officer must be a police officer and must be certified by the Secretary of
State. MCL 257.217c(25), (26). The Secretary of State is responsible for
overseeing the conduct of specially trained officers, and may suspend,
revoke, or deny an officer’s certification. MCL 257.217c(26).
328 472 M
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ducted the vast majority of his inspections outside his
regular duty shift hours. Plaintiff characterized his
inspection work as “moonlighting” and as providing
“supplementary income.”
On March 2, 1992, plaintiff completed two inspection
reports related to salvage vehicle inspections he con-
ducted in Macomb County.
2
In these reports, plaintiff
verified that certain repairs had been made when in fact
they had not, and declared that the vehicles were
roadworthy when in fact they were not. Following a
criminal investigation, plaintiff was charged in April
1994 with false certification, a felony. MCL 257.903.
The city discharged plaintiff on May 25, 1994, for
violating department rules and regulations, including
misconduct and lying about the inspections to a Michi-
gan State Police investigator. However, in June 1997, a
jury in Macomb County acquitted plaintiff of the crimi-
nal charge of false certification.
Subsequently, plaintiff requested payment of
$205,000 from defendant for attorney fees incurred in
defending the criminal charges. Plaintiff cited MCL
691.1408(2) as a basis for the city to reimburse such
fees. By a resolution adopted at a meeting on September
8, 1997, the city council denied this request; it reiter-
ated its position in a resolution adopted on June 22,
1998. The two resolutions explained that plaintiff’s
request for fees was denied because plaintiff’s actions
that had resulted in the fees were not for any “public
purpose” of the city of Flushing and fell outside the
scope of plaintiff’s employment with the city.
Plaintiff filed the instant complaint for declaratory
relief and a motion for summary disposition, contend-
ing that the city abused its discretion in denying his
2
The city of Flushing is located in Genesee County.
2005] W
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request for attorney fees. Following a two-day bench
trial in October 2001, the trial court found that: (1)
while performing salvage vehicle inspections, plaintiff
was acting in the course of his duties as a Flushing
police officer; (2) the city council did not “offer one
credible or acceptable reason” for denying plaintiff’s fee
request; and (3) a reasonable attorney fee was $109,200.
In a divided opinion, the Court of Appeals affirmed.
Unpublished opinion per curiam, issued December 23,
2003 (Docket No. 241188). The majority concluded that
the circuit court had not clearly erred in finding that
plaintiff acted within the scope of his employment when
he inspected salvage vehicles, or in finding that the city
abused its discretion when it denied plaintiff reimburse-
ment of his attorney fees. The dissenting judge would
have reversed, concluding that the circuit court had
clearly erred in finding that plaintiff’s work as a salvage
vehicle inspector fell within the scope of his employ-
ment as a Flushing police officer.
We granted oral argument on whether to grant
defendants’ application for leave to appeal pursuant to
MCR 7.302(G)(1), and directed the parties to include
among the issues briefed “whether the city council’s
decision is subject to judicial review.” Warda v Flushing
City Council, 471 Mich 907 (2004).
II. STANDARD OF REVIEW
This dispute requires us to determine whether the
judiciary has the authority pursuant to the Constitu-
tion and MCL 691.1408(2) to review the city council’s
denial of plaintiff’s request for reimbursement. We
review these issues de novo. Lapeer Co Clerk v Lapeer
Circuit Judges, 465 Mich 559, 566; 640 NW2d 567
(2002); Jeffrey v Rapid American Corp, 448 Mich 178,
184; 529 NW2d 644 (1995).
330 472 M
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III. ANALYSIS
The question presented here concerns the extent to
which the decision of a municipality to deny reimburse-
ment for attorney fees under MCL 691.1408(2) is subject
to judicial review. Michigan has long recognized that a
municipality may indemnify a police officer for costs,
including attorney fees, incurred because of the dis-
charge of the officer’s official duties. Messmore v Kracht,
172 Mich 120, 122; 137 NW 549 (1912). This principle is
reflected in § 8 of the governmental immunity act, MCL
691.1408. As for the costs incurred by an officer in
defending a criminal action based on conduct of the
officer in the course of his employment, MCL
691.1408(2) provides:
When a criminal action is commenced against an officer
or employee of a governmental agency based upon the
conduct of the officer or employee in the course of employ-
ment, if the employee or officer had a reasonable basis for
believing that he or she was acting within the scope of his or
her authority at the time of the alleged conduct, the govern-
mental agency may pay for, engage, or furnish the services of
an attorney to advise the officer or employee as to the action,
and to appear for and represent the officer or employee in
the action. An officer or employee who has incurred legal
expenses after December 31, 1975 for conduct prescribed in
this subsection may obtain reimbursement for those ex-
penses under this subsection. [Emphasis added.]
For purposes of the statute, “governmental agency”
is defined as “the state or a political subdivision.” MCL
691.1401(d). “Political subdivision” is further defined:
“Political subdivision” means a municipal corporation,
county, county road commission, school district, commu-
nity college district, port district, metropolitan district, or
transportation authority or a combination of 2 or more of
these when acting jointly; a district or authority authorized
2005] W
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by law or formed by 1 or more political subdivisions; or an
agency, department, court, board, or council of a political
subdivision. [MCL 691.1401(b) (emphasis added).]
Thus, the Flushing city council constitutes a “govern-
mental agency” for purposes of the governmental im-
munity act.
The use of the word “may” in § 8 makes clear that
the decision to pay an officer’s attorney fees is a matter
left to the discretion of the municipality. Further, we
note that the statute does not limit or qualify the word
“may” (with, for instance, a requirement of reasonable-
ness) or provide any other standards by which that
discretion is to be exercised. As such, the Flushing city
council had full discretion under MCL 691.1408(2) in
choosing whether to reimburse plaintiff’s attorney fees.
The question, then, is the nature of this Court’s
power to review a purely discretionary action taken by
a governmental agency. In Veldman v Grand Rapids,
275 Mich 100; 265 NW 790 (1936), we were faced with
the question whether the plaintiffs, a group of Grand
Rapids taxpayers, could sue to prevent the city’s pur-
chase of a power plant, where such purchase had been
approved by that city’s legislative body, the city com-
mission. This Court observed:
If the city commission had legal authority to do what it
did do, that ends the matter. The question of whether the
commissioners acted wisely or unwisely is not for the
consideration or determination of this court.
***
If the charter of the city of Grand Rapids is constitu-
tional, and of this there seems to be no question, and the
State has thus conferred upon the city commission the
power which it exercised and left the exercise of it to the
judgment and discretion of the commissioners, then their
action is conclusive. [Id. at 112-113.]
332 472 M
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In the instant case, the state, through § 8 (the consti-
tutionality of which has not been challenged), has clearly
“conferred upon the city [council] the power which it
exercised and left the exercise of it to the judgment and
discretion” of the city council. Veldman, supra at 113.
While the statute affords the city council the discretion
to decide whether to reimburse a claim for attorney fees,
the statute says nothing about the limits within which
that discretion is to be exercised, let alone by which an
appellate court would be guided in its review of a decision
made pursuant to that discretion. As such, the Flushing
city council’s action to deny reimbursement of attorney
fees is conclusive. Whether the council acted wisely or
unwisely, prudently or imprudently, is not for the consid-
eration or determination of this Court.
3
As a result, we see no need to take sides in the matter
addressed and resolved, both by the trial court and the
Court of Appeals, regarding whether plaintiff’s work as
a salvage vehicle inspector fell within the scope of his
employment as a Flushing police officer.
The following passage from People v Gardner, 143
3
We stress that this opinion only precludes the judiciary from review-
ing the discretionary decision-making of legislative and executive agen-
cies. Where decision-making falls outside the scope of such discretion,
such decision-making would be fully subject to judicial review.
For instance, MCL 691.1408(2) confers discretionary decision-making
authority on a governmental agency if three criteria are met: (1) a
criminal action has been commenced against an employee; (2) the
criminal action is based on the conduct of the employee occurring in the
course of employment; and (3) the employee has a reasonable basis for
believing that he or she was acting within the scope of his or her
authority at the time of the conduct. If any of these three criteria are not
satisfied, a legislative or executive agency would lack the statutory
discretion to award attorney fees. Therefore, if a legislative or executive
agency chose to award attorney fees to a nonemployee, for example, the
discretion afforded the agency under MCL 691.1408(2) would not pre-
clude the courts from reviewing such a decision, because the precondi-
tions giving rise to the discretionary authority would not have been met.
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Mich 104, 106; 106 NW 541 (1906), succinctly summa-
rizes both the role of the judiciary and the appropriate
form of relief available to a plaintiff in a matter of this
sort:
4
“The general rule is well established that courts will not
inquire into the motives of legislators where they possess the
power to do the act, and it has been exercised as prescribed
by the organic law. In such case the doctrine is that the
legislators are responsible alone to the people who elect
them. And this principle is generally applied to purely
legislative acts of municipal corporations.” [Citation omit-
ted.]
So long as the power to govern the city and control its
affairs is vested by the people of Flushing in an elected
city council, neither this Court nor any other may
assume to direct the local policy of the city of Flushing.
See Veldman, supra at 111; Huse v East China Twp Bd,
330 Mich 465, 470-471; 47 NW2d 696 (1951). Here, the
city council concluded that the reimbursement of plain-
tiff’s attorney fees would not serve the “public pur-
poses” of the city of Flushing, and chose not to reim-
burse such fees. While such a decision might be one
with which reasonable people would disagree, its wis-
dom is ultimately to be judged by the voters of the city
of Flushing, and not by the judiciary of this state.
4
In the past this Court has considered whether such discretionary
actions are subject to judicial review and have concluded that they are
not. See, e.g., Schwartz v City of Flint, 426 Mich 295, 305-313; 395 NW2d
678 (1986). These cases are predicated on the doctrine of separation of
powers that is set forth in Const 1963, art 3, § 2, which provides that
“[t]he powers of government are divided into three branches: legislative,
executive and judicial,” and further provides that “[n]o person exercising
powers of one branch shall exercise powers properly belonging to another
branch except as expressly provided in this constitution.” We have
recognized that the doctrine of the separation of powers applies to
municipalities when exercising the powers delegated to them by the
Legislature pursuant to Const 1963, art 7, §§ 21 and 22.
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Accordingly, because the statute provides no limits
within which the city council’s discretion is to be
exercised, let alone by which an appellate court would
be guided in its review of an exercise of that discretion,
MCL 691.1408(2) affords plaintiff no basis for relief.
5
Moreover, in enacting MCL 691.1408(3), which pre-
cludes governmental liability under this act, the Legis-
lature demonstrated an appreciation of this limitation
on judicial power. MCL 691.1408(3), then, is not inhar-
monious with the separation of powers considerations
that we have set forth.
However, while we conclude that there is no statu-
tory basis for our review of the city council’s decision,
that conclusion does not end the inquiry. Even a discre-
tionary action of a governmental agency must still
comport with the constitutions of this state and the
United States. As we have noted elsewhere:
[T]he power of judicial review does not extend only to
invalidating unconstitutional statutes or other legislative
enactments, but also to declaring other governmental
action invalid if it violates the state or federal constitution.
[Sharp v City of Lansing, 464 Mich 792, 810-811; 629
NW2d 873 (2001).]
The decisions of a governmental agency, for example,
to award attorney fees on the basis of race, religion, or
nationality might implicate the equal protection guar-
antees of the federal and state constitutions, while
decisions influenced by corruption might implicate the
due process guarantees of these same constitutions. See
Huse, supra at 470-471.
5
Plaintiff here does not identify any other statute pertinent to defen-
dants that would render their conduct either illegal or ultra vires. See
People v Ford, 417 Mich 66, 91; 331 NW2d 878 (1982). Obviously, the fact
that one statute does not render conduct unlawful does not mean that
another statute may not do so.
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However, plaintiff here does not suggest that the city
council’s decision was unconstitutional in any way. Nor
is there any evidence in the record that would suggest
such unconstitutionality. Rather, the record reflects
that the city council was faced with a discretionary
decision that required it to choose among several per-
missible outcomes, and it chose accordingly. The grava-
men of plaintiff’s argument is simply that he is unhappy
with the option the city council selected. Yet his dissat-
isfaction, however reasonable to this Court, does not
call into question an otherwise valid decision of a
governmental agency.
6
Where, as here, a statute em-
6
While the exercise of discretion at issue here (a city council resolu-
tion) was legislative in nature, our holding extends equally to encompass
discretionary actions undertaken by the executive branch in the absence
of a guiding standard. In Sutherland v Governor, 29 Mich 320, 321 (1874),
the Governor was empowered by statute to issue a certificate of approval
“when he shall be satisfied that certain work has been done in conformity
with the law.” The parties performing the work brought a mandamus
action to compel the Governor to issue such a certificate. This Court
declined, for lack of jurisdiction, to entertain the application for manda-
mus. We observed:
The law must leave the final decision upon every claim and
every controversy somewhere, and when that decision has been
made, it must be accepted as correct. The presumption is just as
conclusive in favor of executive action as in favor of judicial. The
party applying for action, which, under the constitution and laws,
depends on the executive discretion, or is to be determined by the
executive judgment, if he fails to obtain it, has sought the proper
remedy and must submit to the decision. [Id. at 330-331.]
See also Midland Co Bd of Supervisors v Auditor General, 27 Mich 165,
166 (1873) (“the exercise of an official discretion belonging to an
executive department of the State government, is not subject to review
judicially, and cannot, therefore, be examined upon certiorari from this
Court”).
Where the executive carries out a function that is part of the inherent
executive power and for which there are no constitutional or other
standards, the judiciary is equally without power to review executive
action. See, e.g., United States v Curtiss-Wright Export Corp, 299 US 304,
336 472 M
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powers a governmental agency to undertake a discre-
tionary decision, and provides no limits to guide either
the agency’s exercise of that discretion or the judiciary’s
review of that exercise, the decision is not subject to
judicial review absent an allegation that the exercise of
that discretion was unconstitutional.
In reaching a contrary conclusion, the Court of
Appeals relied on Exeter Twp Clerk v Exeter Twp Bd,
108 Mich App 262; 310 NW2d 357 (1981), and Bowens v
City of Pontiac, 165 Mich App 416; 419 NW2d 24 (1988).
In Exeter, a township clerk hired private counsel in
connection with a primary election after the township
attorney declined to advise her on the legality of certain
nominating petitions. When the township board refused
to reimburse the clerk for her attorney fees and costs,
she filed a mandamus action to obtain reimbursement
under MCL 691.1408.
7
320; 57 S Ct 216; 81 L Ed 255 (1936) (noting that the President’s
inherent power to handle international relations “does not require as a
basis for its exercise an act of Congress, but... must be exercised in
subordination to the applicable provisions of the Constitution”); Cun-
ningham v Neagle, 135 US 1; 10 S Ct 658; 34 L Ed 55 (1890).
Where an executive branch action constitutes action taken pursuant
to a legislative grant of authority and in accordance with standards set
forth by the Legislature—a realm of action that encompasses virtually all
administrative agency actions—it would normally be subject to judicial
review. In such cases, there would be a legislatively set standard that a
court of law would apply in reviewing such an action. See Dep’t of Natural
Resources v Seaman, 396 Mich 299, 308-309; 240 NW2d 206 (1976).
7
We note that while plaintiff in the instant case did not label his
complaint as one for mandamus, he was in essence seeking a writ of
mandamus from the circuit court to compel the city council to pay him his
attorney fees. However, a writ of mandamus will be issued only where a
plaintiff can prove that he has a “ ‘clear legal right to performance of the
specific duty sought to be compelled’ and that the defendant has a ‘clear
legal duty to perform such act....’”In re MCI Telecom Complaint, 460
Mich 396, 442-443; 596 NW2d 164 (1999) (citation omitted). While this
rule may have prompted the Court in Exeter to create its “pressing
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The Exeter panel recognized that there were “no
statutory guidelines demonstrating any legislative in-
tent to answer the question of legal fee indemnification
or reimbursement,” and no cases directly on point.
Exeter, supra at 268. The panel also recognized the wide
discretion afforded to a municipality under the statute:
[A] municipality, such as a township, in general possesses
the discretion to determine whether (1) counsel for the
township shall represent a township official sued in his or
her capacity, (2) to approve retention of private counsel paid
for by the township, (3) to indemnify the official for expenses
incurred in defending the action, including attorneys fees, or
(4) the township board may decline to provide legal repre-
sentation or indemnification for such official. [Id. at 269.]
However, in spite of this recognition, the Exeter panel
disregarded the latitude statutorily afforded to the
municipality. The panel overlooked the fact that MCL
691.1408 provided no guidance regarding what stan-
dards an appellate court might employ in reviewing the
township’s decision; instead, it simply reviewed the
decision for an abuse of discretion. Id.
The Exeter panel then proceeded to create a “press-
ing necessity” exception from statutory language, MCL
691.1408, that contained no such exception:
Where it is factually demonstrated that pressing neces-
sity or emergency conditions warrant a municipal official in
employing legal counsel in a matter of official, public con-
cern and legal services are provided without consent of the
governing body, the courts may hold a municipal corporation
liable for such legal services. [Exeter, supra at 269-270.]
necessity” exception, there is simply no statutory basis for such an
exception. Accordingly, because MCL 691.1408(2) provides only that a
governmental agency “may” reimburse attorney fees, plaintiff has not
shown that he had a “clear legal right” to reimbursement, nor that the
city council had a “clear legal duty” to reimburse him. In re MCI, supra.
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The Court of Appeals later extended this exception to
apply to legal expenses incurred in the course of defend-
ing criminal charges. In Bowens, supra, a city council-
man who went “undercover” to investigate illegal gam-
bling within his district was wrongly implicated in a
gambling enterprise, and incurred legal expenses de-
fending against the resulting criminal charges. The
Court of Appeals concluded that the plaintiff acted
reasonably, in good faith, and for a public purpose in
doing what he did, and that the Exeter exception applied
because the “plaintiff had been faced with an emer-
gency in immediately requiring the services of a skilled
criminal attorney.” Bowens, supra at 420.
We believe that the Court of Appeals panels in Exeter
and Bowens misapprehended the limited role afforded to
the judiciary in cases involving discretionary decisions of
a governmental agency. T o the extent that MCL
691.1408(2) sets forth no limits on the exercise of a
governmental agency’s discretion to reimburse attorney
fees, it concomitantly sets forth no standards by which
the decision of such agency can be reviewed meaningfully
by the judiciary. The exercise of the “judicial power” by
this Court, Const 1963, art 6, § 1, contemplates that
there will be standards—legally comprehensible
standards—on the basis of which agency decisions can be
reviewed. Whether such standards consist of the provi-
sions of the constitution, or the provisions of other
pertinent laws, a judicially comprehensible standard is
required in order to enable judicial review.
8
Here, there is
no such standard. As a result, there is no basis upon
which a court of law can properly review the actions of
defendants under MCL 691.1408(2). Absent a compre-
8
Cf. Baker v Carr, 369 US 186, 217; 82 S Ct 691;7LEd2d663(1962)
(referring in the context of the political question doctrine to the impro-
priety of courts resolving matters in which there is a “lack of judicially
discoverable and manageable standards”).
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hensible standard, judicial review cannot be under-
taken in pursuit of the rule of law, but only in pursuit of
the personal preferences of individual judges. The latter
pursuit falls outside the “judicial power” in Michigan.
The Court of Appeals, relying on Exeter and Bowens,
erred in concluding that decisions made pursuant to
MCL 691.1408(2) are reviewable under an abuse of
discretion standard. Absent a showing that the govern-
mental agency exercised its discretion in an unconstitu-
tional manner, the courts are without the power to
review such decisions. Accordingly, we overrule Exeter
and Bowens.
Because the Court of Appeals erred in reviewing the
discretionary decisions involved in Exeter and Bowens,it
follows that the exceptions to MCL 691.1408(2) the
Court invented as a product of such review are also
erroneous. However, even if the governmental agency
decisions in those cases had been properly subject to
judicial review, the exceptions invented therein still
cannot stand. MCL 691.1408(2) specifies that a “govern-
mental agency may pay for, engage, or furnish the
services of an attorney....” It says nothing about
“pressing necessity” or “emergency.” Where statutory
language is clear, “ ‘no further judicial construction is
required or permitted, and the statute must be enforced
as written.’ ” Gladych v New Family Homes, Inc, 468
Mich 594, 597; 664 NW2d 705 (2003) (citation omitted).
Because the exceptions adopted in Exeter and Bowens
not only lack a statutory basis but also violate the clear
language of MCL 691.1408(2) that a government agency
“may” reimburse attorney fees, those exceptions cannot
stand.
IV. CONCLUSION
Because MCL 691.1408(2) places the decision
whether to reimburse the attorney fees at issue within
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the discretion of the Flushing city council, the legisla-
tive branch of the local government, the judiciary is not
empowered to review such decision absent a constitu-
tional violation or other illegality. Where a statute
permits a governmental agency to undertake a discre-
tionary decision, and provides no limits to guide either
the agency’s exercise of that discretion or the judiciary’s
review of that exercise, the decision is not subject to
judicial review absent an allegation that the exercise of
discretion was in some way unconstitutional. To the
extent that they are contrary to this rule, the Court of
Appeals decisions in Exeter and Bowens are overruled.
The decision of the Court of Appeals is reversed. This
matter is remanded to the circuit court for entry of an
order dismissing plaintiff’s claims.
T
AYLOR
, C.J., and C
ORRIGAN
and Y
OUNG
, JJ., concurred
with M
ARKMAN,
J.
W
EAVER,
J. (dissenting). I would grant leave to appeal
in this case rather than issue a final opinion at this
time. This case is currently before the Court on an
application for leave to appeal. The Court ordered oral
arguments to help it decide if it should grant leave, deny
leave, or take some peremptory action.
In its opinion, the majority addresses the broad
question of judicial power, an issue raised by the Court,
not the parties. Such an important and far-reaching
question should not be decided without granting leave
to appeal and receiving the benefit of full oral argument
and full briefing, including inviting amicus briefing.
In granting leave to appeal, I would also ask the
parties to address whether the plaintiff has a legal
remedy under MCL 691.1408, or whether subsection 3
of the statute prohibits the imposition of liability on a
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governmental agency for a decision made pursuant to
subsection 2. MCL 691.1408, at the time applicable
here, stated in relevant part:
(2) When a criminal action is commenced against an
officer or employee of a governmental agency based upon
the conduct of the officer or employee in the course of
employment, if the employee or officer had a reasonable
basis for believing that he or she was acting within the
scope of his or her authority at the time of the alleged
conduct, the governmental agency may pay for, engage, or
furnish the services of an attorney to advise the officer or
employee as to the action, and to appear for and represent
the officer or employee in the action. An officer or employee
who has incurred legal expenses after December 31, 1975
for conduct prescribed in this subsection may obtain reim-
bursement for those expenses under this subsection.
(3) This section shall not impose any liability on a
governmental agency. [Emphasis added.]
Thus, the question would be whether the Legislature
has specifically provided that a suit seeking to impose
on a governmental agency liability based on MCL
691.1408, such as the suit here, could not be brought.
C
AVANAGH
and K
ELLY
, JJ., concurred with W
EAVER
,J.
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EAVER
,J.
PEOPLE v SHEPHERD
Docket No. 127303. Decided May 24, 2005. On application by the
prosecution for leave to appeal, the Supreme Court, in lieu of
granting leave to appeal, reversed the judgment of the Court of
Appeals and remanded the matter to the circuit court for the
reinstatement of the conviction and the sentence.
Nina J. Shepherd was convicted by a jury in the Midland Circuit
Court, Thomas L. Ludington, J., of perjury as a result of giving
false testimony in the trial of her boyfriend for fleeing and eluding
the police. The Court of Appeals, C
OOPER
and K
ELLY
,JJ.(H
OEKSTRA
,
P.J., dissenting), reversed the conviction on the basis that the trial
court erred in admitting at the defendant’s trial the transcript of
the boyfriend’s plea of guilty to a charge of subornation of perjury
relating to the defendant’s testimony at the boyfriend’s trial. The
dissenting Court of Appeals judge concluded that the error was
harmless. 263 Mich App 665 (2004). The prosecution sought leave
to appeal in the Supreme Court.
In an opinion per curiam, signed by Chief Justice T
AYLOR
, and
Justices C
ORRIGAN,
Y
OUNG
,andM
ARKMAN
, the Supreme Court held:
The alleged constitutional error of admitting in evidence the
transcript of the defendant’s boyfriend’s plea of guilty to a charge
of subornation of perjury is harmless because it is clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error.
Justice W
EAVER
, concurring, stated that she agrees with the
result and most of the reasoning of the majority opinion, but wrote
separately to note that the general principle that questions of
constitutionality should not be decided if the case may be disposed
of on other grounds does not necessarily apply in criminal cases. In
this case, it is not necessary to address the constitutional issue when
the Court has concluded that the admission of the evidence was
harmless.
Reversed and remanded for the reinstatement of the conviction
and the sentence.
Justice C
AVANAGH
, joined by Justice K
ELLY
, dissenting, stated
that the important and recurring issue in this matter should not
2005] P
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343
be decided by opinion per curiam. The case should be held in
abeyance for the Court’s decision in People v Jackson, Docket No.
125250, or leave to appeal should be granted.
C
ONSTITUTIONAL
L
AW —
C
ONFRONTATION
C
LAUSE —
H
ARMLESS
E
RROR
.
Harmless error analysis applies to claims concerning Confrontation
Clause errors; a constitutional error is harmless if it is clear
beyond a reasonable doubt that a rational jury would have found
the defendant guilty absent the error (US Const, Am VI).
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, Norman W. Donker, Prosecuting At-
torney, and Michael T. Garner, Assistant Prosecuting
Attorney, for the people.
Joseph L. Stewart for the defendant.
P
ER
C
URIAM
. At issue is whether the alleged constitu-
tional error of admitting in evidence a transcript of an
unavailable witness’s testimony in a different case was
harmless. We conclude that it was harmless because
other evidence was sufficient to sustain defendant’s
conviction. Accordingly, we reverse the judgment of the
Court of Appeals and remand the matter to the trial
court for the reinstatement of the conviction and the
sentence.
I. BACKGROUND
In the early morning hours of June 2, 2003, defen-
dant and her boyfriend, Bobby Butters, were departing
from a Midland County bar owned by Rose York.
Defendant was a former employee of the bar and
Butters was a frequent customer. York testified that she
observed defendant and Butters in the parking lot after
closing and overheard them discussing rides. She saw
defendant get in defendant’s station wagon and she
observed Butters drive off in his pickup truck.
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Unbeknownst to defendant or Butters, the pickup
truck was under surveillance by a Midland County
sheriff’s deputy, Sergeant Stephen Woods. Woods testi-
fied that he saw someone who appeared to match the
general physical description of Butters get into the
truck after speaking to a woman in the parking lot.
Another sheriff’s deputy then attempted to initiate a
traffic stop, but Butters accelerated the truck to one
hundred miles an hour, did not stop at a stop sign, and
attempted to collide with a patrol car. He escaped, but
was later apprehended.
Butters was charged with third-degree fleeing and
eluding the police, MCL 750.479a(3); two counts of
felonious assault, MCL 750.82; malicious destruction of
fire or police property, MCL 750.377b; operating a
vehicle while having a suspended or revoked license,
MCL 257.904(3)(b); and driving a vehicle with an in-
valid or missing license plate, MCL 257.255(1). As part
of the alibi defense that Butters advanced, defendant
testified that Butters had departed the parking lot with
her, in her station wagon, on the morning of the crime,
and that, consequently, he could not have been the
person in the truck who fled from the police. Butters
was nevertheless convicted of third-degree fleeing and
eluding and one count of felonious assault.
1
He was then
charged with subornation of perjury, MCL 750.424, to
which he pleaded guilty.
2
At his plea hearing, Butters
1
The jury acquitted Butters of malicious destruction of fire or police
property, and was unable to reach a verdict on the remaining count of
felonious assault. The trial court dismissed that felonious assault charge
and the licensing charges. The Court of Appeals affirmed. People v
Butters, unpublished opinion per curiam of the Court of Appeals, issued
July 22, 2003 (Docket No. 239277).
2
By order of April 3, 2003 (Docket No. 246539), the Court of Appeals
denied Butters’s application for leave to appeal that conviction for lack of
merit.
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testified that defendant’s testimony at his trial for
fleeing and eluding was false information and that he
had requested defendant to provide that testimony.
Defendant was charged with perjury for giving the
allegedly false testimony.
II. PROCEDURAL HISTORY
At defendant’s trial, the court admitted the tran-
script of the hearing at which Butters pleaded guilty of
subornation of perjury. Also admitted were certain
statements that Butters was overheard making while
he was in jail, a “script” of questions and answers that
Butters had created for defendant in preparation for
her testimony in his fleeing and eluding trial, and the
testimony of witnesses who were present on the morn-
ing of the fleeing and eluding offense. Defendant’s
defense was that she was telling the truth when she
testified in the earlier trial. The trial court denied
defendant’s motion for a directed verdict, and the jury
found defendant guilty of perjury.
Defendant appealed, and the Court of Appeals major-
ity reversed her conviction pursuant to Crawford v
Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177
(2004).
3
The Court found constitutional error in the
admission of the plea transcript, and the majority held
that “[i]t is not at all clear that a rational jury would
have found defendant guilty beyond a reasonable doubt
absent the improperly admitted statement.” 263 Mich
App at 672-673. The Court of Appeals dissenting judge
concluded that the error was harmless on the basis of
the other evidence in support of the verdict.
The prosecutor seeks leave to appeal, conceding that
the plea transcript was improperly admitted, but argu-
3
263 Mich App 665; 689 NW2d 721 (2004).
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ing that the error was harmless beyond a reasonable
doubt in light of the other legally admissible evidence
that established defendant’s guilt.
III. STANDARD OF REVIEW
“A constitutional error is harmless if ‘[it is] clear
beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error.’ ”
People v Mass, 464 Mich 615, 640 n 29; 628 NW2d 540
(2001), quoting Neder v United States, 527 US 1, 19; 119
S Ct 1827; 144 L Ed 2d 35 (1999).
IV. ANALYSIS
In Crawford, supra, the United States Supreme
Court held that, under the Confrontation Clause of the
Sixth Amendment, testimonial statements of witnesses
absent from trial may not be admitted against a crimi-
nal defendant unless the declarant is unavailable and
the defendant has had a prior opportunity to cross-
examine the declarant. The Court of Appeals held that
the trial court’s admission of the transcript, in which
Butters pleaded guilty of the crime of subornation of
perjury, violated defendant’s right to confront the wit-
nesses against her. The Court correctly concluded that
the alleged error was not a structural defect requiring
automatic reversal. The question presented is whether
the alleged constitutional error was harmless beyond a
reasonable doubt. We agree with the dissenting Court of
Appeals judge that it was.
4
4
Because we conclude that the admission of the guilty plea transcript
was harmless, it is not necessary to address whether the admission of the
transcript violated the Confrontation Clause of the United States Con-
stitution, US Const, Am VI, and “it is an undisputed principle of judicial
review that questions of constitutionality should not be decided if the
2005] P
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Harmless error analysis applies to claims concerning
Confrontation Clause errors, see Delaware v Van Ars-
dall, 475 US 673, 684; 106 S Ct 1431; 89 L Ed 2d 674
(1986). But to safeguard the jury trial guarantee, a
reviewing court must “conduct a thorough examination
of the record” in order to evaluate whether it is clear,
beyond a reasonable doubt, that the jury verdict would
have been the same absent the error. Neder, supra at
19.
5
Having conducted such a review, we conclude
beyond a reasonable doubt that a reasonable jury would
have found defendant guilty of perjury even if the
transcript of Butters’s guilty plea to the charge of
subornation of perjury had not been admitted.
At Butters’s trial for fleeing and eluding, defendant
testified that, on the morning in question, she had
asked Butters to ride with her and that Butters gave his
truck keys to Tony Miller. She testified that Butters
requested that she take him to his grandmother’s house
to pick up some beer, that he told others that he was
riding with her, and that Butters left the bar in defen-
dant’s car.
The statutory definition of perjury provides, in part:
Any person authorized by any statute of this state to
take an oath, or any person of whom an oath shall be
required by law, who shall wilfully swear falsely, in regard
to any matter or thing, respecting which such oath is
authorized or required, shall be guilty of perjury....[MCL
750.423.]
Apart from the plea transcript, the prosecution offered
at least four other pieces of evidence that strongly
case may be disposed of on other grounds.” J&JConstrCovBricklayers
& Allied Craftsmen, Local 1, 468 Mich 722, 734; 664 NW2d 728 (2003).
5
This Court adopted the Neder harmless error standard in Mass, supra
at 640 n 29.
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343 [May
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PINION OF THE
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OURT
supported a guilty verdict for perjury by establishing
that defendant’s testimony in the fleeing and eluding
case was false.
6
First, Rose York testified that she was standing
outside in the parking lot when the patrons were
leaving the bar. She observed defendant and Butters
leave the bar together, heard them discussing rides, and
saw them split up and go to their separate vehicles. She
saw defendant get into her car and Butters get into his
truck. Sheriff’s Deputy Woods corroborated York’s tes-
timony. He testified that he had knowledge of Butters’s
physical appearance from prior contacts with him, and
that he saw a person who generally matched that
description talking with a woman and then getting in
the vehicle that was being surveilled.
Second, Tony Miller testified that he was very intoxi-
cated on the morning in question and needed to be
driven home from the bar by Ty Maltby. Miller stated
that he was never in Butters’s pickup truck, but that
defendant later telephoned him to ask him to tell the
police that he had been driving it. Maltby, who testified
that he had not been drinking during the time in
question, corroborated Miller’s testimony that Maltby
drove Miller home. Thus, Miller could not have been
driving Butters’s pickup truck at the time of the fleeing
and eluding offense.
Third, the prosecution also introduced the “script”
that Butters had prepared for defendant and that had
been introduced at the fleeing and eluding trial to
impeach defendant’s testimony. The trial court properly
admitted it. The script contained twenty-one questions
6
We recognize that the prosecutor emphasized the erroneously admit-
ted guilty plea transcript in his argument, but this does not alter our
analysis.
2005] P
EOPLE V
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HEPHERD
349
O
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OURT
and answers, detailing the testimony that defendant
would give at the earlier trial. It included the following:
3) Did you see keys in Butters [sic] hand? Yes[.]
4) What did he do with the keys? Gave them to his
cousin Tony Miller[.]
5) When did he give his keys to Miller? On the way out
of the Bar.
6) Why did Butters give his keys to Miller? Bob&Iwere
going to his house to get beer from his refrigerator & then
we were going to Tony’s house. Tony needed a ride so Bob
told Tony to take his truck.
7) How did you leave the bar? My car[.]
8) Who was with you? Bob Butters[.]
Finally, two corrections officers testified that, after
Butters was arrested and incarcerated in the Midland
County jail, they overheard him talking to two visitors.
7
Butters told the visitors: that there was no way he
would have stopped for the sheriff’s deputies because he
had so much cocaine in the truck that he would have
been put away for life; that he would have “killed one of
the cops” before allowing himself to be caught; and that
there was no way defendant would be charged with
perjury because they were just trying to scare her.
Therefore, on the basis of this overwhelming evi-
dence of the falsity of defendant’s testimony in the
fleeing and eluding trial, we conclude that it is clear
beyond a reasonable doubt that a reasonable jury would
have found defendant guilty of perjury even if the
transcript of Butters’s plea to the charge of subornation
of perjury had not been admitted. Thus, the trial court’s
alleged error in admitting the transcript was harmless
7
The Court of Appeals correctly found that the corrections officers’
testimony about Butters’s nontestimonial statements to his visitors was
properly admitted under MRE 804(b)(3).
350 472 M
ICH
343 [May
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PINION OF THE
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OURT
beyond a reasonable doubt. The judgment of the Court
of Appeals is reversed, and this case is remanded to the
Midland Circuit Court for the reinstatement of the
conviction and the sentence.
T
AYLOR
, C.J., and C
ORRIGAN,
Y
OUNG
, and M
ARKMAN
,JJ.,
concurred.
W
EAVER
,J.(concurring). I agree with the result and
most of the reasoning of the majority opinion. I write
separately because the general principle that “ ‘ques-
tions of constitutionality should not be decided if the
case may be disposed of on other grounds,’ ” ante, pp
347-348 n 4 (citation omitted), does not necessarily
apply in criminal cases. As I stated in my partial
concurrence and partial dissent in People v McNally,
470 Mich 1, 10-11; 679 NW2d 301 (2004),
. . . that general principle does not apply here [in a criminal
case]. The phrase used by the majority is a convenient and
often-used shorthand for the principle that “[c]onsider-
ations of propriety, as well as long-established practice,
demand that we refrain from passing upon the constitu-
tionality of an act of Congress [or the Legislature] unless
obliged to do so in the proper performance of our judicial
function, when the question is raised by a party whose
interests entitle him to raise it.” Ashwander v Tennessee
Valley Auth, 297 US 288, 341; 56 S Ct 466; 80 L Ed 688
(1936) (Brandeis, J., concurring).
One of the earliest applications of this rule in Michigan
was in 1874, when this Court said “any consideration of the
constitutional question might have been waived, upon the
ground that a legislative act should not be declared uncon-
stitutional unless the point is presented in such a form as
to render its decision imperative....”Weimer v Bunbury,
30 Mich 201, 218 (1874).
The reasons behind such judicial restraint include the
delicacy and finality of judicial review of legislative acts,
separation of powers concerns raised by ruling on the acts
2005] P
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HEPHERD
351
C
ONCURRING
O
PINION BY
W
EAVER
,J.
of the other two branches of government, and the need to
show respect for the other two branches of government.
See Rescue Army v Muni Court of Los Angeles, 331 US 549,
571; 67 S Ct 1409; 91 L Ed 1666 (1947), and Kloppenberg,
Avoiding serious constitutional doubts: The supreme
court’s construction of statutes raising free speech concerns,
30 UC Davis L R 1, 13-14 (Fall, 1996).
These concerns are not implicated here, because the
constitutionality of an act of the Legislature or the Gover-
nor is not at issue. In deciding whether the defendant’s
postarrest, pre-Miranda silence was admissible in the pros-
ecutor’s case-in-chief, the Court would not be ruling on the
validity of a legislative or executive decree, but on a lower
court’s decision whether to admit certain testimony. See
Kloppenberg, Avoiding constitutional questions,35BCLR
1003, 1054 (1994).
But I agree that in this case it is not necessary to
address the constitutional issue when the Court has
concluded that the admission of the evidence was harm-
less.
C
AVANAGH
,J.(dissenting). I dissent on the grounds
that such an important, and recurring, issue should not
be decided by opinion per curiam. I would either hold
this case in abeyance for this Court’s decision in People
v Jackson, Docket No. 125250, or grant leave to appeal.
K
ELLY
, J., concurred with C
AVANAGH
,J.
352 472 M
ICH
343 [May
D
ISSENTING
O
PINION BY
C
AVANAGH
,J.
J&JFARMER LEASING, INC v
CITIZENS INSURANCE COMPANY OF AMERICA
Docket No. 125818. Decided May 24, 2005. On application by the defen-
dant for leave to appeal, the Supreme Court, after hearing argu-
ment on whether the application should be granted and in lieu of
granting leave, vacated the judgment of the Court of Appeals in part
and remanded the case to the circuit court for further proceedings.
J&JFarmerLeasing, Inc.; Farmer Brothers Trucking Company,
Inc.; Calvin Orange Rickard, Jr.; and James W. Riley, personal
representative of the estate of Sharyn Ann Riley, deceased,
brought an action in the Washtenaw Circuit Court against Citizens
Insurance Company of America, alleging bad-faith failure to settle
with regard to an underlying wrongful death action by the estate
against the Farmer parties. The underlying action resulted in a
jury award in excess of $3 million, of which Citizens, the insurer of
the Farmer parties, paid its policy limit of $750,000 plus costs, fees,
and interest, leaving the Farmer parties liable for the balance of
the judgment. The Farmer parties and the estate then entered an
agreement to initiate a joint lawsuit against Citizens on the basis
of an alleged bad-faith failure to settle. The agreement provided
that the remainder of the judgment from the underlying lawsuit
would be paid from any proceeds from the action alleging bad-faith
failure to settle. The agreement also provided that in return for
the Farmer parties’ cooperation in bringing the action, the estate
would forbear action to collect the excess of the underlying
judgment from the Farmer parties. Citizens moved for summary
disposition on the basis that the agreement functioned as a release
by the estate against the Farmer parties, and therefore the estate
cannot recover from Citizens because the Farmer parties will not
actually suffer a loss for which Citizens can be held liable. The
court, David S. Swartz, J., denied the motion. Citizens appealed by
leave granted. The Court of Appeals, S
AWYER
,P.J., and H
OEKSTRA
and M
URRAY
, JJ., affirmed, holding that the agreement was a
release because it operated to release Farmer from the underlying
excess judgment. 260 Mich App 607 (2004). The Supreme Court, in
lieu of granting leave to appeal, heard oral argument on whether
to grant the application or take other peremptory action. 471 Mich
940 (2004).
2005] J
&
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ARMER
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EASING V
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ITIZENS
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NS
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O
353
In a unanimous opinion per curiam, the Supreme Court held:
There is a material difference between a covenant not to sue
and a release. A release immediately discharges an existing claim
or right, while a covenant not to sue is merely an agreement not to
sue on an existing claim that does not extinguish the claim or
cause of action. The agreement in this case was a covenant not to
sue, conditioned on the covenantee performing certain duties
before the covenant becomes absolute. The Court of Appeals
incorrectly concluded that the covenant not to sue was a release
and it needlessly relied on Frankenmuth Mut Ins Co v Keeley (On
Rehearing), 436 Mich 372 (1990), in reaching its determination.
The parts of the Court of Appeals opinion that dealt with the
release and covenant not to sue issue and its analysis regarding
Keeley must be vacated. The circuit court correctly denied the
motion for summary disposition on the basis that the agreement
was a covenant not to sue. The matter must be remanded to the
circuit court for further proceedings.
Court of Appeals judgment vacated in part and case remanded
to the circuit court.
C
ONTRACTS —
R
ELEASES —
C
OVENANTS
N
OT TO
S
UE
.
A material difference exists between a covenant not to sue and a
release; a release immediately discharges an existing claim or
right, while a covenant not to sue is merely an agreement not to
sue on an existing claim and it does not extinguish the claim or
cause of action.
Logeman, Iafrate & Pollard, P.C. (by Robert E. Loge-
man and James A. Iafrate), for the plaintiffs.
Plunkett & Cooney, P.C. (by Jeffrey C. Gerish, Charles
W. Browning, and Stephen P. Brown), for the defendant.
Amici Curiae:
Willingham & Coté, P.C. (by John A. Yeager and Kara
Henigan), for Insurance Institute of Michigan.
Maurice A. Borden for Michigan Defense Trial Coun-
sel.
Dykema Gossett, PLLC (by Lori McAllister and Kurt
354 472 M
ICH
353 [May
D. Gallinger), for the American Insurance Association,
the National Association of Mutual Insurance Compa-
nies, and the Michigan Insurance Coalition.
P
ER
C
URIAM
. At issue is whether a covenant not to sue
a party is indistinguishable from a release and, thus,
results in a bar to suits against a covenantee’s tortfea-
sor by a covenantee’s assignee. The Court of Appeals
concluded that the instruments are indistinguishable
and, accordingly, that a covenantee’s assignee (the
covenantor) would be barred in a suit against the
tortfeasor. We disagree and vacate that part of the
judgment. The Court of Appeals correctly concluded for
other reasons that the covenantor was not released. Yet
the Court unnecessarily relied on a misapplication of
Frankenmuth Mut Ins Co v Keeley (On Rehearing), 436
Mich 372; 461 NW2d 666 (1990), so we vacate that
portion of the Court’s analysis. This case is remanded to
the Washtenaw Circuit Court for further proceedings
consistent with this opinion.
I
Sharyn Riley was killed when her vehicle was struck
by a truck owned byJ&JFarmer Leasing, Inc. (or
Farmer Brothers Trucking Company, Inc.),
1
operated by
their employee Calvin Rickard, Jr., and insured by
Citizens Insurance Company. Rickard was at fault.
James Riley, as the personal representative of Sharyn
Riley’s estate,
2
sued Farmer under a wrongful death
theory and Citizens assumed Farmer’s defense. Riley
obtained a jury verdict of $3.2 million against Farmer,
which exceeded the $750,000 limits of the Citizens
1
For ease of reference, we will refer to these parties jointly as
“Farmer.”
2
For ease of reference, we will refer to Sharyn Riley’s estate as “Riley.”
2005] J
&
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EASING V
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ITIZENS
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O
355
policy. Thus, Farmer, after Citizens tendered its policy
limits, remained liable for the $2.45 million balance of
the judgment.
Farmer, believing that the case could have settled for
the policy limits but for Citizens’ bad faith in pursuing
settlement negotiations, assigned to Riley its cause of
action against Citizens for bad-faith failure to settle.
3
As
part of the agreement between Riley and Farmer, Riley
agreed not to sue to collect the excess judgment of $2.45
million from Farmer as long as Farmer cooperated in
the suit against Citizens.
4
After Riley and Farmer filed suit, Citizens moved for
summary disposition, MCR 2.116(C)(10), arguing that
under the agreement Riley had released its underlying
claim against Farmer for the excess judgment and, thus,
Farmer’s surety, Citizens, was also released. That is,
because the principal was released, so was the surety.
The circuit court denied the motion, reasoning that the
joint agreement was in the nature of a covenant not to
sue and not a release because, under certain conditions,
Riley could proceed against Farmer to collect the un-
derlying judgment.
The Court of Appeals granted Citizens’ application
for leave to appeal and subsequently affirmed on a
3
Michigan recognizes an insured’s claim against its insurer for bad
faith in refusing to settle. See Commercial Union Ins Co v Liberty Mut Ins
Co, 426 Mich 127; 393 NW2d 161 (1986); Wakefield v Globe Indemnity Co,
246 Mich 645; 225 NW 643 (1929).
4
In particular, as relevant here, the agreement sets out Farmer’s desire
to pursue a bad-faith claim and Riley’s desire to recover the full
judgment. It continues by stating that the parties will pursue a joint
lawsuit against Citizens, Riley will control the lawsuit, Farmer will
cooperate fully or the agreement may be rendered null and void, any
recovery will go to Riley (with an exception for $20,000 for attorney fees
incurred by Farmer), and Riley will in return “forever forbear” from
collecting any judgment from Farmer.
356 472 M
ICH
353 [May
different basis than the trial court. While the Court
held that the trial court reached the right result be-
cause of its understanding of the intent and purpose of
our decision in Frankenmuth Mut Ins Co v Keeley (On
Rehearing), 436 Mich 372; 461 NW2d 666 (1990), the
panel held that the agreement itself was a release
because it “operates to release” Farmer from the un-
derlying excess judgment.
5
Citizens applied for leave to appeal in this Court. It
argued that the covenant not to sue in the agreement
effectively operated as a release. Therefore, under Kee-
ley, supra, plaintiffs’ claim must fail because Farmer
had not suffered any pecuniary loss as a result of
Citizens’ alleged bad faith in failing to settle the under-
lying lawsuit. We entertained oral argument on this
matter in lieu of granting leave to appeal under MCR
7.302(G)(1)
6
and now resolve Citizens’ application for
leave to appeal.
II
We review a summary disposition ruling de novo to
determine whether the moving party is entitled to
judgment as a matter of law. Maiden v Rozwood, 461
Mich 109, 118; 597 NW2d 817 (1999). We view the
evidence in the light most favorable to the party oppos-
ing the motion. Id. at 120.
III
There is a material difference between a covenant
not to sue and a release. A release immediately dis-
charges an existing claim or right. In contrast, a cov-
5
J&JFarmerLeasing,IncvCitizens Ins Co of America, 260 Mich App
607, 621; 680 NW2d 423 (2004).
6
471 Mich 940 (2004).
2005] J
&
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ITIZENS
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NS
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O
357
enant not to sue is merely an agreement not to sue on
an existing claim. It does not extinguish a claim or
cause of action. The difference primarily affects third
parties, rather than the parties to the agreement.
Theophelis v Lansing Gen Hosp, 430 Mich 473, 492 n
14; 424 NW2d 478 (1988) (G
RIFFIN
, J.); Industrial Steel
Stamping, Inc v Erie State Bank, 167 Mich App 687,
693; 423 NW2d 317 (1988).
As the circuit court concluded, the agreement in this
case is a covenant not to sue. Additionally, the covenant
not to sue is not absolute but, rather, is conditioned on
the covenantee, Farmer, performing certain duties in
the litigation against Citizens. Only if Farmer performs
these duties does Riley’s covenant not to sue on the
underlying excess judgment become absolute and re-
lease Farmer of all liability to Riley.
This analysis resolves this matter. No resort to Keeley
to reach the same conclusion was necessary.
IV
In conclusion, the Court of Appeals incorrectly held
that the covenant not to sue was a release and it
needlessly relied on Keeley. Accordingly, the Court of
Appeals opinion, insofar as it dealt with the release and
covenant not to sue issue, is vacated. Its analysis
regarding Keeley is also vacated. The circuit court
correctly found that the joint agreement was a covenant
not to sue and, therefore, summary disposition was
appropriately denied. This matter is remanded to the
circuit court for further proceedings.
T
AYLOR
, C.J., and C
AVANAGH
,W
EAVER,
K
ELLY,
C
ORRIGAN,
Y
OUNG
, and M
ARKMAN
, JJ., concurred.
358 472 M
ICH
353 [May
DEPARTMENT OF NATURAL RESOURCES v
CARMODY-LAHTI REAL ESTATE, INC
Docket No. 124413. Argued October 5, 2004 (Calendar No. 8). Decided
May 27, 2005.
The Department of Natural Resources brought an action in the
Houghton Circuit Court against Carmody-Lahti Real Estate, Inc.,
seeking a determination regarding the parties’ rights with respect
to a “right of way” granted in a deed in 1873. The plaintiff is the
successor in interest of the railroad company that was the grantee.
The defendant is the successor in interest of the mining company
that was the grantor. The court, Roy D. Gotham, J., granted
summary disposition in favor of the plaintiff and ordered the
defendant to remove a fence it had placed on the property that
blocked its use as a snowmobile and recreational trail. The defen-
dant appealed, alleging that the plaintiff’s predecessor abandoned
the easement granted in the deed. The Court of Appeals, S
MOLENSKI
,
P.J., and G
RIFFIN
and O’C
ONNELL
, JJ., affirmed, holding that the
grantor had not conveyed the easement for any particular purpose
and that the termination of rail service through the right-of-way by
the railroad that succeeded the original grantee was not an aban-
donment of the easement. The panel determined that the plaintiff’s
predecessor in interest had a legitimate property interest to convey
to the plaintiff. Unpublished opinion per curiam, issued June 3,
2003 (Docket No. 240908). The Supreme Court granted the defen-
dant’s application for leave to appeal and denied the plaintiff’s
application for leave to file a cross-appeal. 470 Mich 868 (2004). The
Supreme Court thereafter heard oral arguments and requested
briefing on the question whether the 1873 deed conveyed a fee
simple or an easement. 687 NW2d 298 (2004).
In an opinion by Justice Y
OUNG,
joined by Chief Justice T
AYLOR
,
and Justices C
AVANAGH,
W
EAVER,
C
ORRIGAN
,andM
ARKMAN
, the Su-
preme Court held:
The Court of Appeals correctly held that the 1873 deed con-
veyed an easement rather than a fee simple estate. The Court of
Appeals erred in holding that the easement was neither limited to
a specific purpose nor abandoned by the plaintiff’s predecessor in
interest. The deed conveyed an easement for railroad purposes
2005] DNR v C
ARMODY
-L
AHTI
359
only. The easement was abandoned when the plaintiff’s predeces-
sor in interest unambiguously manifested its intent to relinquish
any use of the right-of-way for railroad purposes and took action
consistent with that intent. The defendant has an unencumbered
fee simple in the land formerly subject to the easement. The
judgment of the Court of Appeals must be reversed and the matter
must be remanded to the circuit court for entry of an order of
summary disposition in favor of the defendant.
1. The objective in interpreting a deed is to give effect to the
intent of the parties as manifested in the language of the deed.
2. Where a grant is not of the land but is merely of its use as a
right-of-way, the grant conveys an easement only.
3. The granting clause of the deed in this case conveyed only a
right-of-way, an easement, not a fee simple.
4. The language of the deed clearly shows the intent of the
parties that an easement be conveyed for a railroad. The easement
conveyed by the 1873 deed is limited to railroad purposes. An
easement limited to a particular purpose terminates when such
purpose ceases to exist, is abandoned, or is rendered impossible of
accomplishment.
5. In both seeking federal permission to abandon its railroad
and removing the rails themselves, the plaintiff’s predecessor in
interest manifested an intent to abandon the underlying easement
(which was limited to railroad purposes) and took action consis-
tent with that intent. The predecessor in interest did not have a
valid property interest in the right-of-way when it thereafter
attempted to convey its interest to the plaintiff.
Reversed and remanded to the circuit court.
Justice K
ELLY
, dissenting, although agreeing with the conclu-
sion of the majority that the plaintiff’s property interest is an
easement rather than a fee simple, stated that the parties that
created the interest did not intend to limit its use to a rail line but,
rather, created a right-of-way for a transportation corridor that
can be used as a recreational trail.
There is no evidence that the easement was abandoned pursu-
ant to the federal regulatory process for abandonment. It appears
that the rail line remains under the jurisdiction of the Surface
Transportation Board. If so, the defendant may not circumvent
federal jurisdiction by obtaining a state court judgment of aban-
donment. Even if abandonment of the line were consummated
with the Surface Transportation Board, the Soo Line never
abandoned the underlying easement before conveying it to the
plaintiff for a trail.
360 472 M
ICH
359 [May
Recreational use of the right-of-way does not substantially
increase the burden on the plaintiff’s estate over its use as a
railroad. Rail-to-trail conversions do not constitute abandonment of
a property right under state law. Nonuse of the right-of-way for
railroad purposes here did not extinguish the right-of-way. The
judgments of the trial court and the Court of Appeals should be
affirmed.
1. E
ASEMENTS —
R
AILROADS —
D
EEDS
.
A written instrument conveys only an easement where the grant is
not of the land but is merely of its use as a right-of-way; where the
land itself is conveyed, although for railroad purposes only, with-
out specific designation of a right-of-way, the conveyance is in fee
and not an easement.
2. E
ASEMENTS —
R
AILROADS —
A
BANDONMENTS
.
An easement limited to a particular purpose terminates as soon as its
purpose ceases to exist, it is abandoned, or it is rendered impossible
of accomplishment; an easement holder abandons a railroad right-
of-way when nonuse is accompanied by acts on the part of the owner
of either the dominant or servient tenement that manifest an
intention to abandon, and that destroy the object for which the
easement was created or the means of its enjoyment; both an intent
to relinquish the property and external acts putting that intention
into effect must be shown to prove abandonment; nonuse, by itself,
is insufficient to show abandonment; rather, nonuse must be
accompanied by some act showing a clear intent to abandon.
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, and Harold J. Martin and John F.
Szczubelek, Assistant Attorneys General, for the plain-
tiff.
Bridges and Bridges (by Caroline Bridges) for the
defendant.
Y
OUNG
, J. In 1873, the Quincy Mining Company
conveyed an interest in real property located in Hough-
ton County, Michigan, to the Mineral Range Railroad
Company. The parties labeled this interest a “right of
way” in the written deed. The precise nature of this
right-of-way—whether it was an easement or a fee
2005] DNR v C
ARMODY
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O
PINION OF THE
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OURT
estate, whether it was limited to railroad purposes and,
if so, what such a limitation would mean—is the subject
matter of this appeal.
Plaintiff, the Michigan Department of Natural Re-
sources, is the successor in interest of the Mineral
Range Railroad Company. It asserts that it owns a fee
simple interest and is therefore entitled to use the
right-of-way as a snowmobile and recreation trail. De-
fendant, Carmody-Lahti Real Estate, Inc., is the succes-
sor in interest of the Quincy Mining Company and
maintains that plaintiff’s predecessor in interest en-
joyed only an easement, which it abandoned before
purporting to convey it to plaintiff.
We conclude that the Court of Appeals correctly
determined that the 1873 deed conveyed an easement
rather than a fee simple. However, we conclude that the
panel erred in holding that the easement was neither
limited to a specific purpose nor abandoned by plain-
tiff’s predecessor in interest. Properly construed, the
instrument conveyed an easement for railroad purposes
only. Thus, when plaintiff’s predecessor in interest
unambiguously manifested its intent to relinquish any
use of the right-of-way for railroad purposes and took
action consistent with that intent, the easement was
abandoned. Defendant, as successor in interest to the
original grantor, now has an unencumbered fee simple
interest in the land formerly subject to the easement.
We therefore reverse the judgment of the Court of
Appeals and remand to the circuit court for entry of
summary disposition in defendant’s favor.
I. FACTS AND PROCEDURAL HISTORY
In 1873, Quincy Mining conveyed a “right of way” to
Mineral Range through a written instrument that pro-
vided:
362 472 M
ICH
359 [May
O
PINION OF THE
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OURT
This indenture made this twentyfirst day of October in
the Year of Our Lord [1873] between the Quincy Mining
Company... and The Mineral Range Railroad Com-
pany...witnesseth that [Quincy Mining] for and in con-
sideration of the sum of one dollar to it in hand paid by
[Mineral Range], the receipt whereof is hereby . . . ac-
knowledged has granted, bargained, sold, remised, aliened
and confirmed and by these presents does grant, bargain,
sell, remise, release, alien and confirm unto [Mineral
Range] its successors and assigns forever a right of way for
the railroad of [Mineral Range] as already surveyed and
located by the engineer of [Mineral Range] and according
to the survey thereof on file in the Office of the Registrar of
Deeds for the County of Houghton, Michigan to consist of
a strip of land one hundred feet in width being fifty feet on
each side of said surveyed line across the following de-
scribed tracts or parcels of land situated in said county of
Houghton: [describes parcels/plats].
Also a right of way for said railroad surveyed and located
as aforesaid and according to the survey thereof on file as
aforesaid to consist of a strip of land one hundred feet in
width being twenty feet in width on the north side of said
surveyed line and eighty feet in width on the south side of
said surveyed line across the tract or parcel of land known
. . . as [describes parcels/plats].
Reserving to [Quincy Mining] and to its successors and
assigns all ore and minerals on said strip of land and the
right to mine the same from underneath the surface in
such manner as not to interfere with the construction or
operation of said railroad. Provided that [Quincy Mining]
shall not in any case mine within fifteen feet of the surface
of the [rock?] without the consent in writing of [Mineral
Range] together with all and singular the hereditaments
and appurtenances thereunto belonging or in anywise
appearing to have and to hold the said strip of land with the
appurtenances, for the purpose and uses above stated and
subject to the reservations aforesaid unto [Mineral Range]
its successors and assigns forever In Witness Whereof
[Quincy Mining] has caused its corporate seal to be affixed
2005] DNR v C
ARMODY
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363
O
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OURT
and these presents to be executed by its President and
Secretary the day and year first above written. Signed,
sealed and delivered....
Quincy Mining, the grantor, subsequently trans-
ferred its remaining interest in the Houghton County
property to the Armstrong-Thielman Lumber Company,
which, in turn, sold its interest to defendant Carmody-
Lahti Real Estate, Inc. Mineral Range later conveyed its
right-of-way to the Soo Line Railroad Company, which,
until the early 1980s, continued to utilize the right-of-
way for railroad purposes.
Although the railroad industry was central to the
economic vitality of our nation in the mid-nineteenth
century, its dominance began to wane in the late nine-
teenth and early twentieth centuries—the years follow-
ing the initial transfer of the Houghton County right-
of-way.
1
But even as railroading itself declined in
importance, the United States Congress determined
that the rail corridors themselves might prove vital for
future economic growth.
2
Accordingly, Congress en-
acted the Transportation Act of 1920, which required,
among other things, that railroad companies seek and
obtain the permission of the Interstate Commerce Com-
mission (ICC) before abandoning any extant rail line.
3
Congress has since amended this procedure with the
1
See, generally, Wright & Hester, Pipes, wires, and bicycles: Rails-to-
Trails, utility licenses, and the shifting scope of railroad easements from
the nineteenth to the twenty-first centuries, 27 Ecology L Q 351 (2000).
2
See Preseault v Interstate Commerce Comm, 494 US 1, 5-6; 110 S Ct
914; 108 L Ed 2d 1 (1990). See also Wild, A history of railroad
abandonments, 23TranspLJ1(1995).
3
Transportation Act, 41 Stat 456 (1920). See Wild, supra, p 4 (noting
that the Transportation Act was largely concerned with “railroad rate
policies”). Abandonment is to be distinguished from mere discontinuance
of service. See Preseault, supra at 6 n 3. The former involves relinquish-
ing rail lines and underlying property interests. Discontinuance, on the
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Railroad Revitalization and Regulatory Reform Act
(RRRRA) of 1976,
4
and again with the Staggers Rail Act
of 1980.
5
In September 1982, Soo Line, which then owned the
right-of-way originally granted to the Mineral Range
Railroad in 1873, sought federal permission to abandon
the railway. The ICC granted this request in a written
order on September 29, 1982. The order placed specific
conditions on Soo Line’s abandonment of its railway:
Soo Line shall keep intact all of the right-of-way under-
ling [sic] the track, including all the bridges and culverts,
for a period of 120 days from the decided date of this
certificate and decision to permit any state or local govern-
ment agency or other interested party to negotiate the
acquisition for public use of all or any portion of the
right-of-way. In addition, Soo Line shall maintain the
Houghton Depot for 120 days from the decided date of this
certificate and decision. During this time, Soo Line shall
take reasonable steps to prevent significant alteration or
deterioration of the structure and afford to any public
agency or private organization wishing to acquire the
structure for public use the right of first refusal for its
acquisition.
Six years after the ICC granted its request to aban-
don the railway, Soo Line conveyed the right-of-way to
other hand, “allows a railroad to cease operating a line for an indefinite
period while preserving the rail corridor for possible reactivation of
service in the future.” Id.
4
Railroad Revitalization and Regulatory Reform Act of 1976, PL
94-210, 90 Stat 31 (1976). See Wild, supra, pp 7-8.
5
Staggers Rail Act of 1980, PL 96-448, 94 Stat 1895 (1980). See also
Wild, supra, p 9. Congress abolished the ICC in 1995, ICC Termination
Act of 1995, 109 Stat 803, and vested authority over railroad abandon-
ment in the Surface Transportation Board, 49 USC 10903. See RLTD R
Corp v Surface Transportation Bd, 166 F3d 808, 810 (CA 6, 1999). After
Soo Line abandoned its Houghton County right-of-way in 1982, Congress
amended the National Trails System Act, 16 USC 1241 et seq., to create
a “railbanking” program. See 16 USC 1247(d).
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plaintiff, the Michigan Department of Natural Re-
sources (MDNR). By that time, the railroad tracks that
originally occupied the right-of-way had been largely
removed. The record reveals that, by 1988, there were
no railroad tracks on the thirty-foot strip of land at
issue in this case and there were only remnants of track
scattered along the easement. Thus, the task of recon-
structing the path of the railroad for litigation purposes
was a difficult one. The parties offered on this issue the
testimony of several surveyors, and each described a
painstaking process in which they consulted a number
of maps and searched for remaining physical evidence
of the railroad.
The MDNR used the right-of-way as a snowmobile
and recreation trail until 1997, when defendant in-
stalled a fence that blocked a portion of the right-of-way,
substantially interfered with its recreational use, and
spawned the present litigation.
In December 1997, plaintiff filed a complaint seeking
an order to enjoin defendant from blocking the right-
of-way with its fence. Plaintiff argued that it had an
unlimited right to use the right-of-way for any purpose
because the 1873 deed conveyed to Mineral Range
Railroad, its predecessor in interest, a fee simple estate.
Defendant argued in response that the deed had con-
veyed only an easement limited to railroad purposes.
The MDNR exceeded the scope of the easement, defen-
dant argued, and had thereby extinguished the right-
of-way.
The trial court initially granted summary disposition
in plaintiff’s favor, concluding that the 1873 instrument
conveyed a fee estate rather than an easement and that
plaintiff was therefore permitted to use the right-of-way
as a snowmobiling trail. The Court of Appeals reversed
and remanded the matter to the trial court. Unpub-
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lished opinion per curiam, issued June 5, 2001 (Docket
No. 222645). The panel held that the 1873 deed con-
veyed an easement rather than a fee simple and, accord-
ingly, remanded to the circuit court for a determination
whether the easement had been extinguished.
When the matter returned to the trial court, defen-
dant filed a motion for summary disposition, arguing
that the right-of-way had been extinguished by aban-
donment or by a 1920 tax sale of the servient estate.
The trial court rejected both claims, granted summary
disposition to plaintiff, and ordered the injunctive relief
—removal of defendant’s fence—sought by plaintiff.
Defendant appealed this judgment to the Court of
Appeals. There, defendant no longer asserted that Soo
Line had abandoned the easement as a result of the
1920 tax sale. Rather, defendant maintained that plain-
tiff’s predecessor abandoned the easement. The Court
of Appeals, like the trial court, rejected this argument.
The panel affirmed the judgment of the trial court,
holding that Quincy Mining had not conveyed the
easement for any “particular purpose” and, therefore,
that Soo Line’s termination of rail service through the
right-of-way was not an abandonment of its easement.
Unpublished opinion per curiam, issued June 3, 2003
(Docket No. 240908).
Assessing the specific language of the 1873 instru-
ment, the Court of Appeals stated:
[W]e believe that the phrase in the 1873 deed, “a right of
way for the railroad of [the Mineral Range Railroad],”
cannot be construed as a defeasance clause or as granting
the easement for a particular purpose only. In making this
determination, Quinn [v Pere Marquette R Co, 256 Mich
143; 239 NW 376 (1931)] is instructive. The phrase is akin
to a statement of purpose. The declaration that the ease-
ment was for the Mineral Range Railroad’s construction of
a railroad was “merely an expression of the intention of the
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parties that the deed is for a lawful purpose.” Quinn, supra
at 151. Thus, Soo Line’s cessation of rail service and
subsequent sale of the easement to be used for non-railroad
purposes did not automatically extinguish the easement.
[Slip op at 6-7.]
The panel also rejected the argument that Soo Line’s
abandonment application to the ICC in 1982 consti-
tuted an abandonment of the easement.
6
In the end, the
panel determined that Soo Line had a legitimate prop-
erty interest to convey to plaintiff and that plaintiff was
therefore entitled to summary disposition.
This Court granted defendant’s application for leave
to appeal on June 3, 2004, and solicited amicus briefs.
7
We initially denied plaintiff’s application for leave to
cross-appeal from the first Court of Appeals opinion
(holding that the 1873 deed conveyed an easement).
However, after hearing oral arguments, we requested
additional briefing on the question whether the 1873
deed conveyed a fee simple or an easement.
8
II. STANDARD OF REVIEW
A trial court’s decision to grant or deny summary
disposition under MCR 2.116(C)(10) is subject to review
de novo.
9
Under this court rule, a party is entitled to
summary disposition when “there is no genuine issue as
6
The Court stated:
In regards to the ICC certificate of abandonment, the ICC only
regulates and approves cessation of railroad operations, it “does not
determine abandonment.” [Id. at 9 (citation omitted).]
7
Dep’t of Natural Resources v Carmody-Lahti Real Estate, Inc, 470
Mich 868 (2004).
8
Dep’t of Natural Resources v Carmody-Lahti Real Estate, Inc, 687
NW2d 298 (2004).
9
Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004).
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to any material fact, and the moving party is entitled to
judgment...asamatter of law.”
10
III. ANALYSIS
Plaintiff, the Michigan Department of Natural Re-
sources, asserts the right to use of a former railroad
right-of-way in Houghton County, Michigan, as a public
snowmobile and outdoor recreation trail. Defendant,
Carmody-Lahti Real Estate, Inc., purports to own the
land underlying the trail in fee simple and claims the
legal right to bar public recreational use of the right-of-
way. At first blush, then, this case seems to concern land
use policy. Moreover, it is a policy question on which
both our federal and state legislatures have spoken:
Congress has enacted the National Trails System Act,
11
which codifies a federal policy of preserving our nation’s
rail corridors; the Michigan Legislature has enacted the
State Transportation Preservation Act in 1976, which
declares a legislative preference for using dormant
railways as recreational trails.
12
But the question of how the land ought to be used is
not before us. Instead, this appeal presents us with the
more modest task of discerning the meaning of a
late-nineteenth century deed. In order to determine
whether plaintiff is entitled to the injunctive relief
granted on remand by the trial court, we must deter-
mine, first, whether the “right of way” conveyed by the
1873 deed in question is an easement or a fee simple. If
the right-of-way is an easement, we must then establish
whether plaintiff has exceeded the scope of the ease-
ment or has abandoned it.
10
MCR 2.116(C)(10).
11
16 USC 1241-1249.
12
MCL 474.51 et seq.
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A. RIGHT-OF-WAY AS FEE SIMPLE OR EASEMENT
Our initial task is to establish the precise contours of
the property interest conferred upon Mineral Range
Railroad, plaintiff’s predecessor in interest. According
to plaintiff, the 1873 deed conveyed the land itself to
Mineral Range Railroad. Thus, plaintiff argues that, as
Mineral Range’s successor in interest, it owns the land
described by the 1873 deed in fee simple. Defendant
argues, however, that the deed transferred only an
easement—the right to use the land—rather than the
land itself.
An inquiry into the scope of the interest conferred by
a deed such as that at issue here necessarily focuses on
the deed’s plain language,
13
and is guided by the follow-
ing principles:
(1) In construing a deed of conveyance[,] the first and
fundamental inquiry must be the intent of the parties as
expressed in the language thereof; (2) in arriving at the
intent of parties as expressed in the instrument, consider-
ation must be given to the whole [of the deed] and to each
and every part of it; (3) no language in the instrument may
be needlessly rejected as meaningless, but, if possible, all
the language of a deed must be harmonized and construed
so as to make all of it meaningful; (4) the only purpose of
rules of construction of conveyances is to enable the court
to reach the probable intent of the parties when it is not
otherwise ascertainable.
[14]
These four principles stand for a relatively simple
proposition: our objective in interpreting a deed is to
give effect to the parties’ intent as manifested in the
language of the instrument.
The instrument’s granting clauses are a natural
13
Quinn, supra at 150.
14
Purlo Corp v 3925 Woodward Avenue, Inc, 341 Mich 483, 487-488; 67
NW2d 684 (1954) (citations omitted).
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starting point for discerning the parties’ intent.
15
The
deed purports to convey a “right of way” that “con-
sist[s]” of a “strip of land . . . across [the parcels de-
scribed in the deed].” As we recognized over seventy
years ago in Quinn, a deed granting a right-of-way
typically conveys an easement, whereas a deed granting
land itself is more appropriately characterized as con-
veying a fee or some other estate:
Where the grant is not of the land but is merely of the
use or of the right of way, or, in some cases, of the land
specifically for a right of way, it is held to convey an
easement only.
Where the land itself is conveyed, although for railroad
purposes only, without specific designation of a right of
way, the conveyance is in fee and not of an easement.
[16]
Here, the deed’s granting clause conveys only a right-
of-way. The plain language of the deed, as well as the
rule of construction articulated in Quinn, therefore
indicate that the deed conveyed an easement rather
than a fee simple.
15
Although it may look at first glance as though the deed grants two
separate rights-of-way, the instrument grants only a single right-of-way,
one that is positioned slightly differently within the first and second sets
of plats described in the deed. The entire right-of-way is measured from
a single line surveyed across a series of plats. For the first set of plats, the
right-of-way is one hundred feet total in width, measured fifty feet on
either side of the survey line. For the second set of plats, the right-of-way
is still one hundred feet total in width, but it is measured twenty feet on
one side of the surveyed line and eighty feet on the other.
16
Quinn, supra at 150-151 (citations omitted). A similar distinction
was made in Jones v Van Bochove, 103 Mich 98, 100; 61 NW 342 (1894):
We think the court below was correct in holding that the deed
conveyed an easement only, and not a fee. It does not purport to
convey a strip of land 40 feet wide, etc., but the right of way over
a strip 40 feet wide. Cases, undoubtedly, can be found in which the
operative words of the grant relate to the land itself; but such
construction cannot be given to this deed.
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Plaintiff relies on Quinn for the proposition that the
term “right-of-way” “has two meanings in railroad
parlance: the strip of land upon which the track is laid,
and the legal right to use such strip.”
17
The former
meaning, in plaintiff’s view, is an estate in real property,
whereas the latter—the right to use property—is an
easement only. Because “right-of-way” may be defined
in two ways, plaintiff contends that the 1873 deed is
ambiguous.
The initial flaw with this argument is this: although
“right-of-way” is susceptible to two meanings, it does
not follow that the phrase is equally susceptible to
either meaning in this case. As already noted, applica-
tion of the principles articulated in Quinn shows that
this deed—which grants a “right of way” rather than,
for example, a strip of land to be used as a right-of-
way—conveys an easement only.
Moreover, it would make little sense to read the
phrase “right of way” as referring to a strip of land.
Recall that the deed conveys a right-of-way, and subse-
quently describes that right-of-way as “consist[ing] of a
strip of land....”If“right of way” is to be interpreted
as conveying the land itself rather than passage over a
strip of land, then the instrument must be interpreted
as transferring “[a strip of land]...toconsist of a strip
of land ....”This reading produces a redundancy and
violates the principle that “all the language of a deed
must be harmonized and construed so as to make all of
it meaningful....”
18
Accordingly, it is an interpretation
we must reject.
17
Quinn, supra at 150. See also anno: Deed to railroad company as
conveying fee or easement, 6 ALR 3d 973 (1966); 65 Am Jur 2d, Railroads,
§ 40, p 234.
18
Purlo, supra at 487-488.
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According to the granting clause, the right-of-way to
which the deed refers appears to be “the legal right to
use the... strip”—or, in other words, an easement.
19
The deed contains no language that belies this conclu-
sion or affirmatively indicates that the parties intended
to convey a fee simple. Although the deed refers to
“strips of land,” even a cursory reading of the deed
reveals that these references are merely descriptive of
the right-of-way,
20
the object of the granting clauses,
and are not an attempt to convey an interest in the land
itself.
Indeed, one need only examine the language describ-
ing the right-of-way as consisting of a “strip of land...
across” the described parcels to confirm this fact. That
the parties described the interest as going “across” the
land reveals that they understood the right-of-way as
being distinct from the land itself. As in Westman v
Kiell,
21
“[t]his language evidences an intent to convey a
use or right of way upon and across the land, or, in other
words, an easement.”
22
The language of the habendum clause is also con-
sistent with conveyance of an easement. This clause
states that Mineral R ange Railroad was “to have and
to hold the said strip of land with the appurtenances,
for the purpose and uses above stated and subject to
the reservations aforesaid...forever....”Therefer-
ence in the habendum clause to the “purpose and uses
above stated and...thereservations aforesaid” dem-
19
See Quinn, supra at 150 (noting that “[w]here the grant is not of the
landbutismerelyoftheuseoroftherightofway...itisheldtoconvey
an easement only”).
20
Compare Jones v Van Bochove, 103 Mich 98; 61 NW 342 (1894)
(described earlier in this opinion).
21
183 Mich App 489; 455 NW2d 45 (1990).
22
Id. at 494.
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onstrates the parties’ intent to convey only the limited
property interest previously described in the deed.
Although the habendum clause refers to a “strip of
land,” the context of this phrase—particularly the
references to “strip[s] of land” in clauses that precede
the habendum clause—shows that this reference de-
scribes the geographical placement of the easement
rather than the nature of the property interest con-
veyed.
Plaintiff contends that Quincy Mining’s reservation
of mineral rights indicates that the parties intended the
deed to convey a fee simple rather than an easement.
This argument is unpersuasive. Indeed, plaintiff’s as-
sertion that this reservation would have been unneces-
sary if Quincy Mining had conveyed only an easement
overlooks the key difference between railroad ease-
ments and ordinary easements.
Typically, the owner of a servient estate may con-
tinue to use land encumbered by an easement.
23
Rail-
road easements, however, are “essentially different
from any other [easement].”
24
As one commentator
recently noted, “a railroad right-of-way easement
granted by a landowner cannot be used by the land-
owner for any reason, even if the use does not interfere
with the use by the easement holder.”
25
For this reason,
grantors of railroad rights-of-way have included lan-
guage in deeds to delineate their continuing use rights
in the portion of their fee estate burdened by a railroad
easement. In Michigan Limestone & Chemical Co v
Detroit&MRCo,for example, a railway enjoyed a
23
Harvey v Crane, 85 Mich 316, 323; 48 NW 582 (1891).
24
65 Am Jur 2d, Railroads, § 71, p 254. See also Sennewald, The nexus
of federal and state law in railroad abandonments, 51 Vand L R 1399,
1412 (1998).
25
Sennewald, supra, p 1411.
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“right of way through plaintiff’s property”
26
—an ease-
ment according to the standards articulated in Quinn.
27
Yet the deed expressly reserved for the grantor the right
to build a road, pipeline, or conduit across the railroad
right-of-way to ensure that the grantor’s quarry had
continued access to Lake Huron.
28
Therefore, there is
nothing incongruous about the grantor’s reservation of
mineral rights and our conclusion that the right-of-way
conveyed in 1873 was an easement. Rather, such a
reservation might be expected in a deed conveying a
railroad right-of-way, particularly when the grantor is a
mining company and has a strong interest in protecting
its mining interests.
Although our sole concern is the intent of the parties
as manifested in the plain language of the deed at issue
here, it is worth noting that this analysis of the deed is
consistent with our prior jurisprudence in this area. In
general, this Court has construed deeds that purport to
convey a right-of-way as transferring an easement. In
fact, we have been unable to discover a single case in
which this Court construed a deed conveying a “right of
way” as transferring a fee estate, and plaintiff has
directed us to none.
In Jones v Van Bochove,
29
for example, we considered
a deed with a granting clause that conveyed
“[a]ll that certain piece or parcel of land situate***and
described as follows, to wit: The right of way for a railroad,
26
238 Mich 221, 223; 213 NW 221 (1927) (emphasis added).
27
Quinn, supra at 150 (“Where the grant is not of the land but is
merely of the use or of the right of way... it is held to convey an
easement only.”).
28
Limestone & Chemical Co, supra at 223. See also Mahar v Grand
Rapids Terminal R Co, 174 Mich 138, 143; 140 NW 535 (1913), noting
that a deed conveying an easement “reserve[d] to the [grantors] the right
of sewage and drainage across the premises.”
29
103 Mich 98; 61 NW 342 (1894).
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running from the marl bed of said cement company to their
works, on the west side of the Kalamazoo river, and
described as follows: ‘A strip of land 40 feet wide***and
952 feet in length.[’] ”
[30]
We held that this granting clause conveyed an easement
rather than a fee, noting that the deed “does not
purport to convey a strip of land 40 feet wide, etc., but
the right of way over a strip 40 feet wide.”
31
Likewise, in
Mahar, supra, we determined that the following lan-
guage conveyed an easement rather than a fee estate:
“That the said parties of the first part, for and in
consideration of the future construction, continued mainte-
nance and operation of a first-class, standard-gauge steam
railroad (over which shall be transported passengers and
freight) within the time, limits and conditions hereinafter to
be defined,...have granted, bargained, sold and conveyed
and by these presents do grant, bargain, sell, convey and
quitclaim unto the party of the second part, his successors or
assigns, for a right of way for a railroad forever....”
[32]
In contrast, deeds that this Court and the Court of
Appeals have read as conveying a fee rather than an
easement typically contain language that unambigu-
ously conveys an estate in land and are therefore readily
distinguishable from that at issue here. In Quinn, this
Court held that a deed conveying a “ ‘parcel of land’ ”
“ ‘to be used for railroad purposes only’ ” conveyed a fee
estate.
33
Not only did that deed omit any reference to a
“right of way,” but it specifically conveyed “all the
30
Id. at 100. See also Westman v Kiell, 183 Mich App 489, 494; 455
NW2d 45 (1990), holding that a deed conveying a “ ‘right of way upon and
across lands of Henry Salee...fortheusesandpurposes of said Railroad
Company’ ” transferred an easement rather than a fee. (Emphasis in
original.)
31
Jones, supra at 100 (emphasis added).
32
Mahar, supra at 139-140 (emphasis added).
33
Quinn, supra at 146.
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estate, right, title, claim and demand whatsoever of the
[grantor], both legal and equitable, in and to the said
premises....”
34
This language unambiguously showed
the grantors’ intent to convey their entire estate.
Similarly, the Court of Appeals held that the deed in
O’Dess v Grand TrunkWRCo
35
concerned a fee. In that
case, the deed at issue conveyed “all the estate, right,
title, claim, and demand of the party of the first part,
both legal and equitable.” Again, this language un-
equivocally manifested an intent to convey all the
grantor’s rights to the property.
This Court also held that the instrument at issue in
Epworth Assembly v Ludington & Northern Railway
36
conveyed a fee determinable. That conveyance pur-
ported to be a “quitclaim” deed:
“Provided, however, if, for any reasons, the property . . .
above described shall, for one year or longer, cease to be
used for railroad purposes and trains shall not be run over
the railroad track built or to be built on the land described,
then and in that case all of the land herein described,
together with all and singular the hereditaments and
appurtenances belonging or in anywise appertaining
thereto shall revert to the Epworth Assembly, of Luding-
ton, Michigan, its heirs and assigns, and this quitclaim
deed become null and void and of no effect and all rights,
title and interest in and to the lands above described
remain the same as would have been the case if this
quitclaim deed had never been executed.”
[37]
A quitclaim deed is, by definition, “[a] deed that con-
veys a grantor’s complete interest or claim in certain
real property but that neither warrants nor professes
34
Id. (emphasis added).
35
218 Mich App 694; 555 NW2d 261 (1996).
36
236 Mich 565; 211 NW 99 (1926).
37
Id. at 573 (emphasis added).
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that the title is valid.”
38
Again, then, the deed at issue in
Epworth showed the grantor’s intent to convey all its
interest in the property and lacked any language indi-
cating that the grantor intended to convey merely an
easement.
In short, we have consistently held that deeds
conveying a right-of-way transferred an easement.
And we have reached a contrary conclusion only in
cases in which the deed unmistakably expressed the
grantor’s intent to convey a fee simple. As shown
above, the deed at issue here falls squarely within the
first group.
B. THE NATURE OF THE GRANTEE’S RIGHT-OF-WAY
Although we have determined that the 1873 deed
conveyed an easement rather than a fee estate, our
inquiry into the scope of the interest conveyed to Mineral
Range Railroad, plaintiff’s predecessor in interest, is not
yet complete. An easement is, by nature, a limited
property interest. It is a right to “use the land burdened
by the easement” rather than a right to “occupy
and possess [the land] as does an estate owner.”
39
Accord-
ingly, an easement, whether appurtenant
40
or in
38
Black’s Law Dictionary (7th ed) (emphasis added). See also Putnam
v Russell, 86 Mich 389; 49 NW 147 (1891).
39
Bruce & Ely, The Law of Easements and Licenses in Land, § 1:1
(2004). See also Rusk v Grande, 332 Mich 665, 669; 52 NW2d 548 (1952),
quoting Morrill v Mackman, 24 Mich 279, 284 (1872), and McClintic-
Marshall Co v Ford Motor Co, 254 Mich 305, 317; 236 NW 792 (1931)
(“ ‘An easement is a right which one proprietor has to some profit, benefit
or lawful use, out of, or over, the estate of another proprietor.***Itdoes
not displace the general possession by the owner of the land, but the
person entitled to the easement has a qualified possession only, so far as
may be needful for its enjoyment.’ ”).
40
An easement appurtenant is one “created to benefit another tract of
land, the use of easement being incident to the ownership of that other
tract.” Black’s Law Dictionary (7th ed).
378 472 M
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gross,
41
is generally confined to a specific purpose.
42
In order to determine whether the easement at issue
here is limited to a specific purpose, we must discern
the parties’ intent as shown by the plain language of the
41
An easement in gross is one “benefiting a particular person and not
a particular piece of land.” Black’s Law Dictionary (7th ed).
42
See St Cecelia Society v Universal Car & Service Co, 213 Mich 569,
576-577; 182 NW 161 (1921), quoting 9 RCL, Easements, § 2 (“ ‘An
easement has been defined as a liberty, privilege or advantage in land
without profit, existing distinct from the ownership of the soil. It is a
right which one person has to use the land of another for a specific
purpose.’ ”); 28A CJS, Easements, § 2, pp 166-167 (“Generally, an ease-
ment is a right that one has to use another’s land for a specific purpose
that is not inconsistent with the other’s ownership interest....”);25Am
Jur 2d, Easements and Licenses, § 71, p 568 (“The rights of any person
having an easement in the land of another are measured and defined by
the purpose and character of the easement.”).
The dissent asserts that “[w]e infer also that the parties intended that
the permitted use of an easement will change over time absent language
to the contrary in the deed.” Post at 404. For this proposition, it cites
Restatement Property, 3d, § 4.10, p 592. This passage provides:
Except as limited by the terms of the servitude determined
under § 4.1, the holder of an easement or profit as defined in § 1.2
is entitled to use the servient estate in a manner that is reasonably
necessary for the convenient enjoyment of the servitude. The
manner, frequency, and intensity of the use may change over time to
take advantage of developments in technology and to accommodate
normal development of the dominant estate or enterprise benefited
by the servitude. Unless authorized by the terms of the servitude,
the holder is not entitled to cause unreasonable damage to the
servient estate or interfere unreasonably with its enjoyment.
This passage suggests that the “manner, frequency, and intensity” of the
grantee’s use of the easement may change through time; this is an
assertion with which we have no quarrel. But, where a deed grants an
easement limited to railroad purposes, it is only the “manner, frequency,
and intensity” of railroad uses that may change over time. The Restate-
ment does not suggest that the fundamental nature of an easement may
change through time. Moreover, while the dissent acknowledges that
specific language in the deed may curb the extent to which an easement
adapts to changing circumstances, post at 404, it fails to recognize the
limits imposed by the specific language in the deed at issue here.
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deed.
43
Here, the parties conveyed a right-of-way “for
the railroad” of the original grantee. This language
shows quite clearly that the parties intended to convey
an easement for a railroad. Even the paragraph reserv-
ing the grantor’s rights to extract minerals from the
strip of land at issue states that such extraction must be
performed “in such manner as not to interfere with the
construction or operation of said railroad.” Finally, the
deed’s habendum clause expressly states that the right-
of-way is the grantee’s “to have and to hold . . . for the
purpose and uses above stated and subject to the reser-
vations aforesaid ....”Theonly purpose and use men-
tioned in the instrument is the construction and opera-
tion of a railroad. We conclude, therefore, that the
easement conveyed by the 1873 deed is limited to
railroad purposes.
44
Plaintiff maintains that the interest conveyed by the
1873 deed is not limited to railroad purposes, referring
us to Quinn, supra, as support for its argument. In
Quinn, we held that the landowners had conveyed a fee
simple (rather than an easement) to the defendant
railway company and, thus, that the defendant was
entitled to drill for oil and gas in the subject property.
Justice F
EAD
, writing for the Court, reasoned, “Where
the land itself is conveyed, although for railroad pur-
poses only, without specific designation of a right of way,
the conveyance is in fee and not of an easement.”
45
He
43
Purlo, supra at 487-488.
44
The dissenting opinion concludes that “the deed created a right-of-
way for a transportation corridor” where the grantee could run a
railroad. Post at 404. We can find no mention of a “transportation
corridor” in the deed, and cannot locate any “broad language,” id. at 405,
that would support such a reading (nor does the dissent cite any such
language). We simply see no principled way to justify the dissent’s
reading in light of the applicable rules of construction.
45
Quinn, supra at 150-151.
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then rejected the proposition that the fee was limited to
a specific use: “Had the grant contained a reverter clause
the title would have been a determinable fee upon
condition subsequent.”
46
Plaintiff argues, therefore,
that the lack of a defeasance clause in the 1873 deed
indicates, as shown by Quinn, that the interest con-
veyed was not intended to be limited to railroad pur-
poses.
Plaintiff’s reliance on Quinn is misplaced, for that
case is distinguishable in an important sense from the
case at bar. At issue in Quinn was a fee simple—an
estate in land. Here, we are concerned with the scope of
an easement—an interest in land.
47
Fee simple estates
revert to the grantor only if they contain language
providing for reversion. Easements, on the other hand,
are inherently limited estates in land.
48
Thus, the prin-
ciples applicable to the fee simple in Quinn do not
translate to the easement under consideration in this
case.
We conclude, therefore, that the plain language of the
1873 deed limited the easement conveyed to the original
grantee to railroad purposes.
C. ABANDONMENT OF THE EASEMENT
Finally, we turn to the question whether plaintiff has
a valid interest in this easement limited to railroad
purposes. This easement, limited as it is to a particular
purpose, will “terminate[] as soon as such purpose
46
Id. at 152.
47
See Kitchen v Kitchen, 465 Mich 654, 659; 641 NW2d 245 (2002).
The dissenting opinion makes similar errors, first relying on Quinn to
(mis)interpret the language of the deed at issue here, post at 402, and
then citing the absence of “defeasance or reverter language” to argue
that the easement was not limited to railroad purposes. Id. at 405.
48
See note 33.
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ceases to exist, is abandoned, or is rendered impossible
of accomplishment.”
49
In this case, defendant alleges
that the easement was terminated because of the ac-
tions of plaintiff’s predecessor in interest. Thus, we
must determine whether plaintiff’s predecessor in
interest abandoned its interest in the Houghton
County right-of-way.
Before determining whether plaintiff’s predecessor
in interest abandoned the easement, however, a brief
overview of federal and state rails-to-trails legislation is
necessary. The Sixth Circuit Court of Appeals succinctly
summarized the applicable federal legislation in RLTD
R Corp v Surface Transportation Bd:
50
In the Transportation Act of 1920, Congress gave the
Interstate Commerce Commission (“ICC”) jurisdiction
over railroad track abandonments. Pursuant to the ICC
Termination Act of 1995, the ICC ceased to exist. Authority
over abandonment applications is now held by the [Surface
Transportation Board (STB)].
Prior to the enactment of the Transportation Act, state
and local authorities constrained railroad companies in their
efforts to abandon unprofitable tracks. In giving the
ICC/STB authority to grant or deny applications for aban-
donment, Congress sought to balance the railroad compa-
nies’ need to dispose of trackage that was no longer profit-
able with the public’s need for a working interstate track
system. If a railroad track falls within its jurisdiction, the
ICC/STB has exclusive authority to determine whether
abandonment will be permitted. The ICC/STB may approve
an abandonment after a full administrative proceeding, or it
may authorize abandonment by granting an exemption from
the section 10903 process for “out-of-service” rail lines. The
ICC/STB loses its jurisdiction over a rail line once the line is
abandoned pursuant to an ICC/STB authorization. Actual
49
25 Am Jur 2d, Easements and Licenses, § 96, p 594.
50
166 F3d 808 (CA 6, 1999).
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abandonment pursuant to authorization is known as “con-
summation.”
[51]
The 1976 Michigan State Transportation Preserva-
tion Act (MSTPA) works in concert with the federal
legislation. It declares that the “preservation of aban-
doned railroad rights of way for future rail use and
their interim use as public trails” is a “public pur-
pose.”
52
The act therefore requires railroad companies
wishing to abandon a railway to notify the state Depart-
ment of Transportation and authorizes the Department
of Transportation or the MDNR to acquire abandoned
railways.
53
If a right-of-way is acquired under the
MSTPA, the acquiring department “may preserve the
right-of-way for future use as a railroad line and, if
preserving it for that use, shall not permit any action
which would render it unsuitable for future rail use.”
54
51
Id. at 810-811 (citations omitted). In 1983, Congress amended the
National Trails System Act to create a “railbanking” program. See 16
USC 1247(d); Wright and Hester, supra at 356-357 (“The rails-to-trails
program was born after President Johnson signed the National Trails
System Act in 1968 and Congress, responding to the alarming increase in
railroad abandonments and the growing need for alternative transporta-
tion corridors, implemented what has come to be called its “railbanking”
policy through its amendment of the Trails Act in 1983.”). Federal law, as
the Sixth Circuit Court of Appeals noted, now
allows a railroad wishing to cease operations along a stretch of track
to negotiate with the state, municipality, or private group concern-
ing the transfer of financial and managerial responsibility for the
railroad corridor and the maintenance of the corridor for possible
future rail use—called “railbanking”. Railbanking is an alternative
to abandonment. With railbanking, the railroad maintains owner-
ship of the rail corridor, a third party makes interim use of the rail
corridor, and the ICC/STB’s jurisdiction over the rail corridor
continues. When a track is abandoned, however, ICC/STB jurisdic-
tion ceases, and, in the usual case, reversionary interests in the rail
corridor become effective. [RLTD R Corp, supra at 810-811.]
52
MCL 474.51(3).
53
MCL 474.56, 474.58.
54
MCL 474.60(11).
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With this background in the applicable federal and
state law, we turn now to the question whether Soo
Line, plaintiff’s predecessor in interest, abandoned the
right-of-way at issue here.
On September 29, 1982, the ICC authorized Soo
Line’s abandonment, for purposes of federal law, of the
railway at issue in this case. The ICC “certificate and
decision” reports that the Michigan Department of
Transportation originally provided financial assistance
to Soo Line on terms established by the ICC. After the
financial assistance agreement expired on October 1,
1982, the ICC granted Soo Line permission to abandon
the railway. The ICC’s decision included the following
terms:
Soo Line shall keep intact all of the right-of-way under-
ling [sic] the track, including all the bridges and culverts,
for a period of 120 days from the decided date of this
certificate and decision to permit any state or local govern-
ment agency or other interested party to negotiate the
acquisition for public use of all or any portion of the
right-of-way. In addition, Soo Line shall maintain the
Houghton Depot for 120 days from the decided date of this
certificate and decision. During this time, Soo Line shall
take reasonable steps to prevent significant alteration or
deterioration of the structure and afford to any public
agency or private organization wishing to acquire the
structure for public use the right of first refusal for its
acquisition.
Soo Line followed the procedures necessary to aban-
don the railroad and, after the 120-day period ordered
by the ICC, was free to abandon its right-of-way. That is
not to say, however, that the easement, a creature of
state law distinct from the rail that physically occupied
the right-of-way, was necessarily abandoned at the end
of the 120-day period prescribed by the ICC.
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An easement holder abandons a railroad right-of-way
when “non-user is accompanied by acts on the part of
the owner of either the dominant or servient tenement
which manifest an intention to abandon, and which
destroy the object for which the easement was created
or the means of its enjoyment....”
55
This principle was
recently summarized by the Court of Appeals in Lud-
ington & Northern Railway v Epworth Assembly:
To prove abandonment, both an intent to relinquish the
property and external acts putting that intention into
effect must be shown. Nonuse, by itself, is insufficient to
show abandonment. Rather, nonuse must be accompanied
by some act showing a clear intent to abandon.
[56]
In this case, it is clear that the railway is no longer
used. The question, therefore, is whether Soo Line
manifested an intent to abandon the underlying ease-
ment and not simply the railway that utilized the
easement.
This intent cannot necessarily be inferred from the
fact that a railroad company sought and obtained
permission from the ICC/STB to abandon a railway and
took action consistent with that federal authorization.
57
55
Van Bochove, supra at 101.
56
188 Mich App 25, 33; 468 NW2d 884 (1991) (citations omitted).
57
On this point, we agree with the dissent. We part company, of course,
in assessing the legal significance of Soo Line’s petition to abandon its
railroad under Michigan real property law.
The majority and dissent also differ on a related point. The dissenting
opinion presumes that we may rely on the views of Congress and federal
agencies on questions of state real property law such as abandonment.
See post at 397 (“Congress has made clear that use of a rail line as a
recreational trail after the issuance of a certificate of abandonment
should not be equated with abandonment of the easement.”). Assuming
the dissent’s assertions about the views of Congress are correct, we
believe that Justice K
ELLY
’s reliance on those views is misplaced. Unless
federal law expressly or implicitly preempts state law in this area, we see
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A railway located on an easement is analytically dis-
tinct, after all, from the easement itself. But as already
shown, the easement in this case is itself limited to
railroad purposes under the 1873 deed. Therefore, in
both seeking federal permission to abandon its railroad
and removing the rails themselves, Soo Line manifested
an intent to abandon the underlying easement (which
was limited to railroad uses) and took action consistent
with that intent.
58
The United States District Court for the Western
District of Michigan reached a similar conclusion in
Belka v Penn Central Corp.
59
In Belka, the plaintiffs
argued that the easement possessed by Penn Central
was limited to railroad purposes
60
and, therefore, that
no reason to defer to Congress in determining when an easement is
abandoned for purposes of Michigan’s common law of real property. See
Crosby v Nat’l Foreign Trade Council, 530 US 363, 372-373; 120 S Ct
2288; 147 L Ed 2d 352 (2000) (describing federal preemption principles).
58
Plaintiff’s argument to the contrary relies largely on the Court of
Appeals opinion in Strong v Detroit &MRCo, 167 Mich App 562; 423
NW2d 266 (1988). R ead carefully, Strong does little to advance plaintiff’s
cause. In that case, there was no indication that the easement was limited
to railroad purposes as was the right-of-way at issue here. It is not
surprising that the Court of Appeals would not hold that mere removal of
a railroad track constituted abandonment of an underlying property
interest when the interest was not limited to railroad purposes. More-
over, the easement holder in Strong filed notice of its easement under the
marketable record title act, MCL 565.103. This filing “indicated that [the
easement holder] intended to preserve its interest.” Strong, supra at 569.
59
1993 US Dist LEXIS 15836 (WD Mich, 1993) (unpublished), aff’d
without opinion 74 F3d 1240 (CA 6, 1996).
60
The conveyance at issue in Belka provided:
This indenture, Made this day of A.D. 18 ,
BETWEEN of in the County of , and
State of Michigan, of the first part, and the Kalamazoo, Allegan
and Grand Rapids Rail Road Company, of the second part, Witnes-
seth, That the said parties of the first part, in consideration of the
sum of , to them in hand paid, the receipt whereof is
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Penn Central abandoned the underlying easement
when it manifested its intent to abandon all railroad
operations. The court held that, in abandoning its
easement with STB permission, removing its tracks,
and attempting to sell its easement, Penn Central had
abandoned its railway under state property law. Penn
Central’s contention that it intended to keep the under-
lying easement, even as it abandoned the railway, was
rejected:
This argument has superficial appeal, but it breaks
down under scrutiny. The flaw in this argument is that
while Defendants claim no intent to abandon their “prop-
erty interest” they do not specify what that property
interest is. Whether Defendants intended to abandon their
property rights cannot be determined without consider-
ation of the nature of that property interest. Defendants
did not own a fee simple interest in the railroad corridor.
They had an easement to use it “for railroad purposes.”
hereby acknowledged, do grant, bargain, sell and confirm unto the
said party of the second part, and to their assigns FOREVER, a
RIGHT OF WAY in and over a certain strip of LAND, situate, lying
and being in [legal description] reference being made, for more
certain description of said strip, to the map of the route of said
Company, on file in the offices of the Register of Deeds for the
Counties of Kalamazoo and Allegan and Kent respectively, for the
said party of the second part, and their assigns and their servants
and agents to build, construct and maintain a Rail Road in and
over the said strip of land, and at all times freely to pass and
re-pass by themselves, their servants, agents and employees, with
their engines, carts, horses, cattle, carts, wagons and other ve-
hicles, and to transport freight and passengers, and to do all other
things properly connected with or incident to the location, build-
ing, maintaining, and running the said Road, and to use the earth
and other materials within said strip of land, for that purpose, TO
HAVE AND TO HOLD the said easements and privileges to the
said party of the second part, and to their assigns, FOREVER. And
the said parties of the first part for themselves and their heirs,
doth covenant and agree that they will WARRANT AND DEFEND
the above granted RIGHT OF WAY in the peaceable and quiet
possession of the said party of the second part, and their assigns,
FOREVER. [Id.at*2n2.]
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Accordingly, the issue for this Court is not whether Defen-
dants intended to abandon some nebulous concept of
“property rights”, but whether they intended to abandon
their right to use the property “for railroad purposes”.
[61]
We find the district court’s analysis in Belka persua-
sive. The easement originally granted to Mineral Range
Railroad, subsequently transferred to Soo Line Railroad,
and finally conveyed to plaintiff was limited to railroad
purposes. Therefore, Soo Line’s decision to seek federal
permission to cease all rail operations on the right-of-
way, its subsequent cessation of those activities after the
120-day period prescribed by the ICC , and its removal of
all railroad tracks on the strip of land constituted an
abandonment of the underlying property interest.
We have determined, therefore, that the 1873 deed
conveyed an easement limited to railroad uses and that
Soo Line abandoned that easement for state property
law purposes when it sought, obtained, and acted on the
ICC’s permission to abandon the railway in 1982.
Consequently, Soo Line did not have a valid property
interest in the Houghton County right-of-way to convey
to plaintiff in 1988. Defendant has an unencumbered
fee simple interest in the right-of-way and, as any
property owner in Michigan may do with its property,
may limit its use as it sees fit.
D. RESPONSE TO THE DISSENT
The dissenting opinion insists that we should not
have entertained defendant’s appeal at all because the
ICC/STB has exclusive jurisdiction over what is left of
Soo Line’s railroad in this area.
62
The dissent’s argu-
ment, in essence, is this:
61
Id. at *14-*15.
62
Post at 397.
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The record in this case contains nothing showing that the
Soo Line ever advised the ICC that it had completed aban-
donment as the certificate explicitly required. It appears
that no notice of consummation was filed with the ICC or
the STB. Consequently, in 1983, a year after the certificate
was issued, the abandonment authorization would have
expired. The rail line cannot be abandoned without a new
proceeding.
[63]
As an initial matter, we note that the dissent does not
argue that Soo Line actually failed to notify the ICC, but
argues instead that the record contains no evidence that
Soo Line provided notice. Of course, it would be just as
accurate to say that the record contains no evidence
that Soo Line failed to provide notice because, in fact,
neither party has raised the notice issue on which the
dissent now relies. It is hardly surprising, therefore,
that there is a gap in the evidentiary record on this
question.
64
We would be unwise indeed to draw sweep-
ing inferences from this sort of evidentiary “gap.”
Even if there were a factual basis for the dissent’s
argument, its legal rationale is deeply flawed. First and
foremost, the dissenting opinion relies on a provision of
the Code of Federal Regulations that was enacted almost
fifteen years after Soo Line’s application to abandon its
railroad and is, therefore, inapplicable here.
65
The dissent also relies on the fact that the ICC had a
“practice”
66
of requesting notice of abandonment in the
63
Post at 396.
64
That is not to say that the parties may waive or concede the question
of subject-matter jurisdiction. To the contrary, subject-matter jurisdic-
tion cannot be waived. Travelers Ins Co v Detroit Edison Co, 465 Mich
185, 204; 631 NW2d 733 (2001).
65
See post at 396, citing 49 CFR 1152.29(e)(2). 49 CFR 1152.29, which
provides that notice to the STB is necessary in order to consummate a
railway abandonment, did not exist until 1997. See, e.g., Becker v Surface
Transportation Bd, 328USAppDC5,6n2;132F3d60(1997).
66
See Consolidated Rail Corp v Surface Transportation Bd, 320 US
App DC 130, 135; 93 F3d 793 (1996), citing St Louis Southwestern R
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early 1980s
67
and that the ICC operated on the belief
that it lacked jurisdiction once a notice of abandonment
had been filed. We believe that the dissent misconstrues
the legal significance of this “practice.”
While the ICC has determined that its jurisdiction
terminated once notice of abandonment was filed,
neither the ICC nor the STB has ever concluded, as the
dissent does, that state courts lack jurisdiction as a
matter of law until notice of abandonment is filed or
until the ICC/STB has declared that its jurisdiction
has ended.
68
Indeed, even now that notice is actually
required by STB regulations, notice of abandonment is
not necessary to terminate the STB’s jurisdiction.
69
It is
simply conclusive evidence that the railroad has con-
summated its abandonment.
70
Abandonment may occur
Co—Abandonment—in Smith & Cherokee Cos, TX, 9 ICC 2d 406, 410 n
8 (1992) (noting that the “practice” of requiring notice ended in 1984).
67
Post at 396 n 5, citing 363 ICC 132, 142n2(1980). The authority
cited is an ICC opinion that states: “When a rail line has been fully
abandoned, it is no longer rail line and the transfer of the line is not
subject to our jurisdiction.” Id. at 135. The opinion provides in footnote
2 that “[a] line is fully abandoned after a certificate of public convenience
and necessity has been issued, and when operations have ceased, tariffs
have been canceled and a letter has been filed with the Commission that
the abandonment has been consummated.”
68
Although the STB “retains exclusive, plenary jurisdiction to deter-
mine whether there has been an abandonment sufficient to terminate its
jurisdiction,” Lucas v Bethel Twp, 319 F3d 595, 603 (CA 3, 2003), plaintiff
has not requested such a determination from the STB and the STB itself
has not intervened in this case.
69
See 49 CFR 1152.29(e)(2) (“Notices will be deemed conclusive on the
point of consummation if there are no legal or regulatory barriers to
consummation....”).
70
See, e.g., Consolidated Rail Corp, supra, at 798 (“In its October 5,
1995 Decision, the ICC also suggested that Conrail’s failure to notify the
Commission that the line had been abandoned was evidence of Conrail’s
uncertainty of purpose [regarding abandonment].”) (emphasis added); 61
FR 11174, 11177-11178, which included the following explanation of the
proposed rule that became 49 CFR 1152.29:
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—and, thus, the STB’s jurisdiction may terminate—
even in the absence of written notice.
71
In short, the dissent has offered neither a factual nor
legal basis to support its assertion that the STB has
exclusive jurisdiction over the present dispute. We con-
clude, therefore, that the dissenting opinion’s jurisdic-
tional argument is in error.
IV. CONCLUSION
We conclude that the Court of Appeals erred in
holding that plaintiff is entitled to summary disposi-
tion. The limited easement owned by plaintiff’s prede-
cessor in interest had been abandoned by the time the
predecessor purported to sell that property interest to
plaintiff. We therefore reverse the judgment of the
Court of Appeals and remand the matter to the trial
court for entry of summary disposition in defendant’s
favor.
T
AYLOR
, C.J., and C
AVANAGH
,W
EAVER
,C
ORRIGAN
, and
M
ARKMAN
, JJ., concurred with Y
OUNG
,J.
[U]nder our proposal, notices that are filed would be deemed
conclusive on the point of consummation if there are no legal or
regulatory barriers to consummation....Ifnonotice of consum-
mation of abandonment has been filed, we would continue to look
at the other facts and circumstances to determine if consumma-
tion of the abandonment had occurred.
71
See 49 CFR 1152.29(e)(2) (providing that notice is “deemed conclu-
sive” on the point of consummation in the absence of “legal or regulatory
barriers to consummation.” See also Lucas v Bethel Twp, 319 F3d 595, 603
n 11 (CA 3, 2003) (“Historically, the STB determined whether an aban-
donment was consummated by evaluating the carrier’s objective intent to
cease permanently or indefinitely all transportation service on the line.
This test leaves a great deal of uncertainty as to the rail line’s status,
however. Since 1997, the STB has taken steps to alleviate this problem by
renewing a requirement that railroads file with the agency a letter
confirming consummation of abandonment.”) (citation omitted).
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K
ELLY,
J. (dissenting). I agree with the majority’s
conclusion that plaintiff’s property interest is an ease-
ment rather than a fee simple. However, I conclude that
this Court should not find that the easement was aban-
doned.
Defendant has not shown that plaintiff’s predecessor,
the Soo Line Railroad Company, completed the federal
regulatory process for abandonment. Therefore, it ap-
pears that the rail line remains under the jurisdiction of
the Surface Transportation Board
1
for future reinstate-
ment of service. If that is the case, defendant may not
circumvent federal jurisdiction by obtaining a state
court judgment of abandonment.
Even if abandonment of the line were consummated
with the ICC, we should conclude that the Soo Line never
abandoned the underlying easement before conveying it
to plaintiff for a trail. The mere fact of the sale demon-
strates that the Soo Line intended to retain dominion
over the easement until disposing of it. If the company
believed in 1982 that it was abandoning this property
interest, it would not have sold a portion of it to plaintiff
in 1985.
Moreover, the parties who originally created the
easement did not intend to limit its use to a rail line.
Rather, they created a right-of-way to last forever, one
that can be used today as a recreational trail.
Therefore, the result reached by the trial court and
the Court of Appeals should be affirmed.
1
The Surface Transportation Board (STB) assumed the functions of
the Interstate Commerce Commission (ICC) effective January 1, 1996.
49 USC 10101-16106; 49 USC 10903; 49 USC 10501(a)(1). Railroad
Ventures, Inc v Surface Transportation Bd, 299 F3d 523, 530 (CA 6,
2002). For simplification, I refer to them both as the ICC because that
was the agency that governed the Soo Line at the time in question.
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FACTUAL BACKGROUND
In 1873, the Quincy Mining Company granted an
easement for a right-of-way to the Mineral Range
Railroad Company. Defendant now owns a portion of
the mining company’s former property through which
this right-of-way runs.
The Mineral Range Railroad built and for many
years operated a rail line on the right-of-way. It then
transferred the rail line and right-of-way to the Soo
Line Railroad. In the 1980s, the Soo Line discontinued
running trains on the rail line. Sometime after 1986, it
removed some of the tracks and, in 1988, sold the
right-of-way to plaintiff Michigan Department of Natu-
ral Resources. Plaintiff maintained the former railway
grade as a recreational trail. But, nine years later,
defendant installed a fence across the trail, blocking its
use as a trail.
PROCEEDINGS BELOW
Plaintiff filed suit seeking an injunction to force
removal of the fence. The trial court initially held that
Mineral Range had an unrestricted fee simple interest
that it passed to plaintiff by deed. The Court of Appeals
reversed that holding and remanded the case. Unpub-
lished opinion per curiam, issued June 5, 2001 (Docket
No. 222645). It held that the deed conveyed an ease-
ment, not a fee simple interest, and remanded the case
to the circuit court for a determination whether the
easement remained in existence.
On remand, the circuit court granted plaintiff’s mo-
tion for summary disposition. It held that the easement
was not limited to use as a rail line. Moreover, it found
that the Soo Line had not abandoned the easement.
Thus, plaintiff was entitled to maintain the right-of-
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way as a recreational trail. The Court of Appeals
affirmed that decision. Unpublished opinion per cu-
riam, issued June 3, 2003 (Docket No. 240908). We
granted defendant’s application for leave to appeal. 470
Mich 868 (2004).
STANDARD OF REVIEW
The existence of an easement is a question of law.
Mahar v Grand RapidsTRCo,174 Mich 138, 142; 140
NW 535 (1913); Epworth Assembly v Ludington &
Northern Railway, 236 Mich 565; 211 NW 99 (1926). In
contrast, the permissible use of an easement is a ques-
tion of fact. Hanselman v Grand Trunk W R Co, 163
Mich 496, 499; 128 NW 732 (1910); 65 Am Jur 2d,
Railroads, § 60, pp 247-248.
Trial courts may draw inferences of fact. MCR
7.316(A)(6). They are presumed correct
2
and may not be
set aside unless found to be clearly erroneous. MCR
2.613(C). We review actions to establish title de novo.
Farmer v Fruehauf Trailer Co, 345 Mich 592, 595; 76
NW2d 859 (1956).
A STATE COURT MAY NOT DECLARE A RAILROAD EASEMENT
ABANDONED BEFORE ABANDONMENT OF THE RAIL LINE
HAS BEEN CONSUMMATED WITH THE ICC
Under federal transportation law involving rail lines,
abandonment has a specific meaning. Bingham Twp v
RLTD R Corp, 463 Mich 634, 635-636; 624 NW2d 725
(2001), citing RLTD R Corp v Surface Transportation
Bd, 166 F3d 808, 810-811 (CA 6, 1999). It refers to
removal of a rail line from the national transportation
system. Nat’l Ass’n of Reversionary Prop Owners v
Surface Transportation Bd, 332 US App DC 325, 327;
2
Beason v Beason, 435 Mich 791, 804; 460 NW2d 207 (1990).
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158 F3d 135 (1998) (NARPO), citing Preseault v Inter-
state Commerce Comm, 494 US 1, 5-6 n 3; 110 S Ct 914;
108 L Ed 2d 1 (1990) (unanimous).
Under the federal Transportation Act,
3
a rail carrier
may not remove a rail line from national service until it
obtains a certificate of abandonment from the ICC. 49
USC 10903(a)(1)(B). HayfieldNRCovChicago&NW
Transportation Co, 467 US 622, 628; 104 S Ct 2610; 81
L Ed 2d 527 (1984) (unanimous). The certificate verifies
that future public convenience and necessity will ac-
commodate cessation of the company’s rail service on
the line. Id. It reflects the ICC’s determination that the
line is no longer needed for interstate rail service.
Railroad Ventures, Inc v Surface Transportation Bd,
299 F3d 523, 531n4(CA6,2002), citing Preseault at 6
n3.
Years ago, the ICC developed a mechanism to retain
jurisdiction over a rail line if a carrier did not realize its
stated intent to abandon the line. It imposed conditions
on its issuance of a certificate of abandonment,
4
main-
taining jurisdiction over the rail line until the condi-
tions were met. Preseault at 8. A line no longer in use,
but not officially abandoned, could be reactivated later.
In the meantime, it was termed “discontinued.”
NARPO at 328.
In this case, the Soo Line sought, and in 1982 was
issued, a certificate of abandonment. It expressly
stated:
1. This certificate and decision is effective October 1,
1982....
3
Transportation Act of 1920, ch 91, § 402(18)-(22), 41 Stat 477-478,
recodified at 49 USC 10903(a) (1976 ed, Supp III).
4
The ICC could even impose postabandonment conditions. Hayfield at
633.
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2. If the authority granted by this certificate and deci-
sion is exercised, Soo Line shall advise this Commission in
writing, immediately after abandonment of the line of
railroad, of the date on which the abandonment actually
took place.
3. If the authority granted in this certificate and deci-
sion is not exercised within one year from its effective date,
it shall be of no further force and effect. [ICC Certificate
and Decision, Soo Line Railroad Company, Docket No.
AB-57 (Sub-No. 7) (Decided September 29, 1982).]
The majority erroneously states that the “Soo Line
followed the procedures necessary to abandon” the rail
line. Ante at 384. The record in this case contains
nothing showing that the Soo Line ever advised the ICC
that it had completed abandonment as the certificate
explicitly required. It appears that no notice of consum-
mation was filed with the ICC or the STB.
5
Conse-
quently, in 1983, a year after the certificate was issued,
the abandonment authorization would have expired.
The rail line cannot be abandoned without a new
proceeding. 49 CFR 1152.29(e)(2);
6
NARPO at 329 n 7.
7
5
As early as 1980, an ICC Notice of Final Rules and Exemptions made
clear that the ICC retains jurisdiction of a rail line for which the
notification of abandonment has not been submitted. 363 ICC 132, n 2
(1980). For a period in the mid-1980s, the ICC did not require the notice
of consummation of abandonment. This period was after the abandon-
ment certificate in this case expired. Also, the ICC later reinstated and
codified the requirement to eliminate uncertainty over whether a line has
been abandoned and is no longer under the jurisdiction of the ICC. This
served to preclude a rail carrier from holding a track indefinitely in an
uncertain status. Becker v Surface Transportation Bd, 328 US App DC 5;
132F3d60,61n2,63n4(1997). See 49 CFR 1152.24(f), 1152.29(e)(2),
1152.50(e).
6
The majority asserts that I rely “First and foremost” on this provi-
sion. Ante at 389. Actually, I rely primarily on the explicit terms of the
certificate issued to the Soo Line. I cite the regulation to substantiate my
conclusion that, because the authorization to abandon granted to the Soo
Line appears to have lapsed, a new proceeding is required.
7
I note that the federal railbanking program was but a glimmer in
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Moreover, defendant may not divest the ICC of its
jurisdiction over the rail line through a collateral state
court proceeding. Phillips Co v Southern Pacific R Corp,
902 F Supp 1310, 1317 (D Colo, 1995). ICC jurisdiction
over a rail line precludes a state court from making a
finding that a state property law interest has been
extinguished by evidence of abandonment. Preseault at
8.
Therefore, it appears that this Court lacks jurisdic-
tion to find that the Soo Line abandoned its easement.
EVEN IF THE SOO LINE ABANDONED THE RAIL LINE,
IT DID NOT ABANDON THE EASEMENT
However, the majority is unpersuaded and finds that
the Soo Line did abandon the easement. I believe that,
even if the Soo Line consummated abandonment of the
rail line with the ICC, it did not abandon the easement
on which the line was built.
Abandonment, like the scope of an easement, is a
question of fact. McMorran Milling Co v Pere Marquette
RCo, 210 Mich 381, 391, 393-394; 178 NW 274 (1920).
Whether it has occurred is determined by the actions of
the parties. Van Slooten v Larsen, 410 Mich 21, 50; 299
NW2d 704 (1980), app dis sub nom Craig v Bickel, 455
US 901 (1982).
Congress has made clear that use of a rail line as a
recreational trail after the issuance of a certificate of
abandonment should not be equated with abandonment
of the easement. The ICC’s regulatory authority over
rail corridors includes conserving them for future use
for commerce and for current use as recreational trails.
Congress’s eye when the STB issued its certificate of abandonment to the
Soo Line in 1982. The Soo Line could not have used this program at that
time because it did not exist.
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The Railroad Revitalization and Regulatory R eform Act
of 1976 (4-R Act)
8
provided for mandatory transfers of corridors proposed for
abandonment to other carriers, and directed the ICC to
impose conditions barring the disposition of railroad
rights-of-way for 180 days in order to allow for possible
transfers for public use, including for trails. [H R Subcomm
on Com and Admin L of the Jud Comm, Litigation and Its
Effect on the Rail-to-Trails Program, 107th Cong at 57
(June 20, 2002) (statement of Andrea Ferster, General
Counsel, Rails-to-Trails Conservancy).]
See Preseault at 5-6.
The Rails-to-Trails Act
9
gave the ICC oversight au-
thority in the conversion of railroad rights-of-way to
recreational trails when a rail carrier seeks permission
from the ICC to cease service. Id. at 59-60. This
authority extends to rights-of-way that are not in use
for railroad transportation. Preseault at 6; Caldwell v
United States, 391 F3d 1226, 1229-1230 (CA Fed Cir,
2004).
The United States Supreme Court has stated that,
when a railroad company “abandons” a line, it does
nothing more than divest the ICC of authority over the
line. The Court said that Congress intended, when
writing the act,
that interim use of a railroad right-of-way for trail use,
when the route itself remains intact for future railroad
purposes, shall not constitute an abandonment of such
rights-of-way for railroad purposes. This finding alone
should eliminate many of the problems with this program.
The concept of attempting to establish trails only after the
8
Pub L 94-210, 90 Stat 144, as amended, 49 USC 10906 (1982 ed).
9
National Trails System Act Amendments of 1983, Pub L 98-11, § 208,
97 Stat 42, 48 (1983) (codified as amended at 16 USC 1247(d) (Supp II,
1996).
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formal abandonment of a railroad right-of-way is self-
defeating; once a right-of-way is abandoned for railroad
purposes there may be nothing left for trail use. This
amendment would ensure that potential interim trail use
will be considered prior to abandonment. [Preseault at 8,
citingHRRepNo.98-28, pp 8-9 (1983); S R ep No. 98-1,
p 9 (1983).]
The Court opined that every rail line is “a potentially
valuable national asset that merits preservation even if
no future rail use for it is currently foreseeable.”
Preseault at 19. Thus, rail-to-trail conversions do not
constitute abandonment of a property right under state
law, even if the easement was specifically created for
railroad purposes only. Preseault at 8.
10
The majority states that the Rails-to-Trails Act re-
quires a railroad company to “bank” its right-of-way in
order to preserve its property interest. This is untrue.
Buffalo Twp v Jones, 571 Pa 637, 651; 813 A2d 659
(2002), cert den Jones v Buffalo Twp, 540 US 821
(2003). Authorization by the ICC to put a railway
right-of-way into interim use as a trail is not required as
a matter of law. Citizens Against Rails-to-Trails v
Surface Transportation Bd, 347 US App DC 382, 391;
267 F3d 1144 (2001); Southern Pacific Transportation
10
Accordingly, courts have not considered the ICC’s certification of a
railroad company’s abandonment of a line as evidence that the company
abandoned its easement. See Rail Abandonments–Use of Rights-of-Way
as Trails; Rail Abandonments–Use of Rights-of-Way as Trails–Supple-
mental Trail Act Procedures, 5 ICC 2d 370, *3 (1989) (“Once a carrier
exercises the authority granted in a regular abandonment certificate the
line is no longer part of the national transportation system.”); Barney v
Burlington N R Co, Inc, 490 NW2d 726, 729, 730 (SD, 1992), cert den sub
nom Kaubisch v South Dakota, 507 US 914 (1993); Chevy Chase Land Co
v United States, 355 Md 110, 169-171; 733 A2d 1055 (1999), cert den 531
US 957 (2000); State of Minnesota, by Washington Wildlife Preservation,
Inc v Minnesota, 329 NW2d 543, 548 (Minn, 1983), cert den 463 US 1209
(1983).
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Co—Exemption—Abandonment of Service in San Mateo
Co, Ca, 1991 WL 108272 (ICC, 1991).
THERE IS ABUNDANT EVIDENCE THAT THE
SOO LINE DID NOT ABANDON THE EASEMENT
The trial court found that the Soo Line had no intent
to give up its easement. Because there was ample
evidence supporting this ruling, it was not clearly
erroneous.
The Soo Line did not immediately remove its tracks.
They remained in place on this parcel at least through
1986 when it was appraised. Some of the tracks remain
today, as do other structures elsewhere on the right-of-
way, such as bridges.
The facts of the Belka v Penn Central Corp
11
decision
cited by the majority, and Becker, contrast with the facts
in this case. In Belka, the transportation corridor was
no longer intact. The land had been broken into seg-
ments that could not be restored for future rail service.
Belka at 18-19.
In contrast, the right of way in this case remained a
viable transportation corridor in use by recreational
vehicles until defendant erected its fence. Although its
path may have been difficult for some to identify during
the litigation, ante at 366, it is without question that
plaintiff identified and maintained it as a corridor for
recreational vehicles.
In Becker, the rail carrier refused to negotiate to sell
the rail line. It preferred to walk away from its property
interest. The Soo Line’s conduct, on the other hand,
demonstrates an intent not to abandon its property
interest in the right-of-way. Three years after filing its
11
1993 US Dist LEXIS 15836 (WD Mich, 1993) (unpublished), aff’d
without opinion 74 F3d 1240 (CA 6, 1996).
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notice of abandonment with the ICC, the Soo Line sold
a utility easement over the land to the Michigan Bell
Telephone Company.
In other cases, perhaps in this one, a rail line would
file a notice of abandonment with the ICC as a first step
in obtaining financial assistance. The intent might be to
secure a means of maintaining operation rather than
abandoning it. Chevy Chase Land Co v United States,
355 Md 110, 172-173; 733 A2d 1055 (1999).
Intent to abandon is ascertained by examining the
totality of the circumstances.
12
The Soo Line stopped
using the right-of-way for a period in this case. How-
ever, that may not have signified an intent to abandon
it. McMorran at 394. Ceasing operation, removing
track, and canceling tariffs are consistent with an
intent to retain the right to resume service. Becker at
62, quoting Birt v Surface Transportation Bd, 319 US
App DC 357, 362-363; 90 F3d 580 (1996). See also
Strong v Detroit & M R Co, 167 Mich App 562, 569; 423
NW2d 266 (1988). More is needed in order to conclu-
sively prove an intent to abandon a property right. That
evidence is lacking here. Because there was ample
evidence supporting the trial court’s factual findings,
they should be upheld.
THE EASEMENT WAS NOT PERPETUALLY
RESTRICTED TO USE AS A RAIL LINE
Even if the Soo Line retained its property interest in
the easement until conveying it to plaintiff, the ease-
12
In Glosemeyer v United States, 45 Fed Cl 771 (2000), the United
States Court of Federal Claims held that an application to the ICC for
authority to abandon was clear evidence of intent to abandon an
easement only if “confirmed by conduct.” Id. at 777. The Pennsylvania
Supreme Court has also held that filing a certificate “must be coupled
with external acts in furtherance of abandonment.” Buffalo Twp v Jones,
571 Pa 637, 647; 813 A2d 659 (2002).
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ment cannot be used for a trail unless its scope includes
trails. The majority finds that the easement was for
railroad purposes only. It is incorrect.
Where an easement is granted and the scope of its
use is in question, we attempt to discern the parties’
intent. Intent is determined by applying principles
similar to those used when contracts are construed. 1
Restatement Property, 3d, § 4.1, comment d, p 499.
First, the terms of the conveyance itself are examined.
Epworth at 575; Quinn v Pere Marquette R Co, 256 Mich
143, 150; 239 NW 376 (1931).
In this case, the conveyance was by deed. Under its
terms, Quincy gave Mineral Range and “its successors
and assigns forever a right of way for the railroad of”
Mineral Range. It later stated that Mineral Range
would have and hold the strip of land “for the purpose
and uses above stated....”
This Court has held that such a statement of
purpose in a conveyance for a railroad does not mean
that the land can be used only for a railroad. In Quinn,
a warranty deed conveyed a parcel “ ‘to be used for
railroad purposes only.’ ” Id. at 146. Like the deed in
this case, the deed in Quinn did not contain a reverter
clause. After considering the circumstances surround-
ing the conveyance, the Court concluded that the
statement in the deed was merely a declaration of the
purpose of the grant. It did not prevent the right-of-
way from being used later for other purposes. Id. at
151. Accord 65 Am Jur 2d, Railroads, § 61, p 248, and
§ 68, p 252.
By contrast, a right-of-way can be limited to use only
for a railroad where it is explicitly stated in the convey-
ance. In Epworth, supra at 568, the deed to the railroad
recited that the parcel was “ ‘to be used for railroad
purposes only.’ ” It continued, “ ‘If, for any reason, the
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property... shall... cease to be used for railroad
purposes and trains shall not be run over the railroad
track,’ ” then the property reverts to the grantor. Id. at
573. In that case, the Court held that the parties clearly
intended the property never to be used for anything
other than a railroad.
These principles apply also to deeds creating ease-
ments. In Hickox v Chicago&CSRCo,
13
the deed for
a right-of-way stated that if the property ceased “ ‘to be
used and operated as a railroad . . . then . . . the right-
of-way...shall terminate.’ ” Id. at 619. The Court held
that the land had to be used to operate a railway, even
though it was not limited to running trains, or the
easement ceased. Id. at 620-621.
14
It is not uncommon for a deed creating an easement
to describe the scope of the easement in general terms.
When a controversy over scope of usage arises, it falls to
courts to determine whether the parties intended to
allow the land to be put to uses not specified in the deed.
1 Restatement Property, 3d, § 4.1, comment b, pp 498-
499.
As a general statement, the easement holder is said
to enjoy all rights reasonably necessary and proper to
fully use the easement. Unverzagt v Miller, 306 Mich
260, 265; 10 NW2d 849 (1943), citing 9 RCL, p 784; 1
Restatement Property, 3d, § 4.10, p 592; 5 Restatement
Property, § 450, comment e, pp 2904-2905.
13
78 Mich 615; 44 NW 143 (1889).
14
See also MacLeod v Hamilton, 254 Mich 653; 236 NW 912 (1931). In
that case, a right-of-way to build a drain was granted “ ‘for no other
purposewhatever....’”Id. at 656. When it ceased to be used for a drain,
the right-of-way ceased to exist. Id. at 656-657. Contrary to the majority’s
assertion, before today’s decision, this Court has consistently applied
these principles both to deeds for fee simple interests and to easement
interests. Ante at 381.
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If the wording in a deed is not definitive, we infer
from the circumstances surrounding the conveyance
what unspecified uses the parties intended to allow.
Newaygo Mfg Co v Chicago&WMRCo,64 Mich 114,
122-123; 30 NW 910 (1887); 1 Restatement Property,
3d, § 4.10, comment a, p 592, and comment d, p 595. We
bear in mind that easements are permanent rights. 1
Restatement Property, 3d, § 4.1, comment b, p 498.
Also, the rights of the easement holder are superior to
those of the owner in fee simple. Cantieny v Friebe, 341
Mich 143, 146; 67 NW2d 102 (1954), quoting Hassel-
bring v Koepke, 263 Mich 466, 475; 248 NW 869 (1933),
quoting Harvey v Crane, 85 Mich 316, 322; 48 NW 582
(1891), citing Herman v Roberts, 119 NY 37; 23 NE 442
(1890), East Tennessee,V&GRCovTelford’s Execu-
tors, 89 Tenn 293; 14 SW 776 (1890), and KansasCRCo
v Allen, 22 Kan 285 (1879).
We infer also that the parties intended that the
permitted use of an easement will change over time
absent language to the contrary in the deed. This
inference effectuates the intent, which we presume the
parties entertained, that the right-of-way remain vi-
able. 1 Restatement Property, 3d, § 4.10, p 592.
In this case, the deed created a right-of-way for a
transportation corridor, a kind of highway available for
public use. See Elliott on Roads and Streets, § 1, Mar-
thensvB&ORCo,170 W Va 33, 38; 289 SE2d 706
(1982), citing Eckington & Soldiers’ Home R Co v
McDevitt, 191 US 103; 24 S Ct 36; 48 L Ed 112 (1903),
and United States v Trans-Missouri Freight Ass’n, 166
US 290; 17 S Ct 540; 41 L Ed 1007 (1897).
15
The deed
assigned the right-of-way “forever,” thus creating a
15
Thus, it would have been redundant for the parties to describe the
easement as both a right-of-way and as a transportation corridor, as the
majority seems to require. Ante at 380 n 44.
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permanent interest. Its initial purpose was to permit
the Mineral Range Railroad to build and run a railroad
artery. It contains no defeasance or reverter language
suggesting that the parties intended to forever limit the
use of the right-of-way to a railroad.
The parties had to know that easements are trans-
ferable and binding on subsequent owners. The fact
that they used broad language suggests that they in-
tended to create a corridor that over time might accom-
modate modes of transportation other than railroads.
16
Thus, I would hold that this deed created a right-of-way
that the parties intended not to limit to a railroad.
17
It
was not extinguished as a matter of law when it ceased
to be used for railroad purposes.
PLAINTIFF’S RIGHT-OF-WAY MAY BE
USED AS A RECREATIONAL TRAIL
This Court has held that, where broad language in an
easement permits uses not stated, those uses must not
impose an additional or increased burden on the servi-
ent estate. Crew’s Die Casting Corp v Davidow, 369
Mich 541, 546; 120 NW2d 238 (1963), quoting Delaney
v Pond, 350 Mich 685, 687; 86 NW2d 816 (1957). Use for
recreational travel may include foot travel, bicycles,
horses, and recreational vehicles. All have been ad-
judged to be within the scope of a right-of-way. See
WWP, supra.
16
This is similar to the concept that a right-of-way for a road to be used
by horse-drawn buggies might later be used by automobiles. “[A]n
easement holder may utilize such technological improvements as are
reasonably necessary to carry out the purpose of the grant....”25Am
Jur 2d, Easements and Licenses, § 76, p 575 (2004).
17
Defendant likely understood this at the time it acquired the servient
estate. It did not object later when the Soo Line granted a utility
easement in the right-of-way. Nor did it object during the first nine years
that plaintiff used the right-of-way as a recreational trail.
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Uses of a right-of-way interfere with the enjoyment
of servient estates to varying degrees. With respect to
recreational uses, hikers, equestrians, and bicyclists
pose little interference. Snowmobiles and other off-road
vehicles are more intrusive. But the most intrusive of
recreational vehicles is less intrusive than trains.
Trains may travel all hours of the day or night.
Defendant’s argument that the easement is more
heavily used as a recreational trail than it was as a
railroad misunderstands the scope of the easement.
Defendant assumes that trains may run intermittently
merely because that had been the custom. However, the
easement here put no restrictions on the scheduling of
Mineral Range’s trains. They could have run inces-
santly and still been within the scope of the easement.
Trains are loud and cause damaging vibration. Snow-
mobiles and recreational vehicles are less noisy and
cause less vibration. Also, they are used on a seasonal
basis. Other remedies are available to address problems
associated with excessive speed or traffic volume on a
recreational trail, such as speed limits and permit
requirements.
Trains have at least as great a capacity as have
recreational vehicles to serve as a means of transporta-
tion for lawbreakers. Trains can be boarded or departed
from at locations where they must pass slowly. This case
involves such a location, in a town near a bridge. A
public recreational trail represents no greater safety
hazard to adjacent landowners than trains that va-
grants ride. Trains do not impose a substantially differ-
ent burden on adjacent landowners than highways or
harbors. Hence, recreational use of the right-of-way
here does not substantially increase the burden on
plaintiff’s estate over its use by a railroad.
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CONCLUSION
From the record in this case, it appears that the
section of the Soo Line railway corridor involved re-
mains under the jurisdiction of the Surface Transpor-
tation Board. As a consequence, this Court is without
jurisdiction to determine whether the easement on
which it was built has been abandoned.
Moreover, even if the Soo Line consummated aban-
donment of the line through the STB’s predecessor, it
does not follow that it abandoned the underlying ease-
ment. The trial court made the finding based on ample
evidence that it did not. The Court of Appeals agreed. I
have reached the same conclusion.
In addition, I agree with the lower courts that the
easement was not restricted to use for a railroad.
Quincy Mining Company and the Mineral Range Rail-
road intended to create a perpetual easement for a
right-of-way. Initially, it was for a rail line, but it was
not explicitly limited to that use. Also, the deed did not
provide that the property right would revert to Quincy
or its successor if the railroad abandoned its line.
Consequently, I would find that the parties intended to
create a transportation corridor that would remain
viable “forever” as the easement holder’s transporta-
tion needs developed.
Today’s use of the right-of-way for recreational travel
is consistent with its former use as a railway. The
burden on the servient estate was not increased when
the change occurred. In fact, recreational travel im-
poses a lesser burden.
Thus, I would affirm the result of the trial court and
the Court of Appeals and hold that plaintiff may use the
right-of-way for its trail.
2005] DNR v C
ARMODY
-L
AHTI
407
D
ISSENTING
O
PINION BY
K
ELLY,
J
.
ELEZOVIC v FORD MOTOR COMPANY
Docket No. 125166. Argued December 8, 2004 (Calendar No. 4). Decided
June 1, 2005.
Lula and Joseph Elezovic brought an action in the Wayne Circuit
Court against Ford Motor Company and Daniel P. Bennett,
seeking, under the Civil Rights Act (CRA), MCL 37.210 et seq.,
damages for alleged sexual harassment resulting from a hostile
work environment. The plaintiffs alleged that Bennett, a super-
visor at the Ford plant where Lula Elezovic (plaintiff) worked,
exposed himself to the plaintiff, requested oral sex, and repeat-
edly engaged in other sexually offensive conduct. The court,
Kathleen Macdonald, J., granted the defendants’ joint motion in
limine to exclude evidence of Bennett’s prior criminal misde-
meanor conviction of indecent exposure, which involved conduct
that did not occur on Ford property and did not involve Ford
employees. The court later granted directed verdicts in favor of
the defendants. The Court of Appeals, J
ANSEN
, P.J., and N
EFF
,J.
(K
ELLY
, J., concurring), affirmed. 259 Mich App 187 (2003). The
Court of Appeals held that it was bound to follow the decision in
Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464 (2002),
that a supervisor engaging in activity prohibited by the CRA may
not be held individually liable for violating a plaintiff’s civil
rights. The Court stated that, were it not bound by MCR
7.215(J)(1) to follow Jager, it would reach the opposite result.
The Court also found that Ford did not have sufficient notice of
the alleged harassment. The plaintiff appealed. 470 Mich 892
(2004).
In an opinion by Chief Justice T
AYLOR
, joined by Justices
C
ORRIGAN,
Y
OUNG,
and M
ARKMAN
, the Supreme Court held:
An agent of an employer may be held individually liable under
the CRA. Ford did not have sufficient reasonable notice of the
alleged harassment. The judgment of the Court of Appeals must be
reversed in part and affirmed in part, and the case must be
remanded to the circuit court for further proceedings regarding
Bennett.
1. The CRA defines an “employer” as a “person,” which is
defined to include a corporation. The CRA also states that an
“employer” includes an “agent of that person.” The Legislature,
408 472 M
ICH
408 [June
by including “agent” within the definition of “employer” did not
intend to only provide vicarious liability for the agent’s employer,
but also created individual liability for an employer’s agent.
Bennett may be sued individually under the CRA.
2. Federal decisions construing Title VII of the federal civil
rights act and holding that there is no individual liability under
the federal act should not be followed because it would lead to a
result contrary to the text of the CRA. The history of amendments
of the CRA does not preclude a finding of individual liability on the
part of an agent of an employer.
3. The fact that the plaintiff told two low-level supervisors, in
confidence, that Bennett had exposed himself did not constitute
reasonable notice to Ford. Letters sent to Ford by the plaintiff’s
psychologist and attorney mentioning “harassment” or “hostile
environment” were insufficient to give Ford reasonable notice of
sexual harassment, given the plaintiff’s prior complaints against
Bennett that were not sexual in nature. A reasonable employer
would not, under the totality of the circumstances in this case,
have been on notice of a substantial probability that sexual
harassment was occurring.
4. The trial court did not abuse its discretion in precluding
evidence of Bennett’s prior indecent exposure conviction. The
conviction had been expunged before the trial in this matter and
under MCL 780.623(5) the evidence was not admissible. The trial
court did not err in holding that the prejudice to Ford that would
result from the evidence would substantially outweigh any proba-
tive value it might have.
5. The opinion in Jager must be overruled. The part of the
judgment of the Court of Appeals that affirmed the directed
verdict in favor of Ford must be affirmed and the part of the
judgment that affirmed the directed verdict in favor of Bennett
must be reversed. The matter must be remanded to the trial court
for further proceedings regarding Bennett and consistent with the
Supreme Court’s opinion.
Justice C
AVANAGH
, joined by Justice K
ELLY
, concurring in part
and dissenting in part, dissented from the opinion of the majority
with regard to the issues whether the CRA provides for individual
liability against an agent of an employer and whether sufficient
evidence was presented to allow the jury to decide whether Ford
had notice of the alleged sexual harassment. The CRA does not
provide for individual liability against an agent of an employer, and
the plaintiff provided sufficient evidence to allow the jury to decide
the notice issue. The majority reached the correct result in this
case when it determined that the trial court did not abuse its
2005] E
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OTOR
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409
discretion by excluding evidence of the alleged sexual harasser’s
expunged indecent exposure conviction.
Justice W
EAVER
, concurring in part and dissenting in part,
concurred in the majority’s conclusions that the trial court’s ruling
on the defendants’ motion in limine was not an abuse of discretion
and that the trial court’s decision to exclude the evidence of
Bennett’s expunged conviction should be affirmed. She dissents,
however, from the majority’s conclusion that the CRA provides for
individual liability against an agent of an employer and from its
conclusion that Ford was entitled to a directed verdict because the
plaintiff failed to establish that Ford had notice of the sexual
harassment.
The Legislature included the word “agent” in the definition of
“employer” to denote respondeat superior liability, not individual
liability. The conclusion of the Court of Appeals that there is no
individual liability under the act should be affirmed. The opinion
in Jager v Nationwide Truck Brokers, Inc, should not be overruled.
Considering all the evidence and the reasonable inferences that
may be drawn from it, there are factual questions about which
reasonable jurors could differ regarding whether Ford had notice
of the sexual harassment. Therefore, the directed verdict in favor
of Ford with regard to the question of notice should be reversed.
Affirmed in part, reversed in part, and remanded.
C
IVIL
R
IGHTS —
W
ORKPLACE
S
EXUAL
H
ARASSMENT —
S
UPERVISORS
.
An agent of an employer may be held individually liable under the
Civil Rights Act for sexually harassing an employee in the work-
place (MCL 37.2101 et seq.).
Mark Granzotto, P.C. (by Mark Granzotto), and Ed-
wards & Jennings, P.C. (by Alice B. Jennings), for the
plaintiff.
Kienbaum Opperwall Hardy & Pelton, P.L.C. (by
Elizabeth Hardy and Julia Turner Baumhart)(Patricia
J. Boyle, of counsel), for the defendants.
Amici Curiae:
Scheff & Washington, P.C. (by George B. Washington
and Miranda K.S. Massie), for Justine Maldonado,
Milissa McClements, and Pamela Perez.
410 472 M
ICH
408 [June
Carol Hogan for Michigan Conference of the Na-
tional Organization for Women.
T
AYLOR,
C.J. At issue in this case is (1) whether the
Michigan Civil Rights Act (CRA)
1
provides a cause of
action against an individual agent of an employer and
(2) whether plaintiff’s employer, Ford Motor Company,
was entitled to a directed verdict in plaintiff’s sexual
harassment lawsuit against it.
We hold that an agent may be individually sued
under § 37.2202(1)(a)
2
of the CRA. Thus, we overrule
Jager v Nationwide Truck Brokers, Inc, 252 Mich App
464, 485; 652 NW2d 503 (2002), because it held to the
contrary,
3
and reverse the Court of Appeals judgment in
favor of Daniel Bennett that followed Jager.
We also hold, consistently with the lower courts, that
Ford was entitled to a directed verdict. Thus, we affirm
the trial court and Court of Appeals judgments in favor
of Ford.
I. FACTS AND PROCEEDINGS BELOW
Plaintiff filed a lawsuit in November 1999 pursuant
to the CRA against Ford Motor Company and Daniel
Bennett, a supervisor at Ford’s Wixom assembly plant
1
MCL 37.2101 et seq.
2
MCL 37.2202(1)(a) provides:
An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise
discriminate against an individual with respect to employment,
compensation, or a term, condition, or privilege of employment,
because of religion, race, color, national origin, age, sex, height,
weight, or marital status.
3
Jager had concluded that “a supervisor engaging in activity prohib-
ited by the CRA may not be held individually liable for violating a
plaintiff’s civil rights.” Id.
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where she worked. As relevant here, her claim was that
she had been sexually harassed as a result of a hostile
work environment.
4
The CRA allows such a lawsuit
against an employer.
5
Plaintiff’s lawsuit named Bennett as an individual
defendant consistently with the then-controlling case of
Jenkins v Southeastern Michigan Chapter, American
Red Cross, 141 Mich App 785; 369 NW2d 223 (1985),
6
which held that individual supervisors could be liable
under the CRA.
7
4
As set forth in Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d
155 (1993), the five elements necessary to establish a prima facie case of
sexual harassment based on a hostile work environment are:
(1) the employee belonged to a protected group;
(2) the employee was subjected to communication or conduct on
the basis of sex;
(3) the employee was subjected to unwelcome sexual conduct or
communication;
(4) the unwelcome sexual conduct or communication was
intended to or in fact did substantially interfere with the employ-
ee’s employment or created an intimidating, hostile, or offensive
work environment; and
(5) respondeat superior. [Emphasis added.]
See also Chambers v Trettco, Inc, 463 Mich 297, 311; 614 NW2d 910
(2000). Respondeat superior liability exists when an employer has ad-
equate notice of the harassment and fails to take appropriate corrective
action. Id. at 312.
5
M Civ JI 105.10, Employment Discrimination—Sexual Harassment.
6
Jager overruled Jenkins while plaintiff’s appeal was pending in the
Court of Appeals.
7
The CRA states that an “employer” includes an “agent” of the
employer.
MCL 37.2201(a) provides: “ ‘Employer’ means a person who has 1 or
more employees, and includes an agent of that person.” (Emphasis
added.)
412 472 M
ICH
408 [June
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Regarding the specifics in her complaint, plaintiff
alleged that, while she was on the job in the summer of
1995, Bennett exposed himself to her while masturbat-
ing and requested she perform oral sex. Further, she
claimed that after that he repeatedly continued to
harass her by grabbing, rubbing, and touching his
groin and licking his lips and making sexually related
comments.
Before trial, defendants filed a joint motion in
limine to exclude from evidence an unrelated, prior
criminal misdemeanor conviction of Bennett for inde-
cent exposure. Defendants pointed out that the
incident did not occur on Ford property and involved
non-Ford employees. Plaintiff, however, argued
that the indecent exposure conviction was evidence of
a scheme or plan Bennett had of exposing himself
to women and that it provided notice to Ford
that Bennett engaged in inappropriate sexual
acts. The trial court ruled that the indecent exposure
conviction was inadmissible with regard to Bennett
under MRE 404(b)(1)
8
because it was not offered
for any purpose other than to show that he had
a propensity to expose himself. The court also held it
was inadmissible with regard to Ford pursuant to
MCL 37.2103(g), in turn, provides: “ ‘Person’ means an individual,
agent,association,[or]corporation....”
8
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, prepara-
tion, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material,
whether such other crimes, wrongs, or acts are contemporaneous
with, or prior or subsequent to the conduct at issue in the case.
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MRE 403
9
because any probative value would be sub-
stantially outweighed by the danger of unfair prejudice.
The case was tried before a jury for three weeks.
Plaintiff testified consistently with the allegations in
her complaint against Bennett. While it was uncon-
tested that she had not filed a formal written com-
plaint of sexual harassment pursuant to Ford’s anti-
harassment policy, plaintiff attempted to establish
that Ford was otherwise aware, or on notice, of the
sexual harassment for several reasons. She claimed
that she told two first-line supervisors (friends of hers
who were under Bennett in the chain of command)
that Bennett had exposed himself to her, but admitted
that she had pledged them to secrecy. She also intro-
duced two letters her psychologist had written to the
Wixom plant physician, one indicating that in his view
plaintiff was descending into mental illness “[d]ue to
the harassment she perceived from Mr. Bennett” and a
second stating that plaintiff continued “to feel uncom-
fortable with Dan Bennett.” These letters were offered
with a third letter from the same psychologist to the
Wixom plant manager regarding complaints against a
different coworker in which it was said “there has
been harassment going on for the past year and a half
at her Wixom plant job.” Also introduced was testi-
mony from an employee to a Ford Labor Relations
Department representative to the effect that the em-
ployee would remain on medical leave until someone
did something about the situation between plaintiff
9
MRE 403 provides:
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair preju-
dice, confusion of the issues, or misleading the jury, or by consid-
erations of undue delay, waste of time, or needless presentation of
cumulative evidence.
414 472 M
ICH
408 [June
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and Bennett. Finally, reference was made to a letter
from plaintiff’s attorney (her son-in-law) to the Ford
Labor Relations Department in which he asserted he
might take legal action “to insure that our client
[plaintiff] is not subjected to working in a hostile
environment.”
At the close of plaintiff’s proofs, defendants filed a
joint motion for a directed verdict, arguing that plaintiff
had not presented a prima facie case against them.
10
Ford emphasized that plaintiff had not established that
it had notice of the alleged sexual harassment by
Bennett and, thus, it could not be held liable for any
improper acts by him.
The trial court took the joint motion under advise-
ment, with defendants continuing to present their cases
to the jury. Bennett testified that he had not sexually
harassed the plaintiff and that her claims were false.
Ford presented evidence showing that the only time
plaintiff had ever filed a sexual harassment complaint
was in 1991, involving a UAW committeeman, and that
none of the several grievances and complaints plaintiff
filed against Bennett had mentioned sexual harass-
ment. Rather, with regard to Bennett, her complaints
concerned having her shift changed from days to after-
noons and disputes regarding overtime. She also filed a
complaint alleging that a female coworker had physi-
cally threatened her.
Upon the close of defendants’ proofs, the trial court
granted directed verdicts to the defendants. The trial
court held that plaintiff had failed to establish a prima
facie case of sexual harassment with regard to either
defendant and, in particular, found that Ford could not
10
MCR 2.515 provides: “A party may move for a directed verdict at the
close of the evidence offered by an opponent.”
2005] E
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be liable because it had no notice of Bennett’s alleged
harassment.
Plaintiff, asserting that she had established a prima
facie case against Bennett and Ford, appealed to the
Court of Appeals. That Court, however, affirmed the
orders of the trial court in a published opinion.
11
In
ruling for Bennett, the majority in Elezovic relied on the
then-recent holding in Jager, supra at 485, that “a
supervisor engaging in activity prohibited by the CRA
may not be held individually liable for violating a
plaintiff’s civil rights.” The Jager Court had reached its
conclusion by relying largely on federal court holdings
that under Title VII of the federal civil rights act, the
federal analogue to our CRA, there is no individual
liability.
12
While it was obligatory that the majority in
Elezovic follow Jager pursuant to MCR 7.215(J)(1), the
majority indicated at the same time that, but for that
court rule, it would have reached the opposite result.
13
It was the majority’s view that Jager was wrongly
decided simply because it was not consistent with the
actual language of our CRA, which it concluded made
11
Elezovic v Ford Motor Co, 259 Mich App 187; 673 NW2d 776 (2003).
12
The Jager panel noted that its conclusion that individuals could not
be sued under our CRA was consistent with federal court rulings such as
Wathen v Gen Electric Co, 115 F3d 400 (CA 6, 1997), in which the Sixth
Circuit Court of Appeals determined, consistently with numerous other
federal courts of appeals, there was no individual liability under Title VII
of the federal civil rights act.
13
Under MCR 7.215(J)(1) a panel of the Court of Appeals must follow
the rule of law established by a prior published decision of the Court of
Appeals issued on or after November 1, 1990, that has not been reversed or
modified by the Supreme Court, or by a special panel of the Court of
Appeals.
The judges of the Court of Appeals were polled pursuant to MCR
7.215(J), but a conflict resolution panel was not convened because a
majority of the judges opposed convening such a panel. 259 Mich App 801
(2003).
416 472 M
ICH
408 [June
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agents individually liable. Moreover, it believed Jager
was inconsistent with Chambers v Trettco, Inc, 463
Mich 297; 614 NW2d 910 (2000), which it read as
recognizing that an individual may be held liable for
sexual harassment under the CRA.
14
With regard to the directed verdict for Ford, the
Court of Appeals rejected plaintiff’s claim that her
evidence regarding notice had been sufficient to enable
her to reach the jury. The Court held that plaintiff’s
report of Bennett’s conduct to her supervisors did not
constitute actual notice to Ford because of her request
at the same time that this information not be conveyed
to their supervisor or other appropriate persons. El-
ezovic v Ford Motor Co, 259 Mich App 187, 194; 673
NW2d 776 (2003). As for the letters that had been sent
to Ford, the Court of Appeals concluded that these also
did not provide notice because, importantly, none of
them referred to sexual conduct. The Court held that
this fact, when viewed in the context that plaintiff’s
previous harassment complaints had not been sexual in
nature, but were explicitly nonsexual concerning Ben-
nett and others (with the exception of the 1991 com-
plaint against a UAW committeeman that plaintiff did
not rely on as part of her case), meant Ford would not
reasonably have been put on notice. Id. at 195. Finally,
the Court also affirmed the trial court’s decision to
exclude evidence regarding Bennett’s indecent expo-
sure conviction. It was the Court’s conclusion that
plaintiff failed to establish that the evidence was offered
for a proper purpose because Bennett’s act of indecent
14
In making this point, the majority noted that Chambers held that
certain language in the CRA “ ‘allows this Court to determine whether
the sexual harasser’s employer, in addition to the sexual harasser himself,
is to be held responsible for the misconduct.’ Chambers, supra at 320
(emphasis in original).” Elezovic, supra at 201.
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exposure outside the workplace was not sufficiently
similar to sexually harassing an employee in the work-
place to establish a common plan, scheme, or system.
Id. at 206. The Court further concluded that the trial
court had not abused its discretion, concerning defen-
dant Ford, in holding that the probative value of this
evidence would have been substantially outweighed by
the danger of unfair prejudice.
15
Id. at 207-208.
Plaintiff applied for leave to appeal in this Court, and
we granted leave to appeal and directed the parties to
include among the issues briefed whether a supervisor
engaging in activity prohibited by the Michigan Civil
Rights Act, MCL 37.2101 et seq., may be held individu-
ally liable for violating a plaintiff’s civil rights. 470 Mich
892 (2004).
II. STANDARDS OF REVIEW
We review de novo the question whether our CRA
authorizes a cause of action against an individual agent
for workplace sexual harassment because it is a ques-
tion of law. Morales v Auto-Owners Ins Co (After Re-
mand), 469 Mich 487, 490; 672 NW2d 849 (2003). In
reviewing the statute, if its language is clear, we con-
clude that the Legislature must have intended the
meaning expressed, and the statute is enforced as
written. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27;
528 NW2d 681 (1995).
We also review de novo a trial court’s ruling regard-
ing a motion for a directed verdict, viewing the evidence
and all legitimate inferences in the light most favorable
to the nonmoving party. Sniecinski v Blue Cross & Blue
Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186
15
That is, the marginally probative evidence could be given undue or
preemptive weight by the jury.
418 472 M
ICH
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(2003); Meagher v Wayne State Univ, 222 Mich App 700,
707-708; 565 NW2d 401 (1997).
Finally, the decision whether to admit or exclude
evidence is reviewed for an abuse of discretion. People v
Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
III. INDIVIDUAL AGENT LIABILITY UNDER THE CRA
The CRA prohibits an employer from discriminating
on account of sex, which includes sexual harassment.
MCL 37.2202(1)(a); MCL 37.2103(i) (“Discrimination
because of sex includes sexual harassment.”). As previ-
ously set forth, the statute expressly defines an “em-
ployer” as a “person,” which is defined under MCL
37.2103(g) to include a corporation, and also states that
an “employer” includes an “agent of that person.” MCL
37.2201(a).
16
This statutory language uncontroversially means
that Ford Motor Company is an “employer” under the
CRA. What is contested is whether an agent of the
corporation is also subject to individual liability.
Bennett and Ford have argued that the statutory
definition of “employer,” which includes an “agent of
that person,” should not be read as providing individual
liability because (1) inclusion of the term “agent” in the
statutory definition of “employer” operates solely to
confer vicarious liability on the employer, (2) federal
courts of appeals have all held that Title VII—the analo-
gous federal sexual discrimination statute with its simi-
lar definition of “employer”—does not allow individual
liability, and (3) the amendment history of our CRA
suggests a different intention on the part of the Legisla-
ture.
16
These legislatively provided definitions are binding on this Court. Tryc
v Michigan Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996).
2005] E
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Regarding the first of these arguments, that this
statute should not be read to expand the class of
potential defendants to include agents, defendants as-
sert that Chambers, supra at 310, supports this narrow-
ing conclusion because it held that the inclusion of an
“agent” within the definition of an “employer” in MCL
37.2201(a) served to confer vicarious liability on the
agent’s employer. We disagree with this analysis. While
Chambers held that this language establishes vicarious
liability, our discussion did not limit it to that function.
The reason is that, when a statute says “employer”
means “a person who has 1 or more employees, and
includes an agent of that person,” it must, if the words
are going to be read sensibly, mean that the Legislature
intended to make the agent tantamount to the em-
ployer so that the agent unmistakably is also subject to
suit along with the employer. (Emphasis added.) In-
deed, when we said in Chambers, supra at 320, that
categorizing a given pattern of misconduct allows the
Court “to determine whether the sexual harasser’s
employer, in addition to the sexual harasser himself,is
to be held responsible for the misconduct,” we believe
we said as much. (Emphasis in original.) Accordingly,
we reject the argument that including “agent” within
the definition of “employer” serves only to provide
vicarious liability for the agent’s employer and we
conclude that it also serves to create individual liability
for an employer’s agent.
17
17
Justice W
EAVER
states in her dissent that we offer “no clear reason for
rejecting the conclusion that the phrase ‘agent of the employer’ denotes
respondeat superior liability.” Post at 438. But, as our discussion above
makes clear, we do not reject this conclusion. Rather, we hold that the
Legislature’s use of the words “agent of the employer” denotes respon-
deat superior liability and also that individual liability may exist under
the statute.
Justice C
AVANAGH
argues in his dissent that
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With respect to defendants’ second argument, which
is effectively that we should piggyback on the rationale
federal courts have used with Title VII,
18
defendants
refer us to numerous federal decisions that, on the basis
of the “policy” and “object” of Title VII rather than
what the statute actually says, have read Title VII to
preclude individual liability.
19
This Court has been clear
that the policy behind a statute cannot prevail over
the statute means that an employer is a person who has one or
more employees and this includes an agent of the employer. This
means that an employer still falls within the purview of the statute
even if its “employees” are mere agents, such as family members
who are helping with the business. To determine employer liabil-
ity, agents are considered employees. [Post at 432.]
We believe Justice C
AVANAGH
is misreading the statute. The statute
says an agent can be an employer—not an employee. The reference in the
statute to “agent” modifies “employer.” It does not expand the scope of
“employee.” This is evident from the parallel verbs:
“Employer” means a person who has 1 or more employees, and
includes an agent of that person. [MCL 37.2201(a) (emphasis
added).]
18
Title VII defines “employer” to mean “a person engaged in an
industry affecting commerce who has fifteen or more employees...and
any agent of such a person....” 42 USC 2000e(b). (Emphasis added.)
Thus, while the definition of “employer” under Title VII is similar to that
of our CRA, as pointed out in Chambers, unlike the federal law, the CRA
expressly establishes a cause of action for sexual harassment and
employer liability based on traditional agency principles. Chambers,
supra at 311, 315-316, 326.
19
For example, in Wathen, supra at 405, the Sixth Circuit Court of
Appeals determined there was no individual liability under Title VII of
the federal civil rights act, even though a reading of the language
contained in Title VII would lead to the conclusion that an individual
could, in fact, be held liable for acts of discrimination. The Sixth Circuit,
however, citing the “object” and “policy” behind Title VII instead of its
language, ultimately rendered a decision in conflict with that language.
Similarly, in Tomka v Seiler Corp, 66 F3d 1295, 1314 (CA 2, 1995), the
Second Circuit ruled individual liability was not available under Title VII
even though what it grudgingly referred to as “a narrow, literal reading
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what the text actually says. The text must prevail. In
fact, in Chambers, when an invitation to follow “policy”
over “text” was presented with regard to the CRA, we
said:
We are many times guided in our interpretation of the
Michigan Civil Rights Act by federal court interpretations
of its counterpart federal statute. However, we have gen-
erally been careful to make it clear that we are not
compelled to follow those federal interpretations. Instead,
our primary obligation when interpreting Michigan law is
always “to ascertain and give effect to the intent of the
Legislature,...‘asgathered from the act itself.’”...[W]e
cannot defer to federal interpretations if doing so would
nullify a portion of the Legislature’s enactment. [Cham-
bers, supra at 313-314 (citations omitted).]
As in Chambers, we again decline to follow the
tendered “policy” over “text” federal court interpreta-
tions of Title VII for the same reason: it would be
contrary to the very wording of our CRA. Because MCL
37.2201(a) provides that an “employer” includes an
“agent” of the employer, an agent can be held individu-
ally liable under the CRA.
20
of the agent clause” in Title VII “does imply that an employer’s agent is
a statutory employer for purposes of [Title VII] liability....” As in
Wathen, the Second Circuit went on to read Title VII not on the basis of
its language, but on the basis of what it viewed as the real “intentions of
the legislators.”
20
Justice W
EAVER
states in her dissent that our holding may be a
“shallow victory” for plaintiffs because sexual harassers may not be
“agents” if they were acting outside the scope of their authority. We
neither agree nor disagree with any aspect or premise of this proposition,
and do not address it here, because this issue has not been raised or
argued by the parties. Further, whether or not some later holding by this
Court may prove to be a “shallow victory” is in sharp contrast with the
“certain defeat” that plaintiffs in sexual harassment cases against
individuals would suffer under Justice W
EAVER
’s “common sense” inter-
pretation of the statute. Post at 439. Justice W
EAVER
further claims that
under our opinion a supervisor, but not a coemployee, may face individual
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Moreover, several federal courts in Michigan have
anticipated our holding that, under our CRA, individual
agent liability exists even if it did not exist under Title
VII. This can be seen in Hall v State Farm Ins Co,18F
Supp 2d 751, 764 (ED Mich, 1998), in which the United
States District Court for the Eastern District of Michi-
gan explained:
ELCRA [Elliot-Larsen Civil Rights Act] covers any
employer “who has 1 or more employees.” Mich. Comp.
Laws § 37.2201(a). Thus, ELCRA undeniably envisions
placing liability on individuals, such as two-member busi-
ness entities where one person is the principal and the
other person serves as the employee. Moreover, ELCRA’s
remedy provision authorizes “person[s] alleging a violation
of this act [to] bring a civil action for appropriate injunctive
relief or damages, or both,” with “damages” being awarded
for an “injury or loss caused by each violation of this act,
including reasonable attorney’s fees.” Mich. Comp. Laws
§§ 37.2801(1), (3). These ELCRA remedies further distin-
guish it from Title VII because damages can be obtained
from individuals as well as employers.
Similarly, another judge of the same federal district
court also questioned the Jager Court’s conclusion that
individual liability did not exist under Michigan’s CRA,
stating that
the language “includes an agent of that employer,” could,
under principles of strict statutory construction, well be
read as extending liability to individuals. Otherwise, this
phrase is merely surplusage, as it adds nothing to the
definitional scope of “employer,” which itself defines the
term “employer” as a person. [United States v Wayne Co
liability. This also is a proposition that has no basis in our opinion. All we
have said is, if the individual was an agent of the employer, individual
liability may exist. Whether a distinction can be drawn under the statute
between supervisory and nonsupervisory employees has again not been
raised or argued in this case.
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Comm College Dist, 242 F Supp 2d 497, 507 n 11 (ED Mich,
2003).]
[21]
We conclude, then, that while federal courts have the
power to construe Title VII as they will, that does not
compel us to follow them, especially if the language
being construed is at loggerheads with the purported
policy.
With respect to the third argument regarding the
amendment history of our CRA, defendants assert that
it precludes a finding of individual liability. They ad-
vance this by positing that when the CRA was first
enacted in 1976, it defined “employer” to mean “a
person who has 4 or more employees, and includes an
agent of that person.” 1976 PA 453. This meant, as
defendants read it, that an agent could not be individu-
ally liable because the CRA did not apply at all unless
there were at least four employees. With that predicate
of no agent liability under the 1976 act understood, they
then turn to the amended statute, which reflects the
1980 amendment
22
that broadened the protection of the
CRA by sweeping under its aegis companies with only
one employee, but left unchanged the definition of
“employer” to include an “agent,” and argue that even
though the old theory of nonliability of agents cannot be
21
Millner v DTE Energy Co, 285 F Supp 2d 950, 964 n 16 (ED Mich,
2003), also expressed the same qualms as those indicated in Wayne Comm
College.
We also note that, in Poches v Electronic Data Systems Corp, 266 F
Supp 2d 623, 627 (ED Mich, 2003), and Rymal v Baergen, 262 Mich App
274, 296-297; 686 NW2d 241 (2004), the courts distinguished Jager and
allowed retaliation claims against individuals to go forward because the
antiretaliation provision of the CRA, MCL 37.2701, is broader than the
antidiscrimination provision of the CRA, MCL 37.2202.
22
In 1980, the Legislature amended the statute to say that an “em-
ployer” means “a person who has 1 or more employees, and includes an
agent of that person.” 1980 PA 202.
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sustained under the new language, we should read it in
anyway. This we cannot do. The Legislature is held to
what it said. It is not for us to rework the statute. Our
duty is to interpret the statute as written. The binding
nature of this responsibility was reiterated by this
Court recently in L ansing Mayor v Pub Service Comm,
470 Mich 154, 161; 680 NW2d 840 (2004), in which we
said:
Our task, under the Constitution, is the important, but
yet limited, duty to read and interpret what the Legislature
has actually made the law. We have observed many times in
the past that our Legislature is free to make policy choices
that, especially in controversial matters, some observers
will inevitably think unwise. This dispute over the wisdom
of a law, however, cannot give warrant to a court to
overrule the people’s Legislature.
Thus, what this comes down to is that perhaps the
Legislature’s policy choice can be debated, but the
judiciary is not the constitutional venue for such a
debate. The Legislature is the proper venue. It is to that
body that the defendants should make their argument.
Accordingly, we reject the claim that the amendment
history of our CRA precludes a finding of individual
liability where the actual wording of the statute as
currently written unambiguously provides that an
agent may be individually liable.
23
23
Notwithstanding Justice W
EAVER
’s view that the Legislature could
have acted in a more “straightforward manner” in communicating its
intentions, we cannot think of a more clear-cut statement on its part
concerning liability under the statute. While Justice W
EAVER
would prefer
to rely on her own “common sense,” post at 439, in interpreting
“employer” to exclude from coverage individual employees, the majority
would prefer to rely on the statute itself, which states that “[e]m-
ployer... includes an agent of that person.” It is a caricature of the
concept of “judicial restraint” (which concept she invokes on her own
behalf, post at 439) for Justice W
EAVER
to assert that her “common sense”
should be allowed to override the language of the statute.
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Because we find that (1) inclusion of an “agent”
within the definition of the word “employer” is not
limited to establishing vicarious liability for the agent’s
employer, but in fact means agents are considered
employers, (2) federal decisions construing Title VII
should not be followed because it would lead to a result
contrary to the text of our CRA, and (3) the amendment
history of the CRA does not preclude a finding of
individual liability, we conclude that liability under our
CRA applies to an agent who sexually harasses an
employee in the workplace.
IV. PLAINTIFF’S CLAIM AGAINST FORD
It is the case in this area of the law that employer
responsibility for sexual harassment can be established
only if the employer had reasonable notice of the harass-
ment and failed to take appropriate corrective action.
Chambers, supra at 312. In Chambers, we also held that
“notice of sexual harassment is adequate if, by an objec-
tive standard, the totality of the circumstances were such
that a reasonable employer would have been aware of a
substantial probability that sexual harassment was oc-
curring.” Id. at 319. Thus, actual notice to the employer
is not required; rather, the test is whether the employer
knew or should have known of the harassment. Radtke,
supra at 396 n 46.
24
As is apparent, the issue is whether
Ford knew or reasonably should have known, under the
totality of the circumstances, of Bennett’s harassment
of plaintiff.
24
Justice W
EAVER
agrees with the majority that an employer must have
notice before it can be liable. Post at 441. But, she later arguably undercuts
this by citing Meritor Savings Bank, FSB v Vinson, 477 US 57, 72; 106 S
Ct 2399; 91 L Ed 2d 49 (1986) (a case construing Title VII), for the
proposition that the “absence of notice to an employer does not necessarily
insulate that employer from liability.” As for this language from Meritor,
we note that it has been interpreted to mean that “employers are liable for
426 472 M
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Plaintiff claims she made a prima facie showing of
notice when she told two low-level supervisors of Ben-
nett’s exposure, and that Ford was also put on notice by
the letters her psychologist and son-in-law sent to Ford.
We agree with the trial court and the Court of Appeals
that plaintiff’s notice evidence was insufficient to allow
the case to be submitted to the jury.
We first consider whether plaintiff’s telling two low-
level supervisors in confidence that Bennett had exposed
himself to her constituted notice to Ford. We find that it
did not. It must be recalled that, if an employee is
sexually harassed in the workplace, it is that employee’s
choice whether to pursue the matter. In other words, the
victim of harassment “owns the right” whether to notify
the company and start the process of investigation. Until
the employee takes appropriate steps to start the pro-
cess, it is not started. As stated in Perry v Harris
Chernin, Inc, 126 F3d 1010, 1014 (CA 7, 1997):
[T]he law against sexual harassment is not self-
enforcing. A plaintiff has no duty under the law to com-
plain about discriminatory harassment, but the employer
in a case like this one will not be liable if it had no reason
to know about it.
Thus, when an employee requests confidentiality in
discussing workplace harassment, and the request for
confidentiality is honored, such a request is properly
considered a waiver of the right to give notice.
25
failing to remedy or prevent a hostile or offensive work environment of
which management-level employees knew , or in the exercise of reasonable
care should have known.” Equal Employment Opportunity Comm v Haci-
enda Hotel, 881 F2d 1504, 1515-1516 (C A 9, 1989) (emphasis added). Thus,
the language from Meritor should be understood to mean actual notice is
not required. This is consistent with Michigan law because the test is
whether the employer knew or should have known of the harassment.
Radtke, supra at 396 n 46.
25
An employer, of course, remains free to discipline a supervisor for
failing to report a sexual harassment complaint to the proper persons as
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Thus, we conclude that plaintiff’s telling two super-
visors in confidence about one instance of Bennett’s
improper conduct does not constitute notice, notwith-
standing Ford’s policy that required the supervisors to
report the information to human resources personnel.
26
Our holding is consistent with other courts that have
considered this issue. For example in Hooker v Wentz,77
F Supp 2d 753, 757-758 (SD W Va, 1999), the court held
there was no notice to the employer where the plaintiff
confided in her immediate supervisor about sexual
advances but asked that he not report it to others. And,
in Faragher v Boca Raton, 111 F3d 1530 (CA 11, 1997),
rev’d on other grounds 524 US 775 (1998), the court
held that, for vicarious-liability purposes, notice to a
manager does not constitute notice to management
when the complainant asks the manager, as a friend, to
keep the information confidential.
With regard to the letters that were sent to Ford, we
concur with the Court of Appeals that where the
evidence showed that plaintiff had filed numerous
grievances and labor relations complaints over the
years against Bennett and others that were unrelated to
sexual harassment,
27
the mentioning of the word “ha-
rassment” alone or the phrase “hostile environment” in
the letters was insufficient to give Ford notice that
sexual harassment was being claimed. This is especially
true where plaintiff was aware, and the employer was
aware that she was aware, of the terminology at issue
required by the employer’s policy. But, that is a different issue, and it
does not mean that a confidential report of sexual harassment to a
supervisor constitutes notice to the employer.
26
Accord Hooker v Wentz, 77 F Supp 2d 753, 757-758 (SD W Va, 1999)
(where the plaintiff confided in her immediate supervisor about sexual
advances, but asked that he not report it to others, there was no notice to
the employer).
27
There were several disputes regarding plaintiff’s shift assignment.
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because she had previously filed a written complaint
asserting that her UAW committeeman had sexually
harassed her.
28
Accordingly, even viewing the evidence
in a light most favorable to plaintiff, we conclude that
Ford was entitled to a directed verdict because, under
the totality of the circumstances, a reasonable employer
would not have been on notice of a substantial prob-
ability that sexual harassment was occurring.
29
Plaintiff argues in the alternative that, even if her
evidence of notice to Ford was insufficient, it would
have been sufficient if the trial court had not errone-
ously granted the motion in limine that precluded
introduction of evidence of Ford’s knowledge of Ben-
nett’s indecent exposure conviction. This conviction
had been expunged before the trial in this matter. We
conclude that the trial court’s ruling was not an abuse
of discretion.
First, we note that MCL 780.623(5) provides:
Except as provided in subsection (2) [pertaining to
certain law enforcement purposes], a person, other than
the applicant, who knows or should have known that a
conviction was set aside under this section and who di-
vulges, uses, or publishes information concerning a convic-
tion set aside under this section is guilty of a misdemeanor
punishable by imprisonment for not more than 90 days or
a fine of not more than $500.00, or both.
Pursuant to this statute, evidence of Bennett’s ex-
punged misdemeanor conviction was not admissible.
28
Justice W
EAVER
’s dissent advocates what might be characterized as a
“near miss” theory of notice, i.e., if a male employee had problems at
work with female employees or was accused of harassing someone in a
nonsexual way, this somehow constitutes notice that such an employee
was a sexual harasser. The perils of such an approach are apparent and
we decline to adopt it.
29
A directed verdict is proper where no prima facie showing of liability
is made. Locke v P achtman, 446 Mich 216, 222-223; 521 NW2d 786 (1994).
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While this statute clearly made evidence of the convic-
tion inadmissible, that leaves the question whether
the facts that led to the conviction, which occurred
while Bennett was not at work and involved individu-
als with no connection to Ford, were admissible to
establish that Ford knew or should have known that
Bennett was sexually harassing plaintiff. The trial
court ruled that the evidence was inadmissible because
the prejudice to Ford would substantially outweigh
any probative value the evidence might have. The trial
court did not abuse its discretion.
30
Indeed, we question
how Ford’s knowledge of Bennett’s improper off-site
behavior involving nonemployees could constitute notice
to Ford that plaintiff’s work environment was sexually
hostile. Context is important; improper behavior of a
given type is not an inevitable predictor of other types of
improper behavior especially where, as here, they occur
at entirely different locales and under different circum-
stances. T omson v Stephan, 705 F Supp 530, 536 (D Kan,
1989).
And, as we stated in Chambers, supra at 315-316, an
employer can be vicariously liable for a hostile work
environment only if it “failed to take prompt and
adequate remedial action upon reasonable notice of
the creation of a hostile [work] environment....”
(Emphasis added.) Here, the trial court and the Court
of Appeals properly held that plaintiff’s notice evi-
dence was insufficient to allow the case to be submit-
ted to the jury.
30
See, e.g., Tomson v Stephan, 705 F Supp 530, 536 (D Kan, 1989)
(excluding evidence that the defendant made sexual advances outside the
employment setting because the advances were not made toward an
employee); Longmire v Alabama State Univ, 151 FRD 414, 417 (MD Ala,
1992) (the defendant’s “activities outside the work place are irrelevant”
to determining the existence of a hostile work environment).
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V. CONCLUSION
Because employers can be held liable under the CRA,
and because agents are considered employers, agents
can be held liable, as individuals, under the CRA. Thus,
we accept the invitation of the Court of Appeals and
reverse that part of the Court of Appeals opinion that
relied on Jager in holding that agents may not be held
individually liable under our CRA.
We affirm the judgment of the Court of Appeals that
Ford was entitled to a directed verdict and that the trial
court’s pretrial ruling on the motion in limine was not
an abuse of discretion.
Reversed in part, affirmed in part, and remanded to
the circuit court for further proceedings regarding
Bennett and consistent with this opinion.
C
ORRIGAN
,Y
OUNG,
and M
ARKMAN,
JJ., concurred with
T
AYLOR,
C.J.
C
AVANAGH,
J. (concurring in part and dissenting in
part). I believe that the Civil Rights Act (CRA), MCL
37.2101 et seq., does not provide for individual liability
against an agent of an employer; therefore, I respect-
fully dissent from the majority on this issue. I also
dissent from the majority on the issue of notice. As
discussed by Justice W
EAVER
in her partial dissent, I
likewise believe that plaintiff provided evidence of
notice to defendant Ford Motor Company (Ford) that
was sufficient to allow the issue to be decided by a jury.
Finally, I concur with the result reached by the major-
ity regarding the trial court’s decision to grant defen-
dants’ motion in limine to preclude evidence of Ford’s
knowledge of the alleged sexual harasser’s expunged
indecent exposure conviction.
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I. INDIVIDUAL LIABILITY UNDER THE CIVIL RIGHTS ACT
This issue involves the proper interpretation of the
CRA. The primary goal of statutory interpretation is to
give effect to the intent of the Legislature. In re MCI
Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164
(1999). The first step is to review the language of the
statute. If the statutory language is unambiguous, the
Legislature is presumed to have intended the meaning
expressed in the statute and judicial construction is not
permissible.
MCL 37.2201(a) states the following: “ ‘Employer’
means a person who has 1 or more employees, and
includes an agent of that person.” According to the
statute, “that person” refers to the employer.
1
Simply,
the statute means that an employer is a person who has
one or more employees and this includes an agent of the
employer. This means that an employer still falls within
the purview of the statute even if its “employees” are
mere agents, such as family members who are helping
with the business. To determine employer liability,
agents are considered employees. Thus, an employer
cannot escape liability because the alleged sexual ha-
rasser is not officially an employee, but is instead, for
example, a family member who is “helping out” with
the business. If the sexual harasser is an employee or
agent of the employer, the employer is liable if it had
notice and failed to act reasonably. See Radtke v Everett,
442 Mich 368, 396; 501 NW2d 155 (1993).
1
MCL 37.2103(g) states the following:
“Person” means an individual, agent, association, corporation,
joint apprenticeship committee, joint stock company, labor organi-
zation, legal representative, mutual company, partnership, re-
ceiver, trust, trustee in bankruptcy, unincorporated organization,
the state or a political subdivision of the state or an agency of the
state, or any other legal or commercial entity.
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According to the unambiguous language selected by
the Legislature, the plain text of the statute provides for
employer liability for the acts of its employees and
agents, but it does not provide for individual liability.
Because policy considerations cannot be taken into
account in this case, I offer no position on whether it
would be best for plaintiffs in sexual harassment cases
to also hold an alleged sexual harasser individually
liable under the CRA. That decision is solely for the
Legislature to determine.
II. NOTICE TO FORD OF SEXUAL HARASSMENT
I concur with part II of Justice W
EAVER
’s partial
dissent. I believe Justice W
EAVER
outlines sufficient
evidence to support plaintiff’s claim that Ford had
notice of plaintiff’s allegations of sexual harassment.
While plaintiff requested confidentiality from two su-
pervisors whom she told about the alleged sexual ha-
rassment, it is critical to note that the supervisor of
labor relations had notice of plaintiff’s allegations of
sexual harassment from one of plaintiff’s coworkers
and from the alleged sexual harasser himself. In addi-
tion to the other facts presented by plaintiff, because
the supervisor of labor relations had notice of plaintiff’s
allegations of sexual harassment, I believe that this
issue should be determined by a jury.
III. EXCLUDING EVIDENCE OF THE ALLEGED SEXUAL
HARASSER’S EXPUNGED CONVICTION FOR INDECENT EXPOSURE
I concur with the result reached by the majority that
the trial court did not abuse its discretion when it
granted defendants’ motion in limine to preclude evi-
dence of Ford’s knowledge of the alleged sexual harass-
er’s expunged indecent exposure conviction. I also con-
cur with the majority’s conclusion that, in this case, the
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facts that led to the conviction were not sufficient to put
Ford on notice of sexual harassment. However, I note
that there certainly may be instances where the facts of
a conviction, even one that occurs off-site and involves
nonemployees, may lead to notice because of the context
in which the incident occurred and the totality of the
circumstances.
IV. CONCLUSION
Because the CRA does not provide for individual
liability against an agent of an employer, I respectfully
dissent from the majority on this issue. I also dissent
from the majority on the issue of notice and, accordingly,
I concur with Justice W
EAVER
because I believe that
plaintiff provided evidence of notice to Ford that was
sufficient to allow the issue to be decided by a jury.
Finally, I concur with the result reached by the majority
regarding the trial court’s decision to grant defendants’
motion in limine to preclude evidence of Ford’s knowl-
edge of the alleged sexual harasser’s expunged indecent
exposure conviction.
K
ELLY
, J., concurred with C
AVANAGH
,J.
W
EAVER,
J. (concurring in part and dissenting in
part). I concur in the majority’s conclusions that the
trial court’s ruling on the defendants’ motion in limine
was not an abuse of discretion and that its decision to
exclude the evidence of defendant Daniel Bennett’s
expunged conviction should therefore be affirmed. But I
write separately because I respectfully dissent both
from the majority’s conclusion that Michigan’s Civil
Rights Act (CRA), MCL 37.2101 et seq., provides for
individual liability against an agent of an employer and
from its conclusion that defendant Ford Motor Com-
434 472 M
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,J.
pany was entitled to a directed verdict because plaintiff
failed to establish that Ford had notice of the sexual
harassment.
Instead, I would conclude that the Legislature in-
cluded the word “agent” in the definition of “em-
ployer” in MCL 37.2201(a) to denote respondeat supe-
rior liability, not individual liability. Accordingly, I
would not overrule Jager v Nationwide Truck Brokers,
Inc, 252 Mich App 464; 652 NW2d 503 (2002), and I
would affirm the Court of Appeals conclusion in this
case that there is no individual liability under the
statute. Further, I would conclude that plaintiff of-
fered sufficient evidence during trial to allow the
question of notice to go to the jury. Therefore, I would
reverse the Court of Appeals decision that the trial
court properly granted a directed verdict in Ford’s favor
because plaintiff failed to show that she provided notice
of her sexual harassment claim.
I
The CRA provides, in pertinent part, that “[a]n
employer shall not do any of the following”:
(a) Fail or refuse to hire or recruit, discharge, or
otherwise discriminate against an individual with respect
to employment, compensation, or a term, condition, or
privilege of employment, because of religion, race, color,
national origin, age, sex, height, weight, or marital status.
(b) Limit, segregate, or classify an employee or applicant
for employment in a way that deprives or tends to deprive
the employee or applicant of an employment opportunity,
or otherwise adversely affects the status of an employee or
applicant because of religion, race, color, national origin,
age, sex, height, weight, or marital status.
(c) Segregate, classify, or otherwise discriminate against
a person on the basis of sex with respect to a term,
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condition, or privilege of employment, including, but not
limited to, a benefit plan or system. [MCL 37.2202.]
The CRA defines discrimination because of sex to
include sexual harassment. MCL 37.2103(i). It defines
“sexual harassment” to mean “unwelcome sexual ad-
vances, requests for sexual favors, and other verbal or
physical conduct or communication of a sexual nature
under the following conditions”:
(i) Submission to the conduct or communication is made
a term or condition either explicitly or implicitly to obtain
employment, public accommodations or public services,
education, or housing.
(ii) Submission to or rejection of the conduct or commu-
nication by an individual is used as a factor in decisions
affecting the individual’s employment, public accommoda-
tions or public services, education, or housing.
(iii) The conduct or communication has the purpose or
effect of substantially interfering with an individual’s
employment, public accommodations or public services,
education, or housing, or creating an intimidating, hos-
tile, or offensive employment, public accommodations,
public services, educational, or housing environment.
[MCL 37.2103(i).]
The term “employer” is defined as “a person who has 1
or more employees, and includes an agent of that
person.” MCL 37.2201(a).
The majority concludes that because the definition
of the word “employer” includes an “agent” of the
employer, “an agent can be held individually liable
under the CRA.” Ante at 422. I disagree and, instead,
agree with the conclusion reached by the Court of
Appeals in Jager, supra at 484, that by defining
“employer” to include an “agent” of the employer, the
Legislature “meant merely to denote respondeat supe-
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EAVER
,J.
rior liability
[1]
rather than individual liability.”
2
Thus, I
would not overrule the Jager decision.
Had the Legislature intended the CRA to impose
liability on the individuals who commit harassment, it
would likely have done so in a more straightforward
manner than by defining “employer” to include an
“agent” of the employer.
3
Relying on the word “agent”
to impose individual liability would, under the majori-
ty’s interpretation, only allow individual liability
against supervisors and others in similar positions who,
under agency law, might be considered “agents” of the
employer.
4
But it would not permit coemployees who
harass a victim to be held individually liable. If the
Legislature truly intended to impose individual liability
under the CRA on those who commit sexual harass-
ment, one would expect that it would choose language
that would allow all individuals who commit the harass-
ment to be held liable, regardless of their status as a
supervisor or coemployee.
Further, the “round-aboutness” of the majority’s
1
Respondeat superior “means that a master is liable in certain cases
for the wrongful acts of his servant, and a principal for those of his
agent.” Black’s Law Dictionary (6th ed). It is an element of a prima facie
case of sexual harassment based on hostile work environment. Radtke v
Everett, 442 Mich 368, 383; 501 NW2d 155 (1993). For all five elements,
see pp 440-441 of this opinion.
2
See also Miller v Maxwell’s Int’l Inc, 991 F2d 583 (CA 9, 1993), and
Wathen v Gen Electric Co, 115 F3d 400 (CA 6, 1997), which interpret the
phrase as used in Title VII.
3
For example, the Legislature could have said in MCL 37.2202 that an
“employer or employee of the employer shall not . . .,” or it could have
included a separate section in the statute addressing individual liability.
4
An agent has been defined as a “person authorized by another
(principal) to act for or in place of him; one intrusted with another’s
business” or “[o]ne who deals not only with things, as does a servant, but
with persons, using his own discretion as to means, and frequently
establishing contractual relations between his principal and third per-
sons.” Black’s Law Dictionary (6th ed).
2005] E
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OTOR
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approach becomes more evident when one realizes that
recognizing individual liability under the CRA may be a
very shallow “victory” for plaintiff and may actually
result in very few individuals being held liable. In this
case, the majority assumes that Mr. Bennett was an
“agent” of Ford without analyzing the issue. But if the
issue whether the perpetrator of the harassment was an
agent of the employer were analyzed under strict
agency principles, in many cases, it may be concluded
that the perpetrator of the harassment cannot be held
individually liable as an agent because the perpetrator
did not have actual or apparent authority from the
employer to harass employees of the employer; there-
fore he cannot be considered an “agent” of the employer
because he was acting outside the scope of his author-
ity.
5
It does not seem reasonable that the Legislature
would create individual liability using language that
might, in actuality, foreclose most individuals from
being held individually liable under the CRA.
The majority offers no clear reason for rejecting the
conclusion that the phrase “agent of the employer”
denotes respondeat superior liability. R ather, it simply
concludes that the phrase “includes an agent of that
person” must mean “if the words are going to be read
sensibly” that agents are subject to individual liability
5
See, e.g., AMCO Builders & Developers, Inc v Team Ace Joint Venture,
469 Mich 90, 103-104; 666 NW2d 623 (2003) (Y
OUNG
, J., concurring)
(stating that agency principles are applicable to the attorney-client
relationship and that a client may be bound by the acts of his agent when
the agent is acting within the scope of his authority); James v Alberts, 464
Mich 12, 15; 626 NW2d 158 (2001) (noting that “a principal is bound by
an agent’s actions within the agent’s actual or apparent authority”).
In light of this, I now question the correctness of our decision in
Chambers v Trettco, Inc, 463 Mich 297, 312, 316; 614 NW2d 910 (2000),
which concluded that the CRA is firmly “rooted in traditional agency
principles.” While agency principles may be a helpful guide in applying
the CRA, I question whether they should be rigidly applied in this setting.
438 472 M
ICH
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under the statute. Ante at 420. Thus, the majority’s
reasoning amounts to little more than it must mean
this because we say it does. But, as suggested above,
rather than a “sensible” reading of the statute, this
seems a very round-about way to create individual
liability.
I also disagree with the majority’s suggestion that
concluding that the word “agent” denotes respondeat
superior liability and not individual liability places
“policy” over the “text” of the statute. Ante at 421-422.
Interpreting the text of the statute does not mean that
we read a phrase in the statute in isolation from the act
as a whole or from the purpose of the act. Interpreting
a statute with judicial restraint and common sense may,
in fact, require us to consider the act as a whole and its
purpose while we endeavor to understand what the
Legislature intended by including a particular phrase.
In this case, a purpose of MCL 37.2202 is to prohibit
employers from sexually discriminating against employ-
ees. By imposing liability on employers for sexual harass-
ment, employers will be encouraged to take steps to
prevent sexual harassment from occurring in the work-
place. But often in a large company or corporation, there
is not one “person” that could be considered the “em-
ployer” for purposes of determining whether an “em-
ployer” discriminated against an employee. The em-
ployer is an entity. Thus, it is reasonable for the
Legislature to include in the definition that an “em-
ployer” includes an “agent.” Including this respondeat
superior aspect in the statute ensures that employees
can hold employers liable for harassment while still
balancing the interests of the employer by limiting
employer liability to those who can be considered the
employer’s “agents” and incorporating respondeat supe-
rior principles that require notice to the employer of the
2005] E
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alleged harassment.
6
Considering this “policy” behind
the provision does not place policy over “text.” Rather,
it is another way a judge exercises common sense and
judicial restraint while attempting to reach a reason-
able interpretation of what the Legislature intended the
words to mean.
Therefore, until the Legislature clearly creates indi-
vidual liability under the statute, I would conclude that
plaintiff does not have a cause of action against Mr.
Bennett under the CRA.
7
II
The majority also concludes that the trial court
properly granted a directed verdict in favor of defen-
dant Ford Motor Company because plaintiff failed to
establish that Ford had notice of the harassment. I
disagree and would allow the jury to determine, under
the totality of the circumstances, whether Ford had
notice of the alleged sexual harassment.
The elements required to establish a prima facie case
of sexual harassment based on hostile work environment
are:
(1) the employee belonged to a protected group;
(2) the employee was subjected to communication or
conduct on the basis of sex;
6
As noted in footnote 5 of this opinion, I question whether agency
principles should be rigidly applied to the CRA rather than used as a
general guideline for interpreting the CRA, and I do not mean to suggest
that by using the word “agent” to denote respondeat superior liability,
the Legislature clearly intended to incorporate any and all principles of
agency law into the CRA.
7
I note that although I would conclude that plaintiff does not have a
claim against Mr. Bennett under the CRA, she can pursue any traditional
tort claims that she may have against him.
440 472 M
ICH
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(3) the employee was subjected to unwelcome sexual
conduct or communication;
(4) the unwelcome sexual conduct or communication
was intended to or in fact did substantially interfere with
the employee’s employment or created an intimidating,
hostile, or offensive work environment; and
(5) respondeat superior. [Radtke v Everett, 442 Mich
368, 382-383; 501 NW2d 155 (1993).]
As further explained, under the fifth element, an
employer may avoid liability if, upon notice of the
hostile work environment, it adequately investigated
and took prompt remedial action. Id. at 396 (quoting
Downer v Detroit Receiving Hosp, 191 Mich App 232,
234; 477 NW2d 146 [1991]). An employer must have
notice of the alleged harassment before it can be held
liable, and it does not have a duty to investigate and
take prompt remedial action until it has actual or
constructive notice. Radtke, supra at 396-397 and n
44.
In this case, the trial court granted a directed verdict
in Ford’s favor on plaintiff’s hostile work environment
claim on the basis that there was no notice to Ford.
8
The
trial court stated:
The fact of the matter is that there was no notice to
Ford. This 1998 letter to Mr. Rush, if it went to him, from
the son-in-law, the defendant never made mention of any
sexual harassment. And again, the only people she told
were supervisors. Under normal circumstances I would
agree that that would be enough. But in this case it was
told to them in confidence. She asked them not to repeat it.
And again, she complained that she couldn’t come forward
because of her culture.
The Court of Appeals affirmed the trial court’s ruling.
8
Defendant Ford moved for summary disposition of plaintiff’s hostile
work environment claim only on the issue of notice.
2005] E
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This Court reviews de novo the grant of a motion for
a directed verdict. Cacevic v Simplimatic Engineering
Co (On Remand), 248 Mich App 670, 679; 645 NW2d
287 (2001); see also Craig v Oakwood Hosp, 471 Mich
67, 77; 684 NW2d 296 (2004) (stating that a decision on
a motion for judgment notwithstanding the verdict is
reviewed de novo). In reviewing the trial court’s deci-
sion on the motion, “we examine the evidence and all
reasonable inferences that may be drawn from it in the
light most favorable to the nonmoving party.” Hord v
Environmental Research Institute of Michigan (After
Remand), 463 Mich 399, 410; 617 NW2d 543 (2000). “A
directed verdict is appropriately granted only when no
factual questions exist on which reasonable jurors could
differ.” Cacevic, supra at 679-680; see also Wilkinson v
Lee, 463 Mich 388, 391; 617 NW2d 305 (2000) (stating
that a directed verdict is appropriate only if the evi-
dence, when considered in the light most favorable to
the nonmoving party, fails to establish a claim as a
matter of law). Thus, while not insurmountable, the
threshold for obtaining a directed verdict is high. Hord,
supra at 410.
In my opinion, considering all the evidence and the
reasonable inferences that may be drawn from it, there
are factual questions about which reasonable jurors
could differ regarding whether Ford had notice. There-
fore, the issue of notice is not one that the trial court
can properly decide as a matter of law; instead, it is a
question of fact to be decided by the jury. Consequently,
I would reverse the Court of Appeals affirmance of the
trial court’s grant of a directed verdict in Ford’s favor
and remand this case to the trial court.
Plaintiff testified that in 1995, she told her supervi-
sor, Gary Zuback, that Mr. Bennett had been sexually
harassing her. She also testified that around the same
442 472 M
ICH
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time, she told another supervisor, Butch Vaubel, who
said that he would talk to Mr. Bennett, and that on
different occasions, she told her coworkers Dan Welch,
Dave Perry, and Brad Goatee. She admitted that when
she told Mr. Zuback and Mr. Vaubel, she told them
confidentially. Dan Welch testified that he did not tell
anyone about the first incident of harassment that
plaintiff described to him, but that he later spoke to
Jerome Rush, the supervisor of labor relations, in
October 1998, as well as Ron Mester and perhaps
Richard Greenfield about the situation. Mr. Goatee
testified that he was called down to labor relations in
1996 or 1997 to discuss Mr. Bennett. Mr. Rush testified
that before plaintiff’s lawsuit was filed, Mr. Bennett
told him that plaintiff was trying to set Mr. Bennett up
on a sexual harassment claim and that Ford, therefore,
knew about the lawsuit before it was filed.
Labor relations notes written by Pete Foley to Jer-
ome Rush on August 25, 1998, indicate that plaintiff
was very upset and felt that Mr. Bennett and another
worker, Tammy Holcomb, were looking at her and
laughing. Notes dated August 28, 1998, state the plain-
tiff told Pete Foley that Mr. Bennett came near her
when no one was around and that she was scared. Notes
from Jerome Rush dated September 30, 1998, stated
that plaintiff told him that Mr. Bennett was “harassing”
her.
Letters from plaintiff’s treating psychologist, Fran
Parker, on September 19, 1997, and November 10, 1997,
reference plaintiff’s discomfort with Mr. Bennett, A
letter sent by plaintiff’s son-in-law, Paul Lulgjuraj, who
is an attorney, on April 9, 1998, to Mr. Rush states that
his office was investigating “ongoing acts of discrimina-
tion and retaliation,” references threats made by
Tammy Holcomb, and advises that his office may be
2005] E
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taking actions “to insure that our client is not subjected
to working in a hostile environment.” On December 17,
1998, Dr. Parker wrote to Mr. Rush to explain that Rush
had misunderstood Parker’s phone call on October 6,
1998, to Rush to tell Rush that plaintiff had homicidal
and suicidal thoughts. Parker’s letter stated that
Parker did not tell Mr. Rush that plaintiff intended to
kill Dan Bennett, but that the call was meant to ask Mr.
Rush to intervene on plaintiff’s behalf because the
stress of plaintiff’s job was “breaking her down.”
The majority, in affirming the trial court’s grant of a
directed verdict in Ford’s favor, improperly creates a
rule of automatic waiver. Under the majority’s analysis,
any time an employee requests confidentiality when
reporting sexual harassment, the employee will have
waived notice. Ante at 427-428. While a request of
confidentiality is certainly something that the jury
should consider in determining whether the employer
had notice, such a request should not constitute an
automatic waiver of notice. Rather, all the evidence
presented and the totality of the circumstances must be
considered when determining whether the employer
had actual or constructive notice. See, e.g., Meritor
Savings Bank, FSB v Vinson, 477 US 57, 72; 106 S Ct
2399; 91 L Ed 2d 49 (1986), where in rejecting a rule of
automatic liability for employers for sexual harassment
by supervisors, the United States Supreme Court also
stated that the “absence of notice to an employer does
not necessarily insulate that employer from liability.”
Considering all the evidence presented in this case in
the light most favorable to the plaintiff, there are issues
of fact to be decided by the jury about whether defen-
dant Ford Motor Company had notice that plaintiff was
being sexually harassed. While it is true that plaintiff
may have requested confidentiality from her supervi-
444 472 M
ICH
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sors and that many of the letters and documents
mentioning “harassment” generally do not detail the
specific instances of sexual harassment on which plain-
tiff’s lawsuit is based, evidence was also presented that
she told coworkers of the harassment and that the
coworkers in turn spoke with employees in the labor
relations department. Further, considering all the docu-
mentation in the light most favorable to plaintiff, there
is certainly evidence that plaintiff complained to Ford
that Mr. Bennett was “harassing” her and doing some-
thing to make her job very stressful.
Therefore, I would conclude that the question of
notice is not one that can be decided as a matter of law
by the trial court, but one that must be decided by the
jury after it considers the entire record and weighs the
conflicting evidence.
2005] E
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PEOPLE v TOMBS
Docket No. 125483. Argued December 8, 2004 (Calendar No. 1). Decided
June 1, 2005.
Russell D. Tombs was convicted by a jury in the Macomb Circuit
Court, Mary A. Chrzanowski, J., of distributing or promoting child
sexually abusive material, possession of child sexually abusive
material, and using the Internet or a computer to communicate
with people for the purpose of possessing the material. The Court
of Appeals, C
AVANAGH
,P.J., and G
AGE
and Z
AHRA
, JJ., reversed the
conviction and sentence for distributing or promoting child sexu-
ally abusive material and affirmed the remaining convictions and
sentences. 260 Mich App 201 (2003). The Supreme Court granted
the prosecution’s application for leave to appeal the reversal by the
Court of Appeals. 470 Mich 889 (2004).
In separate opinions, the Supreme Court held:
In order to convict a defendant of distributing or promoting
child sexually abusive material under MCL 750.145c(3), the pros-
ecution must prove that the defendant distributed or promoted
child sexually abusive material, knew the material to be child
sexually abusive material at the time of distribution or promotion,
and distributed or promoted the material with criminal intent.
The mere acquisition and possession of child sexually abusive
material through the use of the Internet does not constitute a
violation of MCL 750.145c(3). In this case, there was insufficient
evidence for the defendant’s conviction of distributing or promot-
ing child sexually abusive material.
Justice K
ELLY
, joined by Justices C
AVANAGH
and M
ARKMAN
, stated
that there was insufficient evidence for a jury to conclude beyond
a reasonable doubt that the defendant distributed or promoted
child sexually abusive material with criminal intent. Defendant
returned his employer-provided computer with the expectation
that child sexually abusive material on the computer and that had
been obtained on the Internet would not be viewed because all the
computer files would be routinely erased by the employer without
first examining them. But the employer examined the computer
files and discovered the child sexually abusive material. These
facts were insufficient to prove the defendant possessed criminal
446 472 M
ICH
446 [June
intent to distribute or promote the material by returning the
computer. Since this incident formed the basis for the conviction,
the Court of Appeals properly reversed it.
Chief Justice T
AYLOR
concurred in the result and the analysis of
the lead opinion except part VI(B) of that opinion, and wrote
separately to explain his reasons for concluding that reversal of the
defendant’s conviction for “distributing or promoting” child sexu-
ally abusive material was proper. The statute required an intent to
distribute or promote the child sexually abusive material. As the
lead opinion concluded, there was insufficient evidence to prove
that the defendant had this intent under two of the three theories
offered by the prosecution, which involved distinct incidents.
While there was barely sufficient evidence to support the third
prosecution theory, the jury was not instructed that all jurors must
agree on which incident included all elements of the crime.
Although the defendant did not request an instruction on unanim-
ity, it is impossible to determine if the outcome would have been
the same had the jury been properly instructed. This instructional
error was a plain error that affected the defendant’s substantial
rights and that requires reversal of the conviction.
Justice C
ORRIGAN
, joined by Justices W
EAVER
and Y
OUNG
, con-
curring in part and dissenting in part, stated that the majority
correctly concluded that the distribution of child sexually abusive
material must be an intentional act. The Legislature articulated in
MCL 750.145c(3) only one express intent requirement, knowledge
that the distributed material contains child sexually abusive
material. The uncontroverted evidence shows that the defendant’s
distribution of the material was intentional. Neither the Consti-
tution nor the statute supports the majority’s heightened require-
ment that the defendant intend the recipient to discover or view
the prurient material in order to distribute the material. The
decision of the Court of Appeals should be reversed and the
defendant’s conviction should be reinstated.
Affirmed.
C
RIMINAL
L
AW —
D
ISTRIBUTING OR
P
ROMOTING
C
HILD
S
EXUALLY
A
BUSIVE
M
ATE-
RIAL —
I
NTENT
.
A conviction for distributing or promoting child sexually abusive
material requires evidence that the defendant distributed or
promoted child sexually abusive material, knew the material to be
child sexually abusive material at the time of distribution or
promotion, and distributed or promoted the material with criminal
intent; the mere acquisition and possession of child sexually
2005] P
EOPLE V
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OMBS
447
abusive material through the use of the Internet does not consti-
tute distributing or promoting such material (MCL 750.145c[3]).
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, Carl J. Marlinga, Prosecuting Attor-
ney, Robert Berlin, Chief Appellate Lawyer, and Beth
Naftaly Kirshner, Assistant Prosecuting Attorney, for
the people.
State Appellate Defender (by Peter Jon Van Hoek) for
the defendant.
K
ELLY,
J. This case requires us to consider whether
MCL 750.145c(3), which prohibits the distribution or
promotion of child sexually abusive material, requires
that the distribution or promotion be performed with
criminal intent. If criminal intent is an element of the
offense, we must determine also whether the prosecutor
presented sufficient evidence to prove that defendant
possessed it.
We agree with the Court of Appeals that MCL
750.145c(3) requires that an accused be shown to have
had criminal intent to distribute or promote. We also
agree that the evidence presented to the trial court was
insufficient to prove that intent. Therefore, we affirm
the decision of the Court of Appeals that reversed
defendant’s conviction for distributing and promoting
child sexually abusive material.
I. FACTS AND PROCEDURAL HISTORY
Defendant was a field technician for Comcast OnLine,
an organization that sells cable Internet access to busi-
ness and residential customers. Field technicians install
Internet cable service and perform troubleshooting when
a customer encounters difficulty in accessing the Inter-
net.
448 472 M
ICH
446 [June
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PINION BY
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ELLY
,J.
Comcast furnished defendant with a company van
and a laptop computer for employment-related use.
Before the laptop was issued to defendant, the hard
drive was reformatted so that it contained only
company-sanctioned software programs.
On August 9, 2000, a Wednesday, defendant quit his
employment with Comcast. He told Christopher Will-
iams, another Comcast employee, that he would return
the company’s equipment and van on the weekend.
Williams initially told defendant that this would be
acceptable, but called defendant a second time and
advised him that the equipment had to be returned that
day.
Williams retrieved the items from defendant approxi-
mately an hour after the telephone conversation. He
returned the laptop to Comcast’s office and began to
reformat it. Although it was not required in the format-
ting, he ran a search for JPG files, files containing
pictures, “[j]ust to see what was on it.” He found several
and opened one. It contained adult pornography. Will-
iams looked further and came across a picture of a
partially naked young girl.
Because of his discovery, Williams gave the computer
to Carl Radcliff, a data support technician for Comcast.
Radcliff also ran a search for JPG files. He eventually
found “a series of child pornography.” Radcliff indicated
that the pornographic material was not in a readily
available location, but was “buried inside of what’s
known as a user profile.”
The laptop was later turned over to the police.
Detective Edward Stack of the St. Clair Shores Police
Department testified that he and another detective
found images of child pornography on it. Sergeant
Joseph Duke, the supervisor of the Computer Crimes
Unit of the Oakland County Sheriff’s Department,
2005] P
EOPLE V
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OMBS
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PINION BY
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ELLY
,J.
counted over five hundred images on the computer that
he believed qualified “as either child sexually abusive
material or child erotica.”
Sergeant Duke believed that the photographs had
been downloaded from the Internet. He indicated that
the files had been difficult for him to find because they
were buried in subfolders seven directory levels down.
He testified that “[a]s an investigator and as an exam-
iner, it’s kind of a red flag when I have to go down
through 7 directory levels to get to evidence.” When
asked why this raises a red flag, Sergeant Duke said it
indicates that the data are being hidden.
Because of the discovery of child pornography, and
because there were two minor children living in defen-
dant’s home, David Joseph, a children’s protective
services worker with the Family Independence Agency,
1
interviewed defendant. Joseph testified that defendant
told him that, when a Comcast employee leaves employ-
ment, new programs are installed in that employee’s
computer. Defendant indicated that he did not think
anybody would go through the files he had created
there. He presumed that the hard drive would simply be
wiped clean before installation of new software.
Defendant admitted to Joseph that he had obtained
the photographs “from the Internet and from sharing
with others.” Joseph also said that it was his impression
from talking with defendant that defendant had taken
part in an Internet club that exchanged child pornog-
raphy.
A jury convicted defendant of (1) distributing or
promoting child sexually abusive material, MCL
750.145c(3); (2) possessing the material, MCL
1
Family Independence Agency is now the Department of Human
Services.
450 472 M
ICH
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,J.
750.145c(4); and (3) using the Internet or a computer to
communicate with people for the purpose of possessing
the material, MCL 750.145d.
2
In a published opinion,
the Court of Appeals reversed defendant’s conviction
for distributing or promoting child sexually abusive
material under MCL 750.145c(3) and affirmed his other
convictions. 260 Mich App 201; 679 NW2d 77 (2003).
The prosecutor appeals the reversal to this Court. 470
Mich 889 (2004).
II. STANDARD OF REVIEW AND STATUTORY CONSTRUCTION
Issues of statutory interpretation, like questions of
law, are reviewed de novo. People v Koonce, 466 Mich
515, 518; 648 NW2d 153 (2002). In interpreting a
statute, our goal is to ascertain and give effect to the
Legislature’s intent. People v Morey, 461 Mich 325, 330;
603 NW2d 250 (1999). Where the language of the
statute is unambiguous, the Court presumes that the
Legislature intended the meaning expressed. Id.
Accordingly, to determine whether a statute imposes
strict liability or requires proof of a guilty mind, the
Court first searches for an explicit expression of intent
in the statute itself. See People v Quinn, 440 Mich 178,
185; 487 NW2d 194 (1992).
Normally, criminal intent is an element of a crime.
People v Rice, 161 Mich 657, 664; 126 NW 981 (1910).
Statutes that create strict liability for all their elements
are not favored. Quinn, 440 Mich at 187. Hence, we
tend to find that the Legislature wanted criminal intent
to be an element of a criminal offense, even if it was left
unstated.
2
On appeal to us, defendant did not challenge his convictions under
MCL 750.145c(4) or MCL 750.145d. Therefore, this Court takes no
position on whether the facts are sufficient to support convictions under
those provisions.
2005] P
EOPLE V
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OMBS
451
O
PINION BY
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ELLY
,J.
III. CRIMINAL INTENT IS AN ELEMENT OF MCL 750.145c(3)
The statutory provision under consideration, MCL
750.145c(3), reads in relevant part:
A person who distributes or promotes, or finances the
distribution or promotion of, or receives for the purpose of
distributing or promoting, or conspires, attempts, or pre-
pares to distribute, receive, finance, or promote any child
sexually abusive material or child sexually abusive activity
is guilty of a felony, punishable by imprisonment for not
more than 7 years, or a fine of not more than $50,000.00, or
both, if that person knows, has reason to know, or should
reasonably be expected to know that the child is a child or
that the child sexually abusive material includes a child or
that the depiction constituting the child sexually abusive
material appears to include a child, or that person has not
taken reasonable precautions to determine the age of the
child. This subsection does not apply to the persons de-
scribed in section 7 of 1984 PA 343, MCL 752.367.
The question presented is whether, to be convicted
under the statute, a defendant must possess the crimi-
nal intent to distribute or promote child pornography.
Considering solely the statute’s words, it is apparent
that criminal intent, mens rea, is not explicitly required.
The only specific knowledge requirement is that the
defendant knew that the sexually abusive material
included or appeared to include a child.
IV. UNITED STATES SUPREME COURT PRECEDENT
The United States Supreme Court has addressed the
issue whether a criminal intent element should be read
into a statute where it does not appear. Morissette v
United States, 342 US 246; 72 S Ct 240; 96 L Ed 288
(1952). In Morissette, the defendant took spent shell
casings from a government bombing range and sold
them for salvage. The defendant was convicted of con-
452 472 M
ICH
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ELLY
,J.
verting government property despite evidence suggest-
ing that he had no criminal intent to steal anything and
thought the property abandoned. The trial court in-
structed the jury that a lack of criminal intent was not
a defense to the charge. Id. at 247-249.
In reviewing the case, the Morissette Court began
with the proposition that criminal offenses that do not
require a criminal intent are disfavored. Liability with-
out criminal intent will not be found in the absence of
an express or implied indication of congressional intent
to dispense with the criminal intent element. Id.at
250-263. Morissette stated:
The contention that an injury can amount to a crime
only when inflicted by intention is no provincial or tran-
sient notion. It is as universal and persistent in mature
systems of law as belief in freedom of the human will and
a consequent ability and duty of the normal individual to
choose between good and evil. A relation between some
mental element and punishment for a harmful act is almost
as instinctive as the child’s familiar exculpatory “But I
didn’t mean to,” and has afforded the rational basis for a
tardy and unfinished substitution of deterrence and refor-
mation in place of retaliation and vengeance as the moti-
vation for public prosecution. Unqualified acceptance of
this doctrine by English common law in the Eighteenth
Century was indicated by Blackstone’s sweeping statement
that to constitute any crime there must first be a “vicious
will.” Common-law commentators of the Nineteenth Cen-
tury early pronounced the same principle....
Crime, as a compound concept, generally constituted
only from concurrence of an evil-meaning mind with an
evil-doing hand, was congenial to an intense individualism
and took deep and early root in American soil. As the states
codified the common law of crimes, even if their enact-
ments were silent on the subject, their courts assumed that
the omission did not signify disapproval of the principle but
merely recognized that intent was so inherent in the idea of
the offense that it required no statutory affirmation.
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Courts, with little hesitation or division, found an impli-
cation of the requirement as to offenses that were taken
over from the common law. The unanimity with which
they have adhered to the central thought that wrongdoing
must be conscious to be criminal is emphasized by the
variety, disparity and confusion of their definitions of the
requisite but elusive mental element. However, courts of
various jurisdictions, and for the purposes of different
offenses, have devised working formulae, if not scientific
ones, for the instruction of juries around such terms as
“felonious intent,” “criminal intent,” “malice afore-
thought,” “guilty knowledge,” “fraudulent intent,” “wil-
fulness,” “scienter,” to denote guilty knowledge, or “mens
rea,” to signify an evil purpose or mental culpability. By
use or combination of these various tokens, they have
sought to protect those who were not blameworthy in
mind from conviction of infamous common-law crimes.
[Id. at 250-252.]
The Court then considered the history and purpose of
the federal statute at issue and determined that there
was no indication that Congress wanted criminal intent
eliminated from the offense. Id. at 265-269.
The Morissette Court noted the longstanding pre-
sumption that all crimes require criminal intent. It
held that Congress’s failure to include a criminal
intent element did not signal a desire to preclude the
need to prove criminal intent. R ather, the omission of
any mention of criminal intent was not to be construed
as eliminating the element from the crime. Id.at
272-273.
Since the Morissette decision, the United States Su-
preme Court has reiterated that offenses not requiring
criminal intent are disfavored. The Court will infer the
presence of the element unless a statute contains an
express or implied indication that the legislative body
wanted to dispense with it. Moreover, the Court has
expressly held that the presumption in favor of a
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criminal intent or mens rea requirement applies to each
element of a statutory crime.
In Staples v United States,
3
the Court interpreted a
federal statute that makes it a crime to possess an
unregistered weapon capable of automatic firing. The
Court noted that silence with respect to criminal intent
does not, by itself, “necessarily suggest that Congress
intended to dispense with a conventional mens rea ele-
ment, which would require that the defendant know the
facts that make his conduct illegal.” Staples, 511 US at
605.
The Court observed that the existence of mens rea
“ ‘is the rule of, rather than the exception to, the
principles of Anglo-American criminal jurisprudence.’ ”
Id., quoting United States v United States Gypsum Co,
438 US 422, 436; 98 S Ct 2864; 57 L Ed 2d 854 (1978).
It held that silence did not suggest that Congress
intended to eliminate a mens rea requirement from the
National Firearms Act. Staples said:
On the contrary, we must construe the statute in light of
the background rules of the common law, in which the
requirement of some mens rea for a crime is firmly embed-
ded....
There can be no doubt that this established concept has
influenced our interpretation of criminal statutes. Indeed,
we have noted that the common-law rule requiring mens
rea has been “followed in regard to statutory crimes even
where the statutory definition did not in terms include it.”
Relying on the strength of the traditional rule, we have
stated that offenses that require no mens rea generally are
disfavored, and have suggested that some indication of
congressional intent, express or implied, is required to
dispense with mens rea as an element of a crime. [Staples,
511 US at 605-606 (citations omitted).]
3
511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994).
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In United States v X-Citement Video, Inc,
4
the United
States Supreme Court applied the mens rea rule to a
federal statute prohibiting child pornography. The stat-
ute made it illegal to “knowingly transport[] or ship[]”
or “knowingly receive[] or distribute[]” any visual de-
piction involving the use of a minor engaging in sexu-
ally explicit conduct. 18 USC 2252. The Court was
required to determine whether the term “knowingly” as
used in the section also modified the phrase “use of a
minor.” The Court undertook to determine whether the
defendant must knowingly transport the material and
must know that it depicted a minor engaged in sexually
explicit conduct.
The X-Citement Video Court presumed that mens rea
must be shown to obtain a conviction, there being no
clear congressional intent that strict liability should be
imposed. It held that Congress must have intended that
an accused transported the material knowingly and had
knowledge of its nature to be guilty of the crime.
X-Citement Video, 513 US at 78. The Court noted that
this reading was necessary because “some form of
scienter is to be implied in a criminal statute even if not
expressed” and because “a statute is to be construed
where fairly possible so as to avoid substantial consti-
tutional questions.” Id. at 69.
V. APPLICATION OF PRECEDENT TO RESOLVE
THE CRIMINAL INTENT QUESTION
We apply this Supreme Court precedent to the case
before us. No mens rea with respect to distribution or
promotion is explicitly required in MCL 750.145c(3).
Absent some clear indication that the Legislature in-
tended to dispense with the requirement, we presume
4
513 US 64; 115 S Ct 464; 130 L Ed 2d 372 (1994).
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that silence suggests the Legislature’s intent not to
eliminate mens rea in MCL 750.145c(3).
The Court of Appeals correctly reached this conclu-
sion. The most applicable dictionary definition of “dis-
tribute” implies putting items in the hands of others as
a knowing and intentional act.
5
Likewise, the terms
“promote” and “finance,” and the phrase “receives for
the purpose of distributing or promoting” contemplate
knowing, intentional conduct on the part of the ac-
cused.
The use of these active verbs supports the presump-
tion that the Legislature intended that the prosecution
prove that an accused performed the prohibited act
with criminal intent. If we held otherwise, not only
would it be illogical, we would create a questionable
scheme of punishment: One who, with criminal intent,
possessed child sexually abusive material would be
subject to a lesser punishment than someone who,
without criminal intent, passed along such material to
others.
6
The Court of Appeals holding that the prosecution
must prove criminal intent to distribute or promote
fully implements the goal of the legislative scheme. It
5
“Distribute: to divide and give out in shares; allot. To pass out or
deliver: to distribute pamphlets.” The Random House College Dictionary
(2001) “[T]o give out or deliver especially to members of a group <distrib-
ute newspapers>.” Merriam-Webster OnLine Dictionary <http://www.
m-w.com> (accessed April 5, 2005). “[T]o divide (something) among
several or many people, or to spread or scatter (something) over an area.”
Cambridge Dictionary of American English (Online version)
<http://www.dictionary. cambridge.org> (accessed April 5, 2005).
6
The maximum penalty for violating MCL 750.145c(3), distributing or
promoting child sexually abusive material, is seven years in prison and a
fine of $50,000. The maximum penalty for possessing child sexually
abusive material, MCL 750.145c(4), is four years in prison and a $10,000
fine. When defendant was convicted, MCL 750.145c(4) provided for
imprisonment of one year.
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also avoids substantial constitutional questions. The
fact, standing alone, that the Legislature did not affix
the term “knowingly” to the distribution or promotion
element does not mean that the Legislature intended a
strict liability standard.
As the United States Supreme Court explained in
X-Citement Video,
7
if there were no mens rea element
respecting the distribution of the material, the statute
could punish otherwise innocent conduct. For instance,
a person might accidentally attach the wrong file to an
e-mail sent to another. The person might intend to send
an innocent photograph, but accidentally send a porno-
graphic photograph of a child instead. Also, the person
might not intend that the recipient recognize or even
see the material that he transferred.
If the statute contained no mens rea element, a
person lacking any criminal intent could be convicted
and sentenced to seven years in prison and a fine of
$50,000. Or, as in the present case, he could be found
criminally liable for returning a laptop owned by his
employer, intending only that the offending material be
destroyed.
8
If this were the law, Comcast employees who trans-
ferred defendant’s JPG computer files among them-
7
513 US at 69.
8
The dissent claims that evidence of intent is found in the fact that
defendant returned the laptop containing the offending material. There
is evidence that defendant intended to distribute the laptop to Comcast,
but there is no evidence of a criminal intent on his part to distribute child
sexually abusive material. In fact, all the evidence points to the contrary
conclusion, that defendant did not distribute the material with a criminal
intent. He returned the laptop to his former employer as required and
with the expectation that his former employer would not search for and
find the child sexually abusive material. This is further supported by the
fact that the material was hidden in subfolders seven directory levels
down.
458 472 M
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,J.
selves and ultimately to the police, knowing what was in
them, would have violated MCL 750.145c(3). It would
be immaterial that they had no criminal intent. Such a
reading of the statute would frustrate its purpose.
9
For all of the reasons given, we conclude that the
Legislature intended that criminal intent to distribute
be an element of MCL 750.145c(3).
VI. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION
FOR DISTRIBUTING CHILD SEXUALLY ABUSIVE MATERIAL
The next question is whether the prosecution proved
that defendant had the criminal intent to distribute or
promote child sexually abusive material. Due process
requires proof of intent beyond a reasonable doubt.
People v Petrella, 424 Mich 221, 268; 380 NW2d 11
(1985). When determining if sufficient evidence was
presented to sustain a conviction, a court must view the
evidence in a light most favorable to the prosecution. It
must determine whether any rational trier of fact could
have found that the essential elements of the crime
were proven as required. People v Wolfe, 440 Mich 508,
515; 489 NW2d 748 (1992).
A. RETURN OF THE LAPTOP TO COMCAST
Although defendant intended to distribute the laptop
containing child sexually abusive material to his former
9
The dissent insists that these Comcast employees could be convicted
under our reading of MCL 750.145c(3), post at474n6.Itappearstomiss
the distinction between intent to commit an act, such as returning
another’s personal property, and intent to commit a crime, a “guilty
mind.” The Comcast employees intended to report a suspected crime.
They did not intend to illegally distribute child sexually abusive material.
The dissent states that, in other statutes, the Legislature has taken
steps to prevent the prosecution of people who lack criminal intent. But it
fails to show how those statutes are relevant to the issue before us, which
is whether MCL 750.145c(3) includes criminal intent as an element.
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employer, no evidence suggests that he distributed the
material with a criminal intent. There was no evidence
that defendant made anyone at Comcast aware, or
attempted to make anyone aware, of the presence of the
material. To the contrary, there is evidence that defen-
dant neither intended nor expected anyone at Comcast
to discover or view the material.
Comcast witnesses acknowledged that the computer
hard drive could be erased and reformatted without any
of its files being reviewed. Mr. Williams admitted that
this was the practice at Comcast and that defendant
himself may have previously performed such erasures
on returned computers.
Williams admitted that he looked through defen-
dant’s files because “I just wanted to see what was on
there,” not because it was necessary. Williams further
testified that he did not tell defendant when he ar-
ranged to pick up the computer that he intended to look
at any of his files. Another witness testified that the
practice at Comcast was simply to wipe the hard drives
of all information and reformat them.
From the testimony, one could reasonably conclude
that defendant anticipated that no one at Comcast
would review his files. His statement to FIA investiga-
tors was that he thought the entire hard drive would be
merely erased and reformatted. Viewed most favorably
to the prosecution, the record contains nothing from
which to reasonably infer that defendant intentionally
left the material on the laptop for Comcast’s employees
to discover.
The dissent questions the relevancy of the fact that
defendant did not intend anybody to discover or view
the material. As explained above, defendant could be
convicted of distributing child sexually abusive material
only if he distributed the material with a criminal
460 472 M
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intent. Obviously, if defendant distributed the material
not intending anybody to discover or view it, he did not
distribute it with a criminal intent.
Defendant returned the computer, as he was required
to do, to individuals who possibly knew how to find the
information. This does not change the fact that defen-
dant concealed the images. Nor does it change the fact
that, on the basis of past company practice, defendant
legitimately believed that those individuals would not
search the computer for picture files. That someone had
the ability and desire to search for the material defen-
dant purposefully concealed does not affect the analysis
of defendant’s state of mind. The actions of a third
party could not create a criminal intent in the mind of
defendant.
In addition to defendant’s statement to the FIA,
substantiation for the inference that there was no mens
rea is found in the testimony of prosecution witness
Radcliffe. He said that the photos were buried deep in a
user profile, not in a readily available location. Like-
wise, Sergeant Duke testified that, in his opinion, the
location, seven directory levels down, indicated that
defendant intended to keep the material secret.
Hence, insufficient evidence existed from which the
jury could draw an inference beyond a reasonable doubt
that, when returning the laptop, defendant distributed
child sexually abusive material with criminal intent. We
avoid the dissent’s error of conflating the criminal
intent to distribute child sexually abusive material with
the simple intent to return the laptop.
B. DEFENDANT’S INTERNET ACTIVITY
The prosecutor made the alternative argument that
defendant distributed child sexually abusive material
over the Internet. However, the jury acquitted him of
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that crime. It specifically found that defendant did not
use a computer or the Internet to communicate with
another person to distribute or promote child sexually
abusive material. MCL 750.145d. It found him guilty
only of using a computer or the Internet to communi-
cate with another person in order to possess child
sexually abusive material. Id.
We apply the same reasoning regarding this argu-
ment as did the Court of Appeals:
Given the prosecutor’s theory that defendant distrib-
uted child sexually abusive material by returning to Com-
cast the computer containing such material and the jury’s
verdict of acquittal on the charge of using a computer to
distribute or promote such material, we conclude that
defendant’s conviction solely rests upon the theory prima-
rily advanced by the prosecution at trial: that defendant
distributed child sexually abusive material by returning to
Comcast a computer that contained such material. Accord-
ingly, our review of the sufficiency of the evidence is limited
to the theory that resulted in defendant’s conviction. [260
Mich App at 208.] [Emphasis added.]
In his concurrence, Chief Justice T
AYLOR
concludes
that there was sufficient evidence for the jury to convict
defendant of distributing child sexually abusive mate-
rial. The basis for the conviction could have been that
he shared such material with others on the Internet.
The concurrence acknowledges that the jury specifically
acquitted defendant of using a computer to distribute
such material, but it observes that jury verdicts need
not be consistent.
We reason that, although inconsistent jury verdicts
may be legally permissible, it does not follow that we
should find verdicts inconsistent when it is possible to
find them consistent. See Lagalo v Allied Corp, 457
Mich 278, 282; 577 NW2d 462 (1998) (“ ‘[i]f there is an
interpretation of the evidence that provides a logical
462 472 M
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,J.
explanation for the findings of the jury, the verdict is
not inconsistent.’ ”). (Citation omitted.)
There is no disagreement that, here, the jury specifi-
cally acquitted defendant of using a computer to dis-
tribute child sexually abusive material, and it convicted
him of distributing such material. It could have found
him guilty of distributing the material in one of two
ways: (a) finding that he shared the material with
others on the Internet, or (b) finding that he distributed
it by returning the computer to Comcast. The former
would be inconsistent with the jury’s verdict concerning
the “use of a computer to distribute child sexually
abusive material” charge; the latter would not be.
Because we presume that the verdicts are consistent,
we conclude that the jury convicted defendant of dis-
tributing the material by returning the computer to
Comcast.
10
VII. THERE IS INSUFFICIENT EVIDENCE TO SUPPORT A CONVIC-
TION FOR PROMOTING CHILD SEXUALLY ABUSIVE MATERIAL
It is without dispute that defendant possessed child
sexually abusive material that he had obtained over the
Internet. The prosecution contends that possessing the
material is the legal equivalent of promoting it for
purposes of MCL 750.145c(3).
MCL 750.145c(3) reads:
A person who distributes or promotes, or finances the
distribution or promotion of, or receives for the purpose of
10
The concurring justice mistakes defense of our analysis for a criti-
cism of his unanimity argument. Rather than criticize the argument, we
simply find that there is no reason to consider the unanimity issue. The
jury specifically acquitted defendant of using a computer or the Internet
to distribute child sexually abusive material. This conclusive determina-
tion precludes reliance on the rationale that the conviction for distribu-
tion was based on defendant’s Internet activity. We need go no further.
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,J.
distributing or promoting, or conspires, attempts, or pre-
pares to distribute, receive, finance, or promote any child
sexually abusive material or child sexually abusive activity
is guilty of a felony, punishable by imprisonment for not
more than 7 years, or a fine of not more than $50,000.00, or
both....[Emphasis added.]
MCL 750.145c(4) reads:
A person who knowingly possesses any child sexually
abusive material is guilty of a felony punishable by impris-
onment for not more than 4 years or a fine of not more than
$10,000.00, or both,
[11]
if that person knows, has reason to
know, or should reasonably be expected to know the child is
a child or that the child sexually abusive material includes
a child or that the depiction constituting the child sexually
abusive material appears to include a child, or that person
has not taken reasonable precautions to determine the age
of the child. [Emphasis added.]
Possession is not the same as promotion. The pros-
ecutor blurs the two, asserting that by obtaining the
material from the Internet, defendant promoted it. To
accept that argument, this Court would have to ignore
the express language of the Legislature that created a
graduated scheme of offenses and punishments regard-
ing child sexually abusive material.
The Legislature expressly separated the crimes of
production of child sexually abusive material,
12
distri-
bution or promotion of the material, and simple posses-
sion. It would not have made the distinction had it
intended to equate mere possession with promotion.
If the Legislature had wanted end-users of the mate-
rial to be guilty of promoting such material merely
because they possess it, MCL 750.145c(4) would have
11
MCL 740.145c(4) was amended after defendant’s trial. Formerly, a
violation of this provision was punishable as a misdemeanor.
12
MCL 750.145c(2).
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included promotion. Alternatively, the Legislature
would have equated possession with both distribution
and promotion in MCL 750.145c(3) instead of creating a
separate provision for possession in § 145c(4). The
statute on its face makes the mere possession of child
sexually abusive material a different and less severe
offense than either distribution or promotion of the
material.
VIII. CONCLUSION
We hold that, to convict a defendant of distribution or
promotion under MCL 750.145c(3), the prosecution
must prove that (1) the defendant distributed or pro-
moted child sexually abusive material, (2) the defen-
dant knew the material to be child sexually abusive
material at the time of distribution or promotion, and
(3) the defendant distributed or promoted the material
with criminal intent. Also, we hold that the mere
obtaining and possessing of child sexually abusive ma-
terial using the Internet does not constitute a violation
of MCL 750.145c(3).
There was insufficient evidence in this case for a jury
to conclude beyond a reasonable doubt that defendant
distributed or promoted child sexually abusive material
with criminal intent. Therefore, we affirm the Court of
Appeals decision reversing defendant’s conviction of
distribution or promotion under MCL 750.145c(3).
C
AVANAGH
and M
ARKMAN
, JJ., concurred with K
ELLY
,
J.
T
AYLOR,
C.J. (concurring). I concur in the result of
Justice K
ELLY
’s opinion and with her analysis in all but
part VI(B). I write separately to explain my own reasons
for reaching the conclusion that defendant’s conviction
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for “distributing or promoting” child sexually abusive
material was properly reversed by the Court of Appeals.
I agree with Justice K
ELLY
regarding the intent required
to establish a violation of this statute. In addition, I
believe such an intent is required because without it,
otherwise innocent conduct could be criminalized. As a
general rule there can be no crime without a criminal
intent.
1
People v Roby, 52 Mich 577, 579; 18 NW 365
(1884) (C
OOLEY
, C.J.). The United States Supreme Court
has spoken extensively on this, holding that when a
criminal statute is totally silent about state of mind (as
is often the case), courts nonetheless assume that
Congress intended to require some kind of guilty knowl-
edge with respect to certain elements of the crime. See
Liparota v United States, 471 US 419, 426; 105 S Ct
2084; 85 L Ed 2d 434 (1985) (courts should not read
criminal statutes as requiring no mens rea); Morissette
v United States, 342 US 246, 255-256, 263; 72 S Ct 240;
96 L Ed 288 (1952).
Under Justice C
ORRIGAN
’s interpretation, the only
element requiring criminal intent is that the material is
child pornography, because this is the element that
criminalizes otherwise innocent conduct. However, a
person may be aware of the existence of such material
without taking the criminal step of distributing it or
promoting it. Such a person would be engaging only in
innocent conduct until the element of distributing or
promoting is met. What Justice C
ORRIGAN
seems to be
arguing here is that defendant possessed the material,
and then went one step further and handed the com-
puter to Comcast employees, and thus he had not
engaged in only innocent conduct before distributing.
However, possession is not an element of distributing or
1
Strict liability crimes present a very limited exception to this rule, but
I do not believe this crime is in that category.
466 472 M
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AYLOR
, C.J.
promoting, and we must look at the elements of the
charged crime, not the facts of the case before us, in
determining the required intent. The Court of Appeals
correctly applied this law in its analysis, finding that
defendant did not “distribute” the material when he
returned the computer to Comcast because he did not
“intend[] for anyone to see or receive child sexually
abusive material.” 260 Mich App 201, 217; 679 NW2d 77
(2003).
Thus, I agree with Justice K
ELLY
’s conclusion that
there was insufficient evidence to prove defendant had
this intent when he returned the computer to Comcast.
Ante at 461. I also agree with her analysis and conclu-
sion that there was insufficient evidence supporting the
prosecutor’s second theory, i.e., that defendant pro-
moted child sexually abusive material by merely acquir-
ing or possessing it. Justice K
ELLY
properly concludes
that acquisition or possession of the material is not
legally equivalent to promoting it for the purposes of
MCL 750.145c(3). Ante at 465.
Finally, while I agree with her conclusion that
defendant’s conviction for distributing or promoting
child sexually abusive material is not supported by the
prosecutor’s third theory—that defendant committed
the crime by uploading or sharing child sexually abu-
sive material through the Internet—I do not find her
analysis of this issue persuasive. Although the jury
found defendant not guilty of using a computer or the
Internet to distribute or promote child sexually abu-
sive material, the elements of the more general distri-
bution crime are also satisfied by defendant’s alleged
acts of sharing the material, and this is sufficient to
convict. When a defendant is convicted under a multi-
count indictment, we must consider whether the ele-
ments of each charge have been met. People v Vaughn,
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AYLOR
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409 Mich 463, 465; 295 NW2d 354 (1980). Each count
is regarded as if it were a separate indictment, and jury
verdicts rendered on the several counts need not be
consistent. Id.
In contrast to Justice K
ELLY
’s analysis, I believe the
evidence supporting this theory is sufficient (but
barely) when the evidence presented at trial, and the
reasonable inferences taken from it, is viewed in the
light most favorable to the prosecution.
2
See People v
Tanner, 469 Mich 437, 444 n 6; 671 NW2d 728 (2003).
However, the fact is that the prosecutor presented to
the jury distinct factual situations, each of which could
have been seen by individual jurors as satisfying the
actus reus of the single charge.
3
This is permissible, but
only if the jurors are instructed that they all must
unanimously agree that defendant committed at least
one of the criminal acts. That unanimity requirement,
not having been presented to the jury, is fatal to this
conviction. The Michigan Constitution requires the
jury’s verdict to be unanimous to comply with minimal
due process. Const 1963, art 1, § 14; see People v Cooks,
446 Mich 503, 510-511; 521 NW2d 275 (1994); Schad v
Arizona, 501 US 624, 649-652; 111 S Ct 2491; 115 L Ed
2d 555 (1991) (Scalia, J., concurring). Unanimity is not
a difficulty if there is a single charged criminal act that
could have been committed in various ways. In such a
case, jurors need not agree on the mode of commission.
Thus, submitting a charge of murder in which the de-
2
At trial, Mr. David Joseph, the children’s protective services worker,
testified that defendant admitted “sharing” child pornography through
the Internet. When pressed as to what defendant meant by “sharing,” Mr.
Joseph first admitted he was not an expert, then stated that his
“impression” was that defendant was part of a club. He did not testify
that defendant “stated” he was part of a club.
3
That is, although defendant was charged only once, the alleged acts
could have resulted in three separate charges.
468 472 M
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fendant either killed with premeditation or committed
the murder during the course of a felony does not
violate due process because the jury still determines
what crime was committed as a result of the single,
unlawful act. Likewise, “when a statute lists alterna-
tive means of committing an offense, which means in
and of themselves do not constitute separate and
distinct offenses, jury unanimity is not required with
regard to the alternate theories.” People v Gadomski,
232 Mich App 24, 31; 592 NW2d 75 (1998). For
example, in Gadomski, an instruction on unanimity
was not necessary when the jury was required to find
that the defendant engaged in a specific act of sexual
penetration alleged by the prosecution and that this
act was accompanied by one of three alternative ag-
gravating circumstances: (1) that the act occurred
during the commission of a home invasion, see MCL
750.520b(1)(c); (2) that it involved aiding and abetting
and force or coercion, see MCL 750.520b(1)(d)(ii); or
(3) that it caused personal injury to the victim and
involved force or coercion, MCL 750.520b(1)(f). Id.at
29-31. But if discrete, specific acts were committed,
each of which is claimed to satisfy all the elements of
the charged crime, the trial court is required to
instruct the jury that it must unanimously agree on
the same specific act. Cooks, supra at 530.
Here, at least two of the alleged criminal acts re-
quired materially different evidence. The act of return-
ing the computer to Comcast involved a separate and
different set of facts from those concerning defendant’s
alleged involvement in facilitating the exchange of
Internet child pornography. To have a valid conviction,
the jurors had to be instructed that they all had to agree
on the incident in which all elements of the crime had
been established. This was not done, and this deprived
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defendant of due process.
4
Schad, supra at 650. Com-
plicating this, however, is the fact that the error was
unpreserved because defendant did not request such an
instruction and did not object to the instructions as
given.
MCL 768.29 provides that “[t]he failure of the court
to instruct on any point of law shall not be ground for
setting aside the verdict of the jury unless such an
instruction is requested by the accused,” but this stat-
ute can only control if enforcing it would not run afoul
of the Constitution. In an effort to make such incom-
patibilities of statutes and the Constitution as infre-
quent as possible, a canon of construction has developed
that constrains us to construe the statute at issue, if
possible, in a manner that does not conflict with the
Constitution. People v Bricker, 389 Mich 524, 528; 208
NW2d 172 (1973). People v Carines, 460 Mich 750,
763-765; 597 NW2d 130 (1999), has outlined our ap-
proach to these cases and holds that with unpreserved,
constitutional error, such as we have here, the defen-
dant, to secure a reversal, must show that three re-
quirements are met: “1) error must have occurred, 2)
the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights.” Id. at 763.
4
The lead opinion in responding to this position misunderstands it. My
position is that all the jurors must agree on the same incident that
establishes the crime. You cannot, to use this case as the example, have
some jurors using the facts of one incident (the return of the computer)
and others using another incident (the alleged distribution of pornogra-
phy over the Internet) to establish a crime of distribution. To prevent
this, an instruction telling the jurors that they must agree on not only the
bottom line but also on which incident establishes the crime was
necessary. This was not done here and thus error requiring reversal
occurred. My argument is not predicated on the consistency of the several
verdicts themselves. Indeed, the verdicts could be consistent and the
unanimity requirement still be violated. Nothing in the lead opinion
responds to this simple point.
470 472 M
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, C.J.
The error here meets all these elements. The jury
could have convicted, and most likely did convict, de-
fendant on the basis of his act of turning in the
computer. Alternatively, it could have convicted on the
theory the prosecutor presented that acquiring and
possessing the material equates with “promotion.” Fi-
nally, it could have convicted him on the basis of a single
piece of testimony from which one may infer that
defendant distributed the material by uploading it and
sending it to others through the Internet. While two of
these three theories were impermissible as a matter of
law (having no proof of criminal intent) and the third
was permissible, as I have discussed, there is simply no
showing, nor can there be, that the jurors all agreed on
the same incident as the one in which all elements of
the crime were shown. This is a violation of the una-
nimity requirement. Moreover, it is impossible to say
that, had the jury been properly instructed, the out-
come would be the same. This constitutes plain error
that affected defendant’s substantial rights and the
conviction must be reversed.
For the reasons I have stated, I agree with Justice
K
ELLY
’s result of affirming the Court of Appeals rever-
sal of defendant’s conviction for distributing or promot-
ing child sexually abusive material and I agree with her
analysis in all but part VI(B).
C
ORRIGAN,
J. (concurring in part and dissenting in
part). I agree with the majority that the distribution or
promotion of child sexually abusive material must be an
intentional act. I respectfully dissent, however, from the
majority’s application of intentionality. Under the ma-
jority view, the intentionality of defendant’s act is
negated because he allegedly and erroneously believed
that Comcast’s computer technicians would not “dis-
cover or view” the child sexually abusive material. The
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majority’s erroneous analysis adds a heightened intent
element that is not constitutionally required and is not
found in the plain language of the statute.
I believe that the prosecution presented sufficient
evidence that defendant distributed child sexually abu-
sive material. Defendant distributed child sexually abu-
sive material when he deliberately returned the
company-owned computer to his employer, with full
knowledge that the computer contained images that he
knew to be child sexually abusive material. Accordingly,
I would reverse the decision of the Court of Appeals and
reinstate defendant’s conviction of distributing child
sexually abusive material, MCL 750.145c(3).
While the majority properly imputes an intent to the
distribution or promotion element contained in the
statute, it is undisputed that defendant intentionally
distributed the computer to his employer with the
knowledge that the computer contained child sexually
abusive material. Testimony adduced at trial reveals
that, on the day defendant resigned his employment
with Comcast, defendant was informed that he would
have to return the company automobile and computer
the same day. His supervisor, Christopher Williams,
testified that he waited “45 minutes to an hour” before
proceeding to defendant’s residence. While en route to
defendant’s residence, defendant telephoned Williams
and told Williams that “everything was ready.” The
evidence revealed that, although given less time than
requested, defendant voluntarily returned the com-
puter to Comcast.
Moreover, the testimony of David Joseph revealed
that defendant was aware that the prurient material
was on the computer at the time the computer was
returned. Joseph testified that defendant was not con-
cerned that the material would be discovered on the
472 472 M
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,J.
Comcast computer because defendant “didn’t feel as
though there would be anybody that would go through
those individual files” because defendant believed that
“the hard drive would sort of just be wiped out.”
Defendant further stated to Joseph that he “didn’t get
the opportunity” to “expunge the material that he knew
was offensive.”
1
The evidence adduced clearly estab-
lishes that defendant deliberately returned the com-
puter to Comcast, knowing that it contained child
sexually abusive material. Because the statute requires
no more, this should end the inquiry.
The lead opinion casts the issue as whether defen-
dant’s distribution of child sexually abusive material
must be an intentional act; however, the opinion ignores
the uncontroverted evidence that the distribution was
in fact an intentional act. Instead, the opinion concludes
that defendant did not intentionally distribute the child
sexually abusive material because “defendant neither
intended nor expected anyone at Comcast to discover or
view the material.” Ante at 460 (emphasis added).
The lead opinion requires a heightened mens rea
element that is not supported in the language of the
statute and that is not constitutionally required. The
opinion cites Morissette v United States,
2
Staples v
United States,
3
and United States v X-Citement Video,
Inc,
4
in support of the claim that this additional element
1
While defendant maintained to Joseph that he did not have the
“opportunity” to “expunge” the child pornography, the testimony in the
record indicates otherwise. The testimony of Sgt. Joseph Duke revealed
that a “wiping program” was installed on the hard drive of defendant’s
computer. Duke further testified that it would have taken less than
fifteen minutes to completely eradicate the child pornography files from
the computer.
2
342 US 246; 72 S Ct 240; 96 L Ed 288 (1952).
3
511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994).
4
513 US 64; 115 S Ct 464; 130 L Ed 2d 372 (1994).
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is required. However, those cases do not hold that a
defendant’s criminal intent is dependent on the particu-
lar response or reaction of a third party. In each case,
the Supreme Court held that the prosecution was
required to prove a defendant possessed criminal in-
tent,
5
either with regard to the nature of the volitional
act (Morissette) or with regard to the nature of the
prohibited goods (Staples and X-Citement). In Moris-
sette, for example, the Court required the prosecution to
prove that the defendant had the intent to steal shell
casings. In this case, the prosecution must prove that
defendant had the general intent to distribute child
pornography. See People v Nowack, 462 Mich 392, 405;
614 NW2d 78 (2000) (requiring “ ‘the intent to do the
physical act’ ” for a general intent crime) (citation
omitted). The lead opinion transforms defendant’s ad-
mittedly volitional act into a nonvolitional act on the
basis of what defendant expected his employer to do.
Under the lead opinion, it is not enough that defen-
dant intentionally distribute the computer, nor is it
enough that defendant be aware of the presence of child
pornography on the computer at the time of distribu-
tion. Rather, the opinion requires proof that defendant
specifically intended a particular action or response on
the part of the recipient.
6
5
“Criminal intent” is defined as “[t]he intent to commit a crime....”
Black’s Law Dictionary (5th ed). In this case, defendant intended to
commit a crime, as defined by our Legislature: he knowingly delivered a
computer that he knew to contain child pornography. The only intent
defendant lacked in this case was the intent to get caught.
6
Those on the lead opinion believe that this specific intent is required,
else all the “Comcast employees” who handled the computer files could be
convicted of violating the statute, despite having “no criminal intent.”
Ante at 458 and 459. However, even under the standard articulated in the
lead opinion, all the witnesses could still be convicted of violating the
statute. Each one of the Comcast employees intentionally distributed the
474 472 M
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It is unclear why the lead opinion requires that a
defendant specifically intend his or her recipient to
“discover or view” the prurient material in order to
“distribute” the material. The plain meaning of the
word “distribute” does not support such a requirement.
The dictionary definition of “distribute” is: “1. to divide
and give out in shares; allot. 2. to spread throughout a
space or over an area; scatter. 3. to pass out or deliver:
to distribute pamphlets. 4. to sell (merchandise) in a
specified area.” Random House Webster’s College Dic-
tionary (2d ed, 1997). Likewise, Black’s Law Dictionary
(6th ed) defines “distribute” as “[t]o deal or divide out
in proportion or in shares.” As the Court of Appeals
correctly stated, the most applicable definition of “dis-
tribute” is to “pass out or deliver.” Nothing in either the
lay dictionary or the legal dictionary gives any indica-
tion that “distribution” requires the recipient to view or
appreciate the prurient nature of the material inten-
tionally distributed.
Moreover, the lead opinion makes no effort to ratio-
nalize why defendant’s erroneous belief that no one at
Comcast would “discover or view” the child pornogra-
phy converts defendant’s volitional act into a nonvoli-
computer to his superior, knowing that the computer contained child
pornography, and intending for the recipient to “discover or view” the
material.
Although not directly applicable here, the Legislature has already
taken steps to prevent the prosecution of people deemed to have no
criminal intent. For example, MCL 752.367 contains several exemptions
to MCL 750.145c(3). MCL 750.145c has been amended by 2002 PA 629
and 2004 PA 478. The most recent amendments of MCL 750.145c provide
both civil and criminal immunity from a charge of possession to computer
technicians acting within the scope of their employment. MCL
750.145c(4)(a) and (9). The Legislature has also taken steps to provide
criminal immunity to police officers acting within the scope of their
employment. MCL 750.145c(4)(b). It is within the purview of the Legis-
lature, not the judiciary, to extend this immunity to the distribution of
child pornography.
2005] P
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tional act. Likewise, the opinion fails to explain why
defendant’s criminal intent to distribute turns on how
he believed Comcast would respond after the intention-
ally distributed material was received. While the lead
opinion relies heavily on the claim that “the practice” at
Comcast was to reformat the hard drive of the computer
without reviewing any of the files, the testimony of
Christopher Williams indicated that this practice was
only done “on some of” the company computers. Will-
iams testified that he inspected the contents of the
computer “to see what it needed” before being “issued
to another technician.” Cliff Radcliff testified that the
process of completely erasing the contents of the hard
drive was “lengthy,” and that “just cleaning out the
unneeded files” shortened the cleaning process. The
record does not reveal any company “policy” requiring
the automatic erasure of computer hard drives without
inspection. Indeed, even if such a “policy” did exist, the
lead opinion fails to explain why defendant enjoyed any
type of expectation interest in the continuation of this
so-called “practice.”
7
That defendant believed that the
material would not be discovered in the computer does
not alter the fact that he knew that his employer would
in fact receive the material. Thus, the prosecutor pre-
sented sufficient evidence for a conviction under MCL
750.145c(3).
Apart from the sufficiency of the evidence, Chief
Justice T
AYLOR
raises in his concurrence for the first
time in these proceedings the requirement of unanimity
7
The lead opinion also notes that defendant had “no expectation” that
defendant’s employer would “search for and find” the child pornography.
Yet this ignores the uncontroverted evidence that defendant knowingly
delivered the company computer to computer technicians, who would
have no difficulty locating the images “in subfolders seven directory
levels down.” Indeed, one officer located the materials without difficulty,
despite his inexperience with computer investigations.
476 472 M
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in a conviction. Under this constitutional requirement,
individual jurors must rely on the same actus reus,
despite the presence of alternative acts, when they
convict a defendant. See People v Cooks, 446 Mich 503,
510-511; 521 NW2d 275 (1994). Here, the Chief Jus-
tice’s concern is that the jury heard evidence regarding
two different “acts” that might have met the statute
and might have resulted in defendant’s conviction: (1)
defendant’s return of the computer to his employer and
(2) defendant’s participation in an Internet club that
traded in child sexually abusive material.
While it may be possible that the jury could have
failed to reach unanimity here, the issue has not been
raised by defendant and is not before our Court. Addi-
tionally, as Chief Justice T
AYLOR
notes, this issue is
unpreserved. Defendant neither requested a unanimity
instruction nor objected to the instructions given.
An unpreserved constitutional error comes within
the standard of review articulated in People v Carines,
460 Mich 750, 763-765; 597 NW2d 130 (1999). As the
Chief Justice noted when he listed the requirements for
showing that a plain error occurred that affected a
substantial right, the defendant bears the evidentiary
burden. Id. at 763 (recognizing that the burden of
persuasion for a showing of prejudice was on the
defendant). However, defendant has not established
entitlement to relief under Carines because, at a mini-
mum, defendant did not identify or argue the issue.
Moreover, prejudice requires showing that the error
affected the outcome. This differs from showing the
possibility that the jury improperly failed to meet the
unanimity requirement and requires a showing that the
error did affect the outcome.
Here, the jury was instructed to consider only acts
occurring on August 9, 2000, the day that defendant
2005] P
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relinquished his employment. The social worker’s tes-
timony did not link defendant’s admission that he
participated in an Internet club to any particular date.
Also, the jury was instructed to consider only the
evidence presented, and that the arguments made by
the attorneys were not evidence. Thus, I believe that
the Chief Justice has established, at best, the possibility
of error; however, it has not been shown that claimed
error affected the outcome of the case. More fundamen-
tally, defendant must make this showing rather than
rely on the Chief Justice to make it on an issue not
preserved below and not argued before this Court.
In conclusion, the prosecutor presented sufficient
evidence to convict defendant of distribution of child
sexually abusive material under MCL 750.145c(3).
While I agree that an intent requirement is properly
imputed to the “distributes or promotes” element of the
statute, the prosecution put forward sufficient evidence
to sustain defendant’s conviction. Defendant intention-
ally delivered the computer to his employer, knowing
that the computer contained child sexually abusive
material at the time of its return. The majority errs in
imputing a heightened requirement that defendant
intend his recipient to “discover or view” the material.
Because this requirement is neither constitutionally
nor statutorily required, I dissent from its adoption. I
would reverse the decision of the Court of Appeals and
reinstate defendant’s conviction.
W
EAVER
and Y
OUNG,
JJ., concurred with C
ORRIGAN
,J.
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ICH
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ORRIGAN
,J.
OFFICE PLANNING GROUP, INC v BARAGA-
HOUGHTON-KEWEENAW CHILD DEVELOPMENT BOARD
Docket No. 125448. Argued November 10, 2004 (Calendar No. 6). Decided
June 8, 2005.
Office Planning Group, Inc., brought an action in the Houghton
Circuit Court against the Baraga-Houghton-Keweenaw Child De-
velopment Board, a private, nonprofit organization that runs
federal Head Start programs, seeking disclosure of bids submitted
to the defendant by vendors of office supplies and furnishings. The
plaintiff, which did not submit the winning bid, sought such
disclosure under 42 USC 9839(a), a provision of the Head Start Act
that allows “reasonable public access” to information. The court,
Garfield W. Hood, J., granted summary disposition in favor of the
plaintiff. The Court of Appeals, M
ETER
,P.J., and S
AAD
and
S
CHUETTE
, JJ., affirmed, holding that a private cause of action could
be inferred under § 9839(a) and that the trial court did not err in
finding that the defendant had not complied with the requirement
of reasonable public access under § 9839(a). 259 Mich App 279
(2003). The Supreme Court granted the defendant’s application
for leave to appeal. 470 Mich 888 (2004).
In an opinion by Justice Y
OUNG
, joined by Chief Justice T
AYLOR
,
and Justices C
ORRIGAN
and M
ARKMAN
, the Supreme Court held:
The Head Start Act does not provide for a private cause of
action to enforce the disclosure requirement of § 9839(a). The
plaintiff failed to state a cognizable claim. The judgment of the
Court of Appeals must be reversed and a judgment in favor of the
defendant must be entered.
1. The circuit court and the Court of Appeals have properly
exercised jurisdiction over the plaintiff’s claim under § 9839(a). In
determining whether a state court has jurisdiction over a federal-
law claim, the inquiry is whether Congress intended to grant
federal courts exclusive jurisdiction over such a dispute and, if not,
whether state law allows our courts to exercise subject-matter
jurisdiction over the action. Congress has done nothing in the
exercise of its powers under the Supremacy Clause, US Const, art
VI, cl 2, to affirmatively divest state courts of their presumptively
concurrent jurisdiction over claims brought under the Head Start
2005] O
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Act. The courts of Michigan have subject-matter jurisdiction over
this dispute because, under Const 1963, art 6, § 13, the circuit
courts of this state have original jurisdiction in all matters not
prohibited by law.
2. Private rights of action to enforce federal law must be
created by Congress. Congress did not create a private cause of
action to enforce § 9839(a). The Head Start Act does not expressly
provide for such a private cause of action. The act does not
demonstrate an implicit intent to provide for such an action and,
instead, indicates that the sole remedy for a violation of § 9839(a)
is an enforcement proceeding by the secretary of the United States
Department of Health and Human Services and the possible
termination of Head Start agency status.
Justice W
EAVER
, concurring in part and dissenting in part,
concurred in the majority opinion to the extent that it holds that
the state courts have concurrent jurisdiction in this matter. She
dissents, however, from the majority holding that 42 USC 9839(a)
of the federal Head Start Act does not permit the plaintiff to seek
disclosure of information relevant to the defendant’s bidding
decision. She believes that the majority errs in suggesting that
Alexander v Sandoval, 532 US 275 (2001), appears to have
abandoned altogether the inquiry stated in Cort v Ash, 422 US 66
(1975), in favor of a completely textual analysis in determining
whether a private remedy exists under a particular statute.
Reversed.
Justice K
ELLY
, joined by Justice C
AVANAGH
, dissenting, stated
that none of the theories that the defendant relies on to challenge
the jurisdiction of the Supreme Court applies here. In addition,
although she agrees with the majority that our state courts have
jurisdiction over the plaintiff’s claim under the Head Start Act, 42
USC 9831 et seq., she disagrees with the conclusion that the act
does not provide a private cause of action. The four-part test
articulated in Cort v Ash is used to determine whether a private
cause of action was intended. The majority errs in concluding that
the Cort factors were abandoned in Alexander v Sandoval.42USC
9839(a) specifies the congressional goal of maintaining open ac-
countability in the use of public funds and effectuates this goal by
providing a right of public access to books and records. It is
appropriate to apply all the Cort factors in this matter because the
language of the statute does not contradict the existence of a
private cause of action. The first factor, whether the plaintiff is a
member of the class for whose benefit Congress enacted the
statute, indicates that the plaintiff, a member of the public, is
within the appropriate class. The second factor, whether there is
480 472 M
ICH
479 [June
any indication that Congress intended to create or to deny a private
right of action, is answered because 42 USC 9839(a) indicates a
specific intent to create such an action. The third factor, whether
inferring the right of action is consistent with the underlying
scheme of the legislation, is properly answered in the affirmative.
The fourth factor, whether the cause of action is one traditionally
relegated to state law so that it would be inappropriate to base the
determination solely on federal law, is properly answered in the
negative. Therefore, the Cort factors point to the need to recognize
a private right of action under 42 USC 9839(a). After it is deter-
mined that Congress intended a private right of action, courts must
presume the availability of all appropriate remedies unless Congress
has expressly indicated otherwise. The remedy sought in this
matter was appropriate and consistent with 42 USC 9839(a). The
trial court properly granted the remedy requested. The judgment of
the Court of Appeals should be affirmed.
1. A
CTIONS —
H
EAD
S
TART
A
CT —
C
ONCURRENT
J
URISDICTION
.
The courts of Michigan have concurrent jurisdiction over actions
brought under the Head Start Act because Congress has done
nothing to affirmatively divest state courts of their presumptively
concurrent jurisdiction over such actions and because, under the
Michigan Constitution, the circuit courts of this state have original
jurisdiction in all matters not prohibited by law. (Const 1963, art 6,
§ 13; 42 USC 9831 et seq.).
2. A
CTIONS —
H
EAD
S
TART
A
CT —
D
ISCLOSURE
R
EQUIREMENTS —
E
NFORCEMENT
A
CTIONS
.
There is no private cause of action to enforce the disclosure require-
ments of § 9839(a) of the Head Start Act, which provides for
“reasonable public access” to information (42 USC 9831 et seq.).
Tercha & Daavettila, PLLC (by Robert T. Daavettila),
for the plaintiff.
Johnson, Rosati, LaBarge, Aseltyne & Field, P.C. (by
Marcia L. Howe), for the defendant.
Y
OUNG,
J. Plaintiff is a disappointed bidder that seeks
disclosure from defendant of bid documents under 42
USC 9839(a), a provision of the federal Head Start Act
1
1
42 USC 9831 et seq.
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that requires Head Start agencies to provide for “rea-
sonable public access” to information. Defendant Head
Start agency contends that the act does not create a
private cause of action to enforce its provisions. We hold
that the Head Start Act does not contemplate a private
cause of action seeking disclosure of the contested bid
documents under § 9839(a). Accordingly, we reverse the
judgment of the Court of Appeals and enter judgment in
favor of defendant.
I. FACTS AND PROCEDURAL HISTORY
Defendant, Baraga-Houghton-Keweenaw Child De-
velopment Board, Inc., is a private, nonprofit organiza-
tion that is designated as a Head Start
2
agency under 42
USC 9836(a).
3
Defendant operates Head Start programs
in Baraga, Houghton, and Keweenaw counties. In Janu-
ary 2001, defendant solicited bids for office supplies and
furniture. Plaintiff, a private, for-profit corporation,
submitted a bid. Defendant conducted an open meeting
at which its building committee reviewed the bids and
made a recommendation to its board of directors. De-
fendant accepted the lowest bid at the open meeting.
Rodney Liimatainen, defendant’s executive director,
2
See section III(A) of this opinion.
3
42 USC 9836(a) provides:
The Secretary [of Health and Human Services] is authorized to
designate as a Head Start agency any local public or private
nonprofit or for-profit agency, within a community, which (1) has
the power and authority to carry out the purposes of this subchap-
ter [42 USC 9831 et seq.] and perform the functions set forth in
section 642 [42 USC 9837] within a community; and (2) is
determined by the Secretary (in consultation with the chief
executive officer of the State involved, if such State expends
non-Federal funds to carry out Head Start programs) to be capable
of planning, conducting, administering, and evaluating, either
directly or by other arrangements, a Head Start program.
482 472 M
ICH
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notified plaintiff’s branch manager, Jack Hamm, that
plaintiff’s bid had exceeded the lowest bid by $10,000.
Hamm, suspicious that the lower bidders had of-
fered lesser-quality merchandise, requested copies of
all the bids submitted. Liimatainen informed Hamm
that the details of the bids were unavailable for
inspection by the public because the other bidders did
not want the information disseminated. Liimatainen
acknowledged, however, that there might be small
discrepancies in quality, manufacturer, and type of
product among the bids submitted. In an attempt to
compel defendant to disclose copies of the bids, Hamm
then submitted written requests to defendant under
the Michigan Freedom of Information Act (FOIA).
4
Defendant refused the requests on the basis that it was
a private corporation that was not subject to the FOIA.
Plaintiff also requested copies of the submitted bids from
the Department of Health and Human Services (HHS),
the federal agency responsible for administering the
Head Start Act.
In April 2001, plaintiff filed an action under the
FOIA
5
demanding a complete copy of each bid. Plaintiff
later filed an amended complaint alleging that it was
additionally entitled to disclosure of the bid information
under unspecified “federal legislation which requires
disclosure of information by parties supplying service
under the so-called Head Start Program.” In subse-
quent motion papers, plaintiff indicated that the federal
legislation on which it relied was 42 USC 9839(a), which
provides, in relevant part:
4
MCL 15.231 et seq.
5
Although the trial court treated plaintiff’s complaint as if it contained
a claim under the federal Freedom of Information Act, 5 USC 551 et seq.,
the parties agree that plaintiff’s claim was based solely on the Michigan
FOIA.
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Each [Head Start] agency shall also provide for reason-
able public access to information, including public hearings
at the request of appropriate community groups and rea-
sonable public access to books and records of the agency or
other agencies engaged in program activities or operations
involving the use of authority or funds for which it is
responsible.
After the commencement of the litigation, various
HHS officials issued memoranda indicating that defen-
dant was not required under the FOIA or the Head
Start Act to provide plaintiff with access to the bid
information. In a letter to defendant, a program officer
in the Chicago regional office of the HHS advised
defendant that Head Start grantees are not subject to
the FOIA provisions. The program officer further
noted that, under § 9839(a) and its corresponding
HHS regulation, 45 CFR 1301.30,
6
defendant was not
required to disclose specific information regarding the
selection of a supplier; rather, it was required only to
disclose general information such as copies of its writ-
ten procurement procedures.
Similarly, in a letter to plaintiff’s counsel, the direc-
tor of the HHS Office of Public Affairs, FOI/Privacy
Acts Division, stated that the FOIA did not apply to
defendant; however, the director noted that defendant
had provided plaintiff with a copy of the policy it
followed in conducting its procurement activities and
with background documents addressing its source of
funding.
6
45 CFR 1301.30 provides:
Head Start agencies and delegate agencies shall conduct the
Head Start program in an effective and efficient manner, free of
political bias or family favoritism. Each agency shall also provide
reasonable public access to information and to the agency’s records
pertaining to the Head Start program. [Emphasis supplied.]
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The director also wrote a letter advising defense
counsel that defendant was not subject to the require-
ments of the federal Freedom of Information Act.
7
The
director further advised counsel that defendant was
bound by any provisions incorporated into the grant
language regarding its obligations to make information
concerning its activities available to the public, but that
defendant had already complied with those require-
ments.
Finally, in a letter written to Congressman Bart Stu-
pak, who had apparently come to plaintiff’s aid in seek-
ing the bid documents, the director of the HHS Office of
Family and Child Development stated that defendant
had reasonably complied with the requirements of
§ 9839 and 45 CFR 1301.30 by providing plaintiff with a
copy of its procurement procedures, and that defendant
was under no further obligation to provide documents
with specific commercial information it received through
the competitive bid process.
Citing these HHS memoranda, defendant moved for
summary disposition, arguing that it was not subject
to the Michigan FOIA or the federal FOIA and that
defendant had exceeded any obligation it had to supply
plaintiff with information under 42 USC 9839(a).
The trial court granted defendant’s motion for sum-
mary disposition to the extent that plaintiff sought relief
under the Michigan FOIA and the federal FOIA.
8
The
court, however, sua sponte granted summary disposi-
tion in favor of plaintiff under MCR 2.116(I)(2) on the
ground that the requested information was subject to
disclosure under § 9839(a). The court, observing that
§ 9839(a) required that a Head Start agency grant
7
5 USC 551 et seq.
8
See note 5. Plaintiff’s FOIA claims are not at issue in this appeal.
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“reasonable public access” to its books and records,
opined that
[a] demand that information be provided outside of work-
ing hours would not be reasonable. A demand that an
agency exhaustively search for something that the request-
ing party cannot properly identify would not be reasonable.
As recognized by the Michigan Freedom of Information
Act, it would likely not be reasonable to expect an agency to
create a record, such as a compilation or summary, when no
such record exists. And it may well not be reasonable to
demand that an employee’s personnel file or disciplinary
record be disclosed.
In the present situation, a denial by the Plaintiff [sic] of
a written request to review specified, existing and readily
accessible written bids is certainly not compliant with a
requirement of providing reasonable public access. That
would be true regardless of who made the request, but the
case is even more compelling when the requesting party
has a genuine, identifiable reason for the information
sought, as did the Plaintiff.
In summary, Defendant’s denial of Plaintiff’s request
to review and obtain copies of the bids in question was in
violation of the Federal requirement that Plaintiff [sic]
provide for reasonable public access to information, in-
cluding reasonable public access to books and records of
the agency, involving the use of funds for which the
Plaintiff [sic] is responsible.
The Court of Appeals affirmed.
9
Noting that the state
courts shared concurrent jurisdiction to decide a case
involving the Head Start Act because the act did not
provide for exclusive federal jurisdiction,
10
the panel
rejected the reasoning of federal case law holding that
the Head Start Act does not provide a private cause of
9
Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev
Bd, 259 Mich App 279; 674 NW2d 686 (2003).
10
Gulf Offshore Co v Mobil Oil Corp, 453 US 473, 478; 101 S Ct 2870;
69 L Ed 2d 784 (1981).
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action.
11
The panel, citing Long v Chelsea Community
Hosp, 219 Mich App 578; 557 NW2d 157 (1996), and
Forster v Delton School Dist, 176 Mich App 582, 585;
440 NW2d 421 (1989), held that a private cause of
action could be inferred under § 9839(a) because the
statute did not provide adequate means to enforce its
provisions:
The statute in question, 42 USC 9839(a), requires Head
Start agencies to provide reasonable public access to their
books and records, but it does not provide any means of
enforcing this specific provision. Although the Head Start
Act requires agencies to open their books and records to the
department secretary or the United States Comptroller
General for audit and examination, 42 USC 9842, Congress
specifically provided for public access to the books and
records, not simply to the audits prepared by these other
entities. Therefore, we conclude an implied private cause of
action exists.
[12]
The panel concluded that the trial court did not err in
granting summary disposition for plaintiff because de-
fendant had not complied with the “reasonable public
access” requirement of § 9839(a). The panel, noting
that defendant had failed to suggest why it would be
unreasonable to disclose the requested information,
held that because the information was readily available
and could be produced on short notice, it was covered by
the statutory directive to provide “reasonable public
access.”
13
The panel rejected defendant’s contention
that the bidders did not have notice that the bids would
be disclosed, stating that the statute itself provided that
notice; the panel also rejected defendant’s argument
11
See Johnson v Quin Rivers Agency for Community Action, Inc, 128 F
Supp 2d 332, 336 (ED Va, 2001); Hodder v Schoharie Co Child Dev
Council, Inc, 1995 US Dist LEXIS 19049 (ND NY, 1995).
12
259 Mich App at 289-290 (emphasis deleted).
13
259 Mich App at 290-292.
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that public policy dictated against interpreting the
statute to require disclosure of the bids.
14
Finally, the
panel held that it was not required to defer to the
interpretation of § 9839(a) set forth in the letters writ-
ten by HHS officials, opining that only a ruling from the
“upper echelon” of the HHS would be entitled to
deference and that, in any event, the officials’ interpre-
tation was clearly wrong.
15
We granted defendant’s application for leave to ap-
peal.
16
Because we conclude that § 9839(a) does not
provide for a private cause of action, we reverse the
judgment of the Court of Appeals and enter judgment in
favor of defendant.
II. STANDARD OF REVIEW
This case presents issues of statutory construction
and other questions of law. Such questions are subject
to review de novo by this Court.
17
Similarly, we review a
trial court’s grant of summary disposition de novo.
18
III. ANALYSIS
A. INTRODUCTION
The Head Start Act was enacted for the purpose of
“promot[ing] school readiness by enhancing the social
and cognitive development of low-income children
through the provision, to low-income children and their
14
259 Mich App at 292-295.
15
259 Mich App at 297.
16
470 Mich 888 (2004).
17
Preserve the Dunes, Inc v Dep’t of Environmental Quality, 471 Mich
508, 513; 684 NW2d 847 (2004); Mack v Detroit, 467 Mich 186, 193; 649
NW2d 47 (2002); Grand Traverse Co v Michigan, 450 Mich 457, 463-464;
538 NW2d 1 (1995).
18
Mack, supra at 193.
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families, of health, educational, nutritional, social, and
other services that are determined, based on family
needs assessments, to be necessary.”
19
The secretary of
the HHS is authorized under 42 USC 9836(a) to desig-
nate as a Head Start agency “any local public or private
nonprofit or for-profit agency....” The act further
authorizes the secretary to provide financial assistance
or grants to Head Start agencies for the operation of
Head Start programs.
20
Under 42 USC 9836a, the secretary is directed to
establish by regulation standards applicable to Head
Start agencies, including performance standards, ad-
ministrative and financial management standards, and
standards relating to the conditions and location of
agency facilities. The secretary has promulgated regu-
lations implementing these statutory directives.
21
The
secretary is directed under 42 USC 9836a(c) and (d) to
monitor Head Start agencies for compliance with statu-
tory and regulatory standards and to take corrective
action if necessary. If an agency does not comply with
such standards, the secretary may initiate proceedings
to terminate the designation of the agency unless the
agency corrects the deficiency.
22
At issue in this case is § 9839(a) of the act, which
provides as follows:
Each Head Start agency shall observe standards of
organization, management, and administration which will
assure, so far as reasonably possible, that all program
activities are conducted in a manner consistent with the
19
42 USC 9831; see also Action for Boston Community Dev, Inc v
Shalala, 136 F3d 29, 30 (CA 1, 1998).
20
42 USC 9833 to 9835; Community Action of Laramie Co, Inc v Bowen,
866 F2d 347, 348 (CA 10, 1989).
21
See 45 CFR 1304.1.
22
42 USC 9836a(d)(1)(C).
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purposes of this subchapter [42 USC 9831 et seq.] and the
objective of providing assistance effectively, efficiently, and
free of any taint of partisan political bias or personal or
family favoritism. Each such agency shall establish or
adopt rules to carry out this section, which shall include
rules to assure full staff accountability in matters governed
by law, regulations, or agency policy. Each agency shall also
provide for reasonable public access to information, includ-
ing public hearings at the request of appropriate community
groups and reasonable public access to books and records of
the agency or other agencies engaged in program activities
or operations involving the use of authority or funds for
which it is responsible. Each such agency shall adopt for
itself and other agencies using funds or exercising author-
ity for which it is responsible, rules designed to (1) estab-
lish specific standards governing salaries, salary increases,
travel and per diem allowances, and other employee ben-
efits; (2) assure that only persons capable of discharging
their duties with competence and integrity are employed
and that employees are promoted or advanced under im-
partial procedures calculated to improve agency perfor-
mance and effectiveness; (3) guard against personal or
financial conflicts of interest; and (4) define employee
duties in an appropriate manner which will in any case
preclude employees from participating, in connection with
the performance of their duties, in any form of picketing,
protest, or other direct action which is in violation of law.
[Emphasis supplied.]
Similarly, Head Start regulation 45 CFR 1301.30 pro-
vides that “[e]ach agency shall also provide reasonable
public access to information and to the agency’s records
pertaining to the Head Start program.”
The lower courts concluded that defendant was re-
quired under the “reasonable public access” provision
of § 9839(a) to disclose copies of all bids it received in
connection with its January 2001 solicitation of bids for
office supplies and furniture. In considering the propri-
ety of the lower courts’ rulings, we must first determine
490 472 M
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whether the trial court properly exercised jurisdiction
over plaintiff’s claim under § 9839(a). Next, we must
examine whether § 9839(a) allows for plaintiff’s pri-
vate cause of action to enforce the disclosure provision.
Although we conclude that the state courts have
jurisdiction over this action, we hold that § 9839(a)
does not provide for a private cause of action.
B. CONCURRENT JURISDICTION
Defendant first argues that the state courts lack
jurisdiction over plaintiff’s claim under the federal
Head Start Act.
23
We disagree and hold that the state
courts have concurrent jurisdiction with the federal
23
We note initially that defendant, in support of its assertion that
subject-matter jurisdiction is lacking, presents a hodgepodge, “shotgun
approach” argument that conflates the concepts of exhaustion of rem-
edies, primary jurisdiction, “Chevron doctrine” deference, and existence
of a private cause of action under the federal statute at issue, making it
rather difficult to discern what precisely it is that defendant is arguing.
These concepts are not, in fact, jurisdictional in nature. See, e.g.,
Northwest Airlines, Inc v Kent Co, Michigan, 510 US 355, 365; 114 S Ct
855; 127 L Ed 2d 183 (1994) (“The question whether a federal statute
creates a claim for relief is not jurisdictional.”).
In light of our determination that the Head Start Act, in the first
instance, does not provide for a private cause of action to enforce the
public access requirement of § 9839(a), it is unnecessary to address
defendant’s assertion that primary jurisdiction over this cause of action
lies with the HHS, see Travelers Ins Co v Detroit Edison Co, 465 Mich
185; 631 NW2d 733 (2001), and its related argument that plaintiff failed
to exhaust administrative remedies before filing this state-court action.
However, we note that this case presents a straightforward issue of
statutory construction involving the meaning of the simple phrase
“reasonable public access.” The interpretation of this particular statu-
tory language does not require knowledge of sophisticated or technical
terms or the exercise of expert judgment or discretion. Because the
“reasonable public access” provision presents a matter that the judiciary
is particularly competent to address, rather than a matter within the
“specialized and expert knowledge” of the HHS, see id. at 198, primary
jurisdiction does not lie with that agency. Moreover, there are no
“prescribed administrative remedies” that plaintiff has failed to exhaust
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courts to entertain plaintiff’s action seeking relief un-
der § 9839(a).
before seeking relief under § 9839(a) from the courts. McCarthy v
Madigan, 503 US 140, 144-145; 112 S Ct 1081; 117 L Ed 2d 291 (1992).
Defendant’s somewhat cryptic assertion that the state courts are
required to give deference to the HHS’s interpretation of § 9839(a)
warrants additional comment. Citing the “Chevron doctrine,” see
Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US
837; 104 S Ct 2778; 81 L Ed 2d 694 (1984), defendant argues that the
state courts are required to give deference to the determinations of
HHS officials regarding the disclosure required under the act and that
the state courts therefore lack jurisdiction over this action. Again,
defendant is conflating two discrete doctrines. The concept of Chevron
deference is not jurisdictional; rather, it is a doctrine that is in the
nature of a standard of review, applied by the judiciary in reviewing an
agency’s reasonable construction of an ambiguous statute, which rec-
ognizes that any necessary policy determinations in interpreting a
federal statute are more properly left to the agency responsible for
administering the particular statute. See Yellow Transportation, Inc v
Michigan, 537 US 36, 47-48; 123 S Ct 371; 154 L Ed 2d 377 (2002);
United States v Mead Corp, 533 US 218, 227-228; 121 S Ct 2164; 150 L
Ed 2d 292 (2001), quoting Chevron, supra at 844 (“ ‘considerable weight
should be accorded to an executive department’s construction of a
statutory scheme it is entrusted to administer’ ”).
Again, because we have determined that there is no private cause of
action to enforce the disclosure requirement of the Head Start Act, we
need not address whether the state courts are required, under Chevron
and Mead, supra, to accord deference to the letters authored by these
HHS officials. However, we note in passing that these letters presumably
lack the “force of law” that is generally required for application of
Chevron-type deference. See, e.g., Shalala v Guernsey Mem Hosp, 514 US
87, 99; 115 S Ct 1232; 131 L Ed 2d 106 (1995) (noting that administrative
interpretive rules, which do not require notice and comment, “do not
have the force and effect of law and are not accorded that weight in the
adjudicatory process”); Northwest Airlines, supra at 366-367 (noting that
a “reasoned decision” of the Secretary of Transportation would be
entitled to Chevron-type deference in a dispute over the meaning of a
provision of the Anti-Head Tax Act, 49 USC 1513); Human Development
Corp of Metropolitan St Louis v United States Dep’t of Health & Human
Services, 312 F3d 373, 379 (CA 8, 2002) (applying Chevron deference to a
final decision of the HHS’s Departmental Appeals Board interpreting an
HHS regulation); see also Mead, supra at 236 n 17; Christensen v Harris
Co, 529 US 576, 586-587; 120 S Ct 1655; 146 L Ed 2d 621 (2000).
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It has long been established that, so long as Con-
gress has not provided for exclusive federal-court
jurisdiction, state courts may exercise subject-matter
jurisdiction over federal-law claims “ ‘whenever, by
their own constitution, they are competent to take
it.’ ”
24
State courts possess sovereignty concurrent with
that of the federal government, “subject only to limita-
tions imposed by the Supremacy Clause.”
25
Thus, state
courts are presumptively competent to assume jurisdic-
tion over a cause of action arising under federal law.
26
If
concurrent jurisdiction otherwise exists, subject-matter
jurisdiction over a federal-law claim is governed by state
law.
27
In determining whether our state courts enjoy con-
current jurisdiction over a claim brought under federal
law, it is necessary to determine whether Congress
intended to limit jurisdiction to the federal courts.
“In considering the propriety of state-court jurisdiction
over any particular federal claim, the Court begins with the
presumption that state courts enjoy concurrent jurisdic-
tion. Congress, however, may confine jurisdiction to the
federal courts either explicitly or implicitly. Thus, the
presumption of concurrent jurisdiction can be rebutted by
an explicit statutory directive, by unmistakable implication
24
Tafflin v Levitt, 493 US 455, 459; 110 S Ct 792; 107 L Ed 2d 887
(1990), quoting Claflin v Houseman, 93 US 130, 136; 23 L Ed 833
(1876).
25
Tafflin, supra at 458. See US Const, art VI, cl 2 (“This Constitution,
and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.”).
26
Tafflin, supra at 459; Gulf Offshore Co, supra at 478; Charles Dowd
Box Co, Inc v Courtney, 368 US 502, 507-508; 82 S Ct 519; 7 L Ed 2d 483
(1962).
27
Gulf Offshore Co, supra at 478.
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from legislative history, or by a clear incompatibility be-
tween state-court jurisdiction and federal interests.”
[28]
Defendant does not present a coherent argument
that the courts of this state lack jurisdiction over the
parties’ dispute concerning the disclosure of documents
under § 9839(a). Rather, defendant simply contends
that the “expansive regulatory scheme” of the Head
Start Act “evidences Congressional intent that the HHS
exercise its sole discretion over its administration of
local Head-Start agencies through its regulations.” De-
fendant has conflated the vesting of discretion in fed-
eral agencies with the vesting of jurisdiction in the
federal courts: That a particular agency has discretion
to administer a federal statute and to implement regu-
lations for the enforcement of the statute does not
address whether state courts have concurrent jurisdic-
tion over a dispute arising under that statute. Instead,
our inquiry is limited to whether Congress intended to
limit to federal courts exclusive jurisdiction over such a
dispute and, if not, whether state law allows our courts
to exercise subject-matter jurisdiction over the action.
Defendant concedes that nothing in the Head Start
Act explicitly confines jurisdiction to the federal courts,
and defendant does not point to any statutory indica-
tion that Congress intended that jurisdiction over a
dispute under the Head Start Act should lie solely in the
28
Tafflin, supra at 459-460, quoting Gulf Offshore Co, supra at 478
(citations omitted); see also Peden v Detroit, 470 Mich 195, 201 n 4; 680
NW2d 857 (2004). Although we, of course, must apply these federal-law
principles in determining whether concurrent jurisdiction exists under
the federal statute, we would be remiss if we failed to note that the use
of legislative history in the search for legislative intent “ ‘is a perilous
venture... [that is] doubly fraught with danger in Michigan which,
unlike Congress, has failed to create an authoritative legislative record.’ ”
Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587 n 7; 624
NW2d 180 (2001), quoting People v Tolbert, 216 Mich App 353, 360 n 5;
549 NW2d 61 (1996).
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federal courts. We have been unable to locate anything
in the legislative history of the act demonstrating an
intent to grant exclusive federal-court jurisdiction, and
defendant has certainly failed to bring any such infor-
mation to our attention. Moreover, there is no “clear
incompatibility” between state-court jurisdiction and
federal interests with respect to application of the Head
Start Act, particularly with respect to a straightforward
question of statutory construction such as the one
presented in this case. Indeed, as noted in Gulf Offshore
Co v Mobil Oil Corp, 453 US 473, 478 n 4; 101 S Ct 2870;
69 L Ed 2d 784 (1981), “[p]ermitting state courts to
entertain federal causes of action facilitates the enforce-
ment of federal rights.”
Congress has done nothing in the exercise of its
powers under the Supremacy Clause to “affirmatively
divest state courts of their presumptively concurrent
jurisdiction” over claims brought under the Head Start
Act.
29
Additionally, it is clear that the courts of this state
have subject-matter jurisdiction over the dispute at
issue, because our Constitution provides that the circuit
courts of this state have original jurisdiction “in all
matters not prohibited by law ....”
30
Accordingly, we
hold that the courts of this state have properly exercised
concurrent jurisdiction over plaintiff’s § 9839(a) claim.
C. PRIVATE CAUSE OF ACTION TO ENFORCE § 9839(a)
Defendant next contends that plaintiff’s claim fails
because § 9839(a) does not provide for a private cause of
action to enforce the public access requirement. We
agree.
29
Yellow Freight Sys, Inc v Donnelly, 494 US 820, 823; 110 S Ct 1566;
108 L Ed 2d 834 (1990).
30
Const 1963, art 6, § 13.
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1. WHETHER A CAUSE OF ACTION EXISTS IS SOLELY
A MATTER OF STATUTORY CONSTRUCTION
“ ‘[T]he fact that a federal statute has been violated
and some person harmed does not automatically give
rise to a private cause of action in favor of that
person.’ ”
31
Rather, “[l]ike substantive federal law itself,
private rights of action to enforce federal law must be
created by Congress.”
32
Thus, in determining whether
plaintiff may bring a private cause of action to enforce
the public access requirement of § 9839(a), we must
determine whether Congress intended to create such a
cause of action.
33
Because the Head Start Act does not
evidence an intent to create a private remedy for an
alleged violation of § 9839(a), plaintiff’s action must be
dismissed.
Although the United States Supreme Court in the
last century embraced a short-lived willingness to cre-
ate remedies to enforce private rights,
34
the Court
31
Touche Ross & Co v Redington, 442 US 560, 568; 99 S Ct 2479; 61 L
Ed 2d 82 (1979), quoting Cannon v Univ of Chicago, 441 US 677, 688; 99
S Ct 1946; 60 L Ed 2d 560 (1979).
32
Alexander v Sandoval, 532 US 275, 286; 121 S Ct 1511; 149 L Ed 2d
517 (2001); see also Touche Ross & Co, supra at 578.
33
Alexander, supra at 286-287.
34
See, e.g., Bivens v Six Unknown Named Agents of Fed Bureau of
Narcotics, 403 US 388; 91 S Ct 1999; 29 L Ed 2d 619 (1971) (inferring a
private cause of action for damages to enforce the Fourth Amendment
guarantee against unreasonable searches and seizures); JICaseCov
Borak, 377 US 426, 433; 84 S Ct 1555; 12 L Ed 2d 423 (1964) (holding
that “it is the duty of the courts to be alert to provide such remedies as
are necessary to make effective the congressional purpose” of a federal
statute). See also, generally, Correctional Services Corp v Malesko, 534
US 61, 75; 122 S Ct 515; 151 L Ed 2d 456 (2001) (Scalia, J., concurring)
(noting that “Bivens is a relic of the heady days in which this Court
assumed common-law powers to create causes of action—decreeing them
to be ‘implied’ by the mere existence of a statutory or constitutional
prohibition”); Note, Section 1983 and implied rights of action: Rights,
remedies, and realism, 90 Mich L R 1062, 1071-1083 (1992) (exploring
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“abandoned” that approach to statutory remedies in
Cort v Ash
35
and “[has] not returned to it since.”
36
In
Cort, the Court set forth a test for determining whether
a private remedy is implicit in a statute that does not
expressly provide such a remedy:
First, is the plaintiff “one of the class for whose
especial benefit the statute was enacted,”...that is, does
the statute create a federal right in favor of the plaintiff?
Second, is there any indication of legislative intent, ex-
plicit or implicit, either to create such a remedy or to deny
one?...Third, is it consistent with the underlying pur-
poses of the legislative scheme to imply such a remedy for
the plaintiff? . . . And finally, is the cause of action one
traditionally relegated to state law, in an area basically
the concern of the States, so that it would be inappropri-
ate to infer a cause of action based solely on federal
law?
[37]
Post-Cort, the Court has become increasingly reluc-
tant to imply a private cause of action, preferring to
focus exclusively on the second Cort element, which
requires indicia of congressional intent to create a cause
of action. For example, as early as Cannon v Univ of
Chicago,
38
although the Court applied each of the Cort
factors, it characterized the determination whether a
private remedy existed to enforce a statutory right as a
matter of “statutory construction.”
39
In Touche Ross &
the evolution of the United States Supreme Court’s implied right of
action jurisprudence and its subsequent retreat).
35
422 US 66; 95 S Ct 2080; 45 L Ed 2d 26 (1975).
36
Alexander, supra at 287.
37
Cort, supra at 78 (emphasis deleted).
38
441 US 677, 688; 99 S Ct 1946; 60 L Ed 2d 560 (1979).
39
See also Merrell Dow Pharmaceuticals Inc v Thompson, 478 US 804,
812; 106 S Ct 3229; 92 L Ed 2d 650 (1986), noting that it would “flout
congressional intent to provide a private federal remedy” for an alleged
violation of the federal Food, Drug, and Cosmetic Act, 21 USC 301 et seq.:
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Co,
40
the Court declined to even address the remaining
Cort factors where it was clear that Congress did not
intend to create a private cause of action to enforce
§ 17(a) of the Securities Exchange Act of 1934:
41
It is true that in Cort v. Ash, the Court set forth four
factors that it considered “relevant” in determining
whether a private remedy is implicit in a statute not
expressly providing one. But the Court did not decide that
each of these factors is entitled to equal weight. The central
inquiry remains whether Congress intended to create,
either expressly or by implication, a private cause of action.
Indeed, the first three factors discussed in Cort—the lan-
guage and focus of the statute, its legislative history, and its
purpose, see 422 U.S. at 78—are ones traditionally relied
upon in determining legislative intent. Here, the statute by
its terms grants no private rights to any identifiable class
and proscribes no conduct as unlawful. And the parties as
See, e.g., Daily Income Fund, Inc. v. Fox, 464 US 523, 535-536
(1984) (“In evaluating such a claim, our focus must be on the
intent of Congress when it enacted the statute in question.”);
Middlesex County Sewerage Authority v. National Sea Clammers
Assn., 453 U.S., at 13 (“The key to the inquiry is the intent of the
Legislature.”); Texas Industries, Inc. v. Radcliff Materials, Inc.,
451 U.S. 630, 639 (1981) (“Our focus, as it is in any case involving
the implication of a right of action, is on the intent of Congress.”);
California v. Sierra Club, 451 U.S. at 293 (“[The] ultimate issue is
whether Congress intended to create a private right of action.”);
Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 91
(1981) (“The ultimate question in cases such as this is whether
Congress intended to create the private remedy.”); Transamerica
Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15 (1979) (“The
question whether a statute creates a cause of action, either
expressly or by implication, is basically a matter of statutory
construction.”); Touche Ross & Co. v. Redington, 442 U.S. 560, 568
(1979) (“The question of the existence of a statutory cause of
action is, of course, one of statutory construction.”). [Merrell,
supra at 812 n 9.]
40
Touche Ross & Co, supra at 575-576.
41
15 USC 78q(a).
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well as the Court of Appeals agree that the legislative
history of the 1934 Act simply does not speak to the issue
of private remedies under § 17 (a). At least in such a case as
this, the inquiry ends there: The question whether Con-
gress, either expressly or by implication, intended to create
a private right of action, has been definitely answered in
the negative.
Similarly, in California v Sierra Club,
42
the Court,
noting that “the focus of the inquiry is on whether
Congress intended to create a remedy,” concluded that
consideration of the first two Cort factors was disposi-
tive. Because there was no indication that Congress
intended to create a private remedy to enforce § 10 of
the Rivers and Harbors Appropriation Act of 1899,
43
the
Court held that it was unnecessary to inquire further
into the remaining factors, because “[t]hese factors are
only of relevance if the first two factors give indication
of congressional intent to create the remedy.”
44
In Alexander, the Court appears to have abandoned
the Cort inquiry altogether in favor of a completely
textual analysis in determining whether a private rem-
edy exists under a particular statute. Rather than
applying the Cort factors, the Alexander Court con-
cluded, solely on the basis of the text of 42 USC
2000d-1, that private individuals could not sue to en-
force disparate-impact regulations promulgated under
Title VI of the Civil Rights Act of 1964. The Court
42
451 US 287, 297; 101 S Ct 1775; 68 L Ed 2d 101 (1981).
43
33 USC 403.
44
Sierra Club, supra at 298.
This Court has also noted the paramount importance of legislative
intent in determining whether a private cause of action can be founded
on an alleged violation of a statute. See Gardner v Wood, 429 Mich 290,
302 n 6; 414 NW2d 706 (1987) (noting that Cort marked “the beginning
of a trend in the federal courts to reserve the creation of civil remedies
from penal violations only where to do so [was] clearly consistent with
affirmative legislative intent”).
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rejected the plaintiff’s argument that dispositive weight
could be accorded to context shorn of text, holding that
“legal context matters only to the extent it clarifies
text.”
45
The Alexander majority additionally rejected
the dissent’s claim that the position adopted
“ ‘blind[ed] itself to important evidence of congressional
intent,’ ” noting that the methodology employed in the
majority opinion was well established in earlier decisions
that explained “that the interpretive inquiry begins with
the text and structure of the statute...andends once it
has become clear that Congress did not provide a cause of
action.”
46
2. THE HEAD START ACT DOES NOT PROVIDE
FOR A PRIVATE CAUSE OF ACTION
With the aforementioned principles in mind, we
examine the text of the Head Start Act to determine
45
Alexander, supra at 288.
46
Id.at288n7.
Our dissenting colleagues assert that we have incorrectly characterized
Touche Ross & Co and Alexander as representing a departure from the
four-factor Cort test. Post at 514-515. Whether the United States Supreme
Court will, in the future, continue to apply the four-part Cort test is,
however, simply irrelevant where it is clear from the text of the statute at
issue that Congress did not intend to create a private enforcement action.
Indeed, this case is directly analogous to Touche Ross & Co and Alexander.
As the dissent points out, the provisions at issue in Touche Ross & Co and
Alexander neither conferred rights on individuals nor proscribed conduct
as unlawful. The same can certainly be said of 42 USC 9839(a). Similarly,
the dissent notes that the Alexander Court found it quite telling that the
statute at issue expressly empowered governmental agencies to enforce
regulations. The Head Start Act does precisely that, by directing the
secretary to establish regulations governing Head Start agencies and to
enforce those regulations, and, in 42 USC 9839(a), by requiring Head Start
agencies to conduct program activities in conformity with the Head Start
Act and to establish or adopt rules to carry out that duty.
We note, in passing, that Justice W
EAVER
’s separate dissent merely
echoes the longer dissent of Justice K
ELLY
. Accordingly, we respond to both
in kind.
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whether it provides for a private cause of action to
enforce § 9839(a).
To date, two federal district courts have considered
whether causes of action existed under different provi-
sions of the Head Start Act. Although our Court of
Appeals cited these cases, it rejected their analyses
without explanation.
In Hodder, supra, the United States District Court
for the Northern District of New York applied the Cort
factors and concluded that the plaintiffs, former em-
ployees of a Head Start agency, could not bring a cause
of action for wrongful discharge under the Head Start
Act:
Turning to the first [Cort] factor, plaintiffs are far-
removed from the class for whose special benefit Congress
enacted the Head Start Act. The purpose of this Act is to
authorize the appropriation of funds for Project Head
Start’s “effective delivery of comprehensive health, educa-
tional, nutritional, social and other services to economi-
cally disadvantaged children and their families.” 42 USC
§ 9831(a). Hence, the class for whose special benefit Con-
gress passed the Head Start Act is the class of economically
disadvantaged children and their families who need the
specified services, which do not under any reasonable
interpretation of the Act include employment services.
Indeed, a Head Start agency would likely violate the Act if
it employed the parent of [a] Head Start child. See 42 USC
§ 9839(a)(3). Plaintiffs’ assertion that “employees of Head
Start agencies...aremembers of a class which is specially
addressed are protected by the Act and regulations” is
legally unsupported and legally unsupportable.... Con-
gress plainly did not enact the Head Start Act in order to
benefit Head Start employees.
As to the second Cort factor, the Court has found no
indication that Congress intended the Act or its interpre-
tive regulations to create a private right of action for
employees who are terminated from Head Start agencies in
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a manner allegedly inconsistent with those rules. Plaintiffs
admit that the Act lacks any explicit indication that Con-
gress intended to create a cause of action for these employ-
ees, but argue that § 9849(b) of the Act “specifically ne-
gates any intent to deny such a cause of action.”...Section
9849(b) concerns the application of the Civil Rights Act to
any sexual discrimination that may occur in connection
with Head Start programs or activities. The last sentence
states that the section “shall not be construed as affecting
any other legal remedy that a person may have if such
person is...denied employment in connection with[] any
[Head Start] program, project, or activity....”
At best, this sentence reveals a congressional unwilling-
ness to interfere with any of the state and federal remedies
that may be available to people who are denied jobs at Head
Start agencies; it certainly does not reveal a congressional
intent to create a private right of action under the Head
Start Act for people who are fired from Head Start agen-
cies. As plaintiffs surely realize, if courts inferred from
Congress’ failure to prohibit a private cause of action the
congressional intent to create a private cause of action,
courts would read into almost every federal statute an
implied right of action. In the majority of instances, this
curious interpretive method would undermine congres-
sional intent rather than effectuate it. It also runs counter
to the Supreme Court’s demonstrated reluctance to infer
private causes of action from federal statutes....
Plaintiffs fare no better under the third Cort factor
because implying a private right of action from the Head
Start Act would do little or nothing to further the under-
lying purposes of the legislative scheme....
***
We now come to the fourth Cort factor. Plaintiffs cast
their claim as one “based on employee discharge in viola-
tion of federal policies....”...Forpurposes of determin-
ing the existence of subject matter jurisdiction, however,
the Court considers the true nature of plaintiffs’ action....
Although plaintiffs carefully avoid the phrase in their
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complaint, the essence of their claim is breach of an
employment contract. Actions of this kind are traditionally
relegated to state law. Thus the fourth Cort factor, along
with the first three, strongly support the conclusion that
the Head Start Act does not contain an implied private
right of action for people who are terminated from Head
Start agencies.
[47]
Similarly, in Johnson, supra, the plaintiff alleged that
the defendants had mismanaged a Head Start program
in violation of federal regulations. The District Court
for the Eastern District of Virginia held that Congress
did not intend to provide a private cause of action to
enforce the federal regulations:
In this case, the applicable statutory scheme is set
forth pursuant to the Head Start Act, 42 U.S.C. §§ 9831-
9852a. Under the scheme, the Secretary of the Depart-
ment of Health and Human Services is directed to “estab-
lish by regulation standards applicable to Head Start
agencies, programs, and projects under this subchapter,”
including “minimum levels of overall accomplishment
that a Head Start agency shall achieve.” 42 U.S.C.
§ 9836a(a)(1) & (2). The Secretary is also directed under
this section to monitor the performance of every Head
Start program and to take appropriate corrective action
when a program fails to meet the performance standards
established by the regulations. Specifically, the Act re-
quires a full review of each grantee at least once during
each three-year period, review of new grantees after the
completion of the first year, follow up reviews and return
visits to grantees that fail to meet the standards, and
“other reviews as appropriate.” 42 U.S.C. § 9836a(c). If
the Secretary determines, on the basis of such a review,
that a grantee fails to meet the standards described in
§ 9836a(a), the Secretary shall, inter alia, institute pro-
ceedings to terminate the Head Start grant unless the
agency corrects the deficiency. 42 U.S.C. § 9836a(d).
47
Hodder, supra at *11-*16 (citations omitted).
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All but three of the regulations cited in plaintiff’s
Second Amended Complaint were promulgated pursuant to
the Head Start Act. See 45 C.F.R. § 1304.1. There is no
provision in the Head Start Act, however, permitting a
private citizen to enforce its provisions. Based on the
alternative specific remedies mentioned above, Congress’
intent is clear. The remedy for substandard performance by
a Head Start program is an enforcement action by the
Secretary of the Department of Health and Human Ser-
vices, not by private litigants. For these reasons, the Court
dismisses with prejudice plaintiff’s claims alleging viola-
tions of statutory and regulatory provisions relating to the
Head Start Act, for failure to state a claim upon which
relief can be granted.
[48]
We find Hodder and Johnson to be persuasive and
similarly conclude, on the basis of the text and struc-
ture of the Head Start Act, that no private cause of
action exists to enforce § 9839(a).
The act, of course, does not expressly provide for a
private cause of action to enforce the disclosure require-
ment of § 9839(a). Thus, the question becomes whether
the text of the act demonstrates an implicit intent to
provide for a private cause of action.
Again, the stated purpose of the act is to promote
school readiness by providing services to low-income
children and their families. 42 USC 9831. The act does
not contemplate any benefit to private corporations
such as plaintiff; nor does it indicate any intent that
such a private corporation may sue to enforce its
provisions. Where the intended beneficiaries are specifi-
cally identified, we are loath to create a private means
of seeking redress under the act for nonbeneficiaries.
More important, the act contains a comprehensive
mechanism for ensuring agency compliance with its
provisions. We agree with the Johnson court that, far
48
Johnson, supra at 336-337.
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from demonstrating an intent to allow for a private
cause of action, the act indicates that the sole remedy
for a violation of § 9839(a) is an enforcement proceed-
ing by the secretary of the HHS and the possible
termination of Head Start agency status. See 42 USC
9836a.
In light of this clear indication of congressional
intent, we are precluded from venturing beyond the
bounds of the statutory text to divine support for the
creation of a private claim to enforce § 9839(a). To do so
would be to substitute our own judgment for that of
Congress and thus to usurp legislative authority, some-
thing that we of course decline to do.
49
IV. CONCLUSION
Because the Head Start Act does not provide for a
private cause of action to enforce the disclosure require-
ment of § 9839(a), plaintiff has failed to state a cogni-
zable claim. Accordingly, we reverse the judgment of the
Court of Appeals and enter judgment in favor of defen-
dant.
T
AYLOR
, C.J., and C
ORRIGAN
and M
ARKMAN
, JJ., con-
curred with Y
OUNG
,J.
49
Again, contrary to the assertions of our dissenting colleagues, we do
not miss any “important distinction” between the statutes at issue in
Touche Ross & Co and Alexander and the statute at issue in this case, and
this case does not represent the “opposite situation” of the situations
present in those cases. Post at 516. Rather, just as the provisions at issue
in Touche Ross & Co and Alexander, 42 USC 9839(a) calls for oversight
by governmental agencies. Post at 516. Moreover, we wholly disagree with
the dissent’s contention that § 9839(a) “specifically confers an individual
right on members of the public to conduct inspections of books and
records.” Post at 516. Rather, § 9839(a) imposes on Head Start agencies
a disclosure requirement, and 42 USC 9836a explicitly provides a remedy
for a violation of that requirement: corrective action to be initiated by the
secretary.
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W
EAVER,
J. (concurring in part and dissenting in
part). I concur in the majority opinion to the extent it
holds that the state courts have concurrent jurisdiction
in this matter.
I dissent from the majority holding that 42 USC
9839(a) of the federal Head Start Act does not permit
plaintiff to seek disclosure of information relevant to
the defendant’s decision on competing bids for a con-
tract. 42 USC 9839(a) provides, in pertinent part:
Each [Head Start] agency shall also provide for reason-
able public access to information, including public hearings
at the request of appropriate community groups and rea-
sonable public access to books and records of the agency or
other agencies engaged in program activities or operations
involving the use of authority or funds for which it is
responsible.
For the reasons stated in Justice K
ELLY
’s dissent, I
would hold that this statutory language does provide
plaintiff a right to seek “reasonable” disclosure of
records pertaining to contract bids submitted to a Head
Start agency.
I write separately to elaborate on the majority’s
misreading of the effect of Alexander v Sandoval
1
on
Cort v Ash.
2
Specifically, the majority is wrong to
suggest that Alexander “appears to have abandoned the
Cort inquiry altogether in favor of a completely textual
analysis in determining whether a private remedy ex-
ists under a particular statute.” Ante at 499.
Cort identified four factors relevant to determining
whether a federal statute implied a private remedy
where the statute did not expressly provide one. Cort
held:
1
532 US 275; 121 S Ct 1511; 149 L Ed 2d 517 (2001).
2
422 US 66; 95 S Ct 2080; 45 L Ed 2d 26 (1975).
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First, is the plaintiff “one of the class for whose especial
benefit the statute was enacted,”... that is, does the
statute create a federal right in favor of the plaintiff?
Second, is there any indication of legislative intent, explicit
or implicit, either to create such a remedy or to deny
one?... Third, is it consistent with the underlying pur-
poses of the legislative scheme to imply such a remedy for
the plaintiff? . . . And finally, is the cause of action one
traditionally relegated to state law, in an area basically the
concern of the States, so that it would be inappropriate to
infer a cause of action based solely on federal law?
[3]
Unlike Cort’s focus on whether a cause of action can
be inferred from a statute, Alexander involved a distinct
issue: whether a private cause of action could be in-
ferred from a regulation that forbids conduct beyond
that which was forbidden by the statute under which
the regulation was promulgated.
4
Because the conduct at issue in Alexander was pro-
hibited by a regulation, but not by the statute pursuant
to which the regulation was adopted, Alexander held
that a cause of action alleging conduct in violation of the
regulation could not be inferred from the statute. Given
3
Cort, supra at 78.
4
Alexander involved an interpretation of Title VI of the Civil Rights
Act of 1964, which provides in § 601 that no person shall, “on the ground
of race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity” covered by Title VI. 42 USC 2000d. Section 602 of
the statute authorizes federal agencies to implement the provisions in
§ 601 by regulations.
The Department of Justice adopted regulations pursuant to § 602 that
forbid funding recipients from adopting policies that created a disparate
impact on individuals because of their race, color, or national origin. See
28 CFR 42.104(b)(2) (1999). Claiming that an English-only policy caused
such disparate impacts, the plaintiffs in Alexander sued to enjoin the
policy. While the Alexander Court assumed that the regulations were
valid, the Court held that there was no private cause of action as a result
of the policy because § 601 did not prohibit disparate impacts.
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this situation, it was unnecessary for Alexander to delve
deeply into the Cort factors to resolve whether a cause
of action could be inferred from the statute.
Though the majority may prefer that Cort’s factors
be abandoned and a “completely textual” approach be
adopted, neither logic nor federal precedent supports its
preference. First, it is absurd to advocate a “completely
textual approach” where the need to examine whether a
cause of action may be inferred from a statute is
engendered by the lack of an expressly stated cause of
action in the text of the statute. Further, the majority
makes no attempt to explain how its “completely tex-
tual” approach differs from the Cort factors.
Second, while the majority correctly notes that not
every federal case involving whether a private cause of
action may be inferred from a statute has applied all the
four Cort factors, it is an overstatement to suggest that
the federal courts have “abandoned the Cort inquiry
altogether.” Even federal cases relied on by the majority
employ a Cort-based analysis. For example in Hodder v
Schoharie Co Child Dev Council, Inc, 1995 US Dist
LEXIS 19049, *10 (ND NY, 1995), the court premised
its analysis as follows:
The Court may infer a private right of action from a
federal statute that does not expressly create one only if the
statute’s language, structure, and legislative history reveal
Congress’ intent to create a private right of action. See
Thompson v. Thompson, 484 U.S. 174, 179, 98 L. Ed. 2d
512, 108 S. Ct. 513 (1988); Touche Ross & Co. v. Redington,
442 U.S. 560, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979); Cort v.
Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975).
Courts normally try to divine Congressional intent by
applying the four Cort factors: 1) whether plaintiffs belong
to the class for whose special benefit Congress passed the
statute; 2) whether the indicia of legislative intent reveal a
congressional purpose to provide a private cause of action;
508 472 M
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3) whether implying a private cause of action is consistent
with the underlying purposes of the legislative scheme; and
4) whether the plaintiff’s cause of action concerns a subject
that is traditionally relegated to state law. Merrell Dow
[Pharmaceuticals Inc v Thompson], 478 U.S. [804, 810-811;
106 S Ct 3229; 92 L Ed 2d 650 (1986)]; Cort, 422 U.S. at 78.
Hodder applied each factor from Cort to the provision
of the Head Start Act at issue in that case.
That the majority misunderstands Alexander’s effect
is underscored by a recent United States Supreme
Court decision, Jackson v Birmingham Bd of Ed, 544
US ___, ___; 125 S Ct 1497, 1506; 161 L Ed 2d 361, 373
(2005), where the Court emphasized that Alexander’s
holding is simply premised on the fact that the regula-
tions at issue in Alexander extended protection beyond
the limits of the statute at issue in Alexander. Describ-
ing the holding of Alexander, Jackson stated:
[In Alexander] we rejected the contention that the
private right of action to enforce intentional violations of
Title VI encompassed suits to enforce the disparate-impact
regulations. We did so because “it is clear... that the
disparate-impact regulations do not simply apply § 601 —
since they indeed forbid conduct that § 601 permits — and
therefore clear that the private right of action to enforce §
601 does not include a private right to enforce these
regulations.” [Alexander] at 285, 149 L. Ed. 2d 517, 121 S.
Ct. 1511. See also Central Bank of Denver, N. A. v. First
Interstate Bank of Denver, N. A., 511 U.S. 164, 173, 128 L.
Ed. 2d 119, 114 S. Ct. 1439 (1994) (A “private plaintiff may
not bring a [suit based on a regulation] against a defendant
for acts not prohibited by the text of [the statute]”).
In this case we must necessarily look beyond the text
of the statute at issue to discern whether Congress
intended that a private person be able to seek disclosure
of documents from a Head Start agency. The text of the
statute at issue in this case, 42 USC 9839(a), does not
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expressly create a private cause of action to enforce its
provision regarding public access to information. Thus,
it is necessary to look beyond the text to determine
whether Congress intended to create a private cause of
action. As recognized in California v Sierra Club, 451
US 287, 293; 101 S Ct 1775; 68 L Ed 2d 101 (1981), the
four Cort factors
present the relevant inquiries to pursue in answering the
recurring question of implied causes of action. Cases sub-
sequent to Cort have explained that the ultimate issue is
whether Congress intended to create a private right of
action...butthefour factors specified in Cort remain the
“criteria through which this intent could be discerned.”
[Citations omitted.]
Given the task at hand and the federal precedent by
which we are bound, it is absurd to suggest that we
must employ a “completely textual” approach. Any
inquiry into whether a private cause of action may be
inferred requires consideration of the intent of Con-
gress and Cort is our guide. Regardless of the majority’s
apparent discomfort with Cort’s factors and inferred
causes of action, we are bound by federal law and five
votes have not combined in any one case in the United
States Supreme Court to declare Cort a dead letter.
5
K
ELLY,
J. (dissenting). I agree with the majority that
our state courts have jurisdiction over plaintiff’s claim
under the federal Head Start Act, 42 USC 9831 et seq.
However, I disagree with its conclusion that the act, at
42 USC 9839(a), does not provide a private cause of
5
In Thompson v Thompson, 484 US 174; 108 S Ct 513; 98 L Ed 2d 512
(1988), Justice Scalia (concurring in the judgment) expressed his vigor-
ous disagreement with whether the Court should reaffirm Cort and
whether it was appropriate to infer private causes of action from federal
statutes that do not expressly provide them. Justice Scalia’s view of Cort
and inferred causes of action has not yet garnered the requisite five votes.
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ELLY
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action. The statutory language, the focus of the legisla-
tion, its history, and its purpose imply a congressional
intent to allow private actions. Therefore, I would find
such a right and affirm the decision of the Court of
Appeals.
DEFENDANT’S VARIOUS JURISDICTIONAL CHALLENGES
Defendant raises a variety of jurisdictional argu-
ments on appeal. It claims that primary jurisdiction
must rest with the Department of Health and Human
Services (HHS) because, otherwise, an “imbalance”
would be created in the administration of the Head
Start Act. This Court explained the doctrine of primary
jurisdiction in Travelers Ins Co v Detroit Edison Co, 465
Mich 185; 631 NW2d 733 (2001). It is based on the
principle of separation of powers and is concerned with
the respect appropriately shown to an agency’s deci-
sions made in the performance of regulatory duties. Id.
at 196-197.
The primary jurisdiction doctrine underscores the
notion that administrative agencies possess specialized
and expert knowledge to address the matters they
regulate. Id. at 198. The question of primary jurisdic-
tion arises only with respect to matters that Congress
has assigned to a governmental agency or administra-
tive body. Attorney General v Diamond Mortgage Co,
414 Mich 603, 613; 327 NW2d 805 (1982). This case
does not concern such matters.
Moreover, resolution of this case does not require
specialized knowledge. Instead, it involves a straight-
forward question of statutory interpretation. This
Court is well equipped to handle such questions because
they do not require specialized or expert knowledge
outside the scope of our general jurisdiction. Therefore,
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the primary jurisdiction doctrine simply does not apply
to this case. Id.; Travelers, supra at 198-199.
Defendant complains that, under the Chevron
1
doc-
trine, the meaning that HHS has given to “reasonable
public access” in various letters interpreting 42 USC
9839(a) should be definitive. Chevron directs that con-
siderable weight be accorded an agency’s construction
of a statutory scheme. Chevron, supra at 844. But this
applies only when the decision involves reconciling
conflicting policies and requires more than ordinary
knowledge of matters that the agency regulates. Id.
This case does not demand a detailed knowledge of
the subject matter of the Head Start Act. Nor does it
concern a complicated matter of interagency interac-
tion or policy. It does not require detailed knowledge of
the workings of the Head Start Act. R ather, it involves
an issue of statutory construction. No special expertise
being required, the Chevron doctrine does not apply.
Id.
Defendant also argues that we lack jurisdiction be-
cause plaintiff failed to exhaust all its administrative
remedies. But the United States Supreme Court has
ruled that “where Congress has not clearly required
exhaustion, sound judicial discretion governs.” McCar-
thy v Madigan, 503 US 140, 144; 112 S Ct 1081; 117 L
Ed 2d 291 (1992). 42 USC 9839(a) contains no exhaus-
tion requirements and is silent regarding administra-
tive remedies. Therefore, it is within our sound discre-
tion to hear this case.
Given that none of the theories that defendant relies
on to challenge this Court’s jurisdiction applies here, it
is appropriate for us to reach the merits of the case. And
1
Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US
837; 104 S Ct 2778; 81 L Ed 2d 694 (1984).
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it is appropriate for us to decide whether Congress
intended a private right of action in 42 USC 9839(a).
WHETHER A PRIVATE CAUSE OF ACTION EXISTS REQUIRES
A DETERMINATION OF LEGISLATIVE INTENT
Congress can create a private right of action in two
ways. It can expressly provide for the right or it can
imply it. Cannon v Univ of Chicago, 441 US 677, 717; 99
S Ct 1946; 60 L Ed 2d 560 (1979). Frequently, legisla-
tion does not clearly express whether a private right
was intended. The growing volume of litigation and the
complexity of federal legislation increase the need for
careful scrutiny to ensure what Congress wanted. Mer-
rill Lynch, Pierce, Fenner & Smith, Inc v Curran, 456
US 353, 377; 102 S Ct 1825; 72 L Ed 2d 182 (1982).
To assist us in undertaking that scrutiny, the United
States Supreme Court articulated a four-part test thirty
years ago in Cort v Ash, 422 US 66; 95 S Ct 2080; 45 L Ed
2d 26 (1975). A court makes four inquiries: (1) whether
the plaintiff is a member of the class for whose benefit
the legislative body enacted the statute, (2) whether
there is any indication that the legislative body intended
to create or deny such a right of action, (3) whether
inferring the right of action is consistent with the under-
lying scheme of the legislation, and (4) whether the cause
of action is one traditionally relegated to state law so that
it would be inappropriate to base the determination
solely on federal law. Id. at 78. The key to this inquiry is
determining the legislative intent in enacting the stat-
ute. Merrill Lynch, supra at 377-378.
In Touche Ross & Co v Redington,
2
the Court opined
that the first three factors of Cort should be given
greater weight than the fourth. The opinion states:
2
442 US 560; 99 S Ct 2479; 61 L Ed 2d 82 (1979).
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Indeed, the first three factors discussed in Cort—the
language and focus of the statute, its legislative history, and
its purpose, see 422 U.S., at 78—are ones traditionally relied
upon in determining legislative intent. [Id. at 575-576.]
The language of the statute in question in Touche
Ross
3
did not explicitly create a private remedy. Also,
the legislative history gave no indication that Congress
intended one. The statute neither conferred rights on
private parties nor proscribed conduct as unlawful.
Touche Ross, supra at 569. It required that brokers
keep certain documents for government inspection and
focused on governmental rights of inspection. Id.at
569-570. Because the statute did not imply a private
right of action, the Court found that none existed. Id. at
571.
The majority contends that, twenty-two years after
Touche Ross, the United States Supreme Court aban-
doned the Cort analysis and switched to a completely
textual analysis in Alexander v Sandoval, 532 US 275;
121 S Ct 1511; 149 L Ed 2d 517 (2001). I disagree. In
Alexander, the Court followed the same reasoning as in
Touche Ross and focused on the initial Cort factors.
As in Touche Ross, the Alexander Court stated that, to
determine legislative intent, it was important to start
with the language of the statute. Id. at 287-288. In that
case, it needed to go no further in its inquiry. Id. at 288.
The reason was that, as in T ouche Ross, the statute
under consideration
4
indicated that Congress intended
not to create a private cause of action. Alexander, supra
at 288-289.
That statute neither conferred rights on private
parties nor proscribed conduct as unlawful. Instead, it
3
15 USC 78q(a).
4
42 USC 2000d-1.
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empowered governmental agencies to enforce regula-
tions. Id. at 289. The Court concluded that, by expressly
providing one method of enforcement, Congress signaled
that it intended to preclude other methods.
5
Id. at 290.
Contrary to the majority’s conclusion, a full reading
of Alexander indicates that the Court did not abandon
Cort. Instead, Alexander stated that the analysis in that
case need not extend beyond the first two Cort factors
because the statute indicated that Congress did not
intend a private cause of action. The Cort factors
remain a valid and important means of discerning
legislative intent. The Alexander decision provides no
basis to conclude the contrary.
SPECIFIC ANALYSIS OF 42 USC 9839
Despite espousing a textualist approach, the majority
never deals with the actual language of 42 USC 9839(a).
Instead, it focuses on tangentially related federal district
court cases and the overall purpose of the Head Start
Act.
Let us review the actual language in question. 42
USC 9839(a) provides in part:
Each Head Start agency shall observe standards of
organization, management, and administration which will
assure, so far as reasonably possible, that all program
activities are conducted in a manner consistent with the
purposes of this subchapter [42 USC 9831 et seq.] and the
5
The majority points out that 42 USC 9839(a) contains language like
the statutory language that the Supreme Court analyzed in Alexander.
Ante at 500 n 46. But the majority again misses the point. Unlike 42 USC
2000d-1, it contains a directive that does not concern the mere internal
creation of rules. 42 USC 9839(a) contains language that is absent in 42
USC 2000d-1 (the statutory language analyzed in Alexander). 42 USC
9839(a) specifically mentions the “public” and “appropriate community
groups....” It allows the public and these groups to request public
hearings and to seek access to books and records. 42 USC 9839(a).
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objective of providing assistance effectively, efficiently, and
free of any taint of partisan political bias or personal or
family favoritism. Each such agency shall establish or
adopt rules to carry out this section, which shall include
rules to assure full staff accountability in matters governed
by law, regulations, or agency policy. Each agency shall also
provide for reasonable public access to information, includ-
ing public hearings at the request of appropriate community
groups and reasonable public access to books and records of
the agency or other agencies engaged in program activities
or operations involving the use of authority or funds for
which it is responsible. Each such agency shall adopt for
itself and other agencies using funds or exercising author-
ity for which it is responsible, rules designed to... (3)
guard against personal or financial conflicts of inter-
est....[Emphasis added.]
This language indicates the intent of Congress to
maintain open accountability in the use of Head Start
funds. It explicitly provides a right of public access.
After stating that “[e]ach agency shall also provide for
reasonable public access to information,” it spells out
particulars on how to meet this requirement, including
holding public meetings.
The statute specifically confers an individual right on
members of the public to conduct inspections of books
and records. The opposite situation existed in both
Touche Ross and Alexander, where the statutes lacked
language creating such a right. They offered neither the
general public nor any private individual access to
anything. The oversight they called for was by govern-
mental agencies. Alexander, supra at 288-289; Touche
Ross, supra at 569-570. The majority simply misses this
important distinction.
6
6
The majority states that it “wholly disagree[s]” with the conclusion
that 42 USC 9839(a) confers an individual right on a member of the
public. It contends that 42 USC 9839(a) merely creates a disclosure
requirement. Ante at 505 n 49. Again, the majority fails to analyze the
516 472 M
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It relies on two federal district court cases, Johnson v
Quin Rivers Agency for Community Action, Inc, 128 F
Supp 2d 332 (ED Va, 2001), and Hodder v Schoharie Co
Child Dev Council, Inc, 1995 US Dist LEXIS 19049 (ND
NY, 1995). But Johnson and Hodder do not support the
conclusion that no private cause of action exists and
they are inapplicable to the case at hand.
Neither dealt with 42 USC 9839(a). Johnson con-
cerned claims of discrimination and substandard en-
forcement of Head Start regulations. Johnson, supra at
335. The Head Start provisions in question were 42
USC 9836a(a)(1) and (2). Johnson, supra at 336-337.
Hodder concerned claims of employees terminated
from Head Start agencies. Hodder, supra at *16. It dealt
with 42 USC 9849(b). Hodder, supra at *12. 42 USC
9839(a) was mentioned only in passing.
The only thing Hodder and Johnson have in common
with this case is that both involve provisions of the
Head Start Act. But the statutory language scrutinized
in Hodder and Johnson makes no mention of public
access as 42 USC 9839(a) does. Given that Hodder and
Johnson do not deal with 42 USC 9839(a), they are of no
assistance in our resolution of this case.
The majority also bases its decision on the general
purpose of the Head Start Act. It assumes that the only
purpose worth considering is the act’s overarching goal
of providing services to low-income children and their
families. It ignores the congressional intent specifically
written into 42 USC 9839(a).
actual language of the statute. 42 USC 9839(a) mandates public access,
such as public hearings, at the request of “appropriate community
groups....”Onlybyallowing enforcement of this public inspection and
access requirement can we effectuate Congress’s specific goal of main-
taining open accountability in the use of public funds. The majority
simply ignores this clear congressional intent.
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42 USC 9839(a) specifies Congress’s goal of main-
taining open accountability in the use of public funds
and effectuates it by providing a right of public access to
books and records. By ignoring these specific provi-
sions, the majority has effectively substituted its judg-
ment for that of Congress. In reducing public oversight,
it frustrates the paramount goals of the Head Start Act
by facilitating the misuse of federal funds.
APPLICATION OF THE CORT FACTORS TO 42 USC 9839(a)
Given that the language of the statute does not
contradict the existence of a private cause of action, it is
appropriate to apply all the Cort factors. The first ques-
tion is whether plaintiff is in the class for whose benefit
Congress enacted 42 USC 9839(a). The statute indicates
that Congress intended to grant access to the public at
large. Plaintiff is a member of the public. Therefore,
plaintiff is within the appropriate class. Cort, supra at 79.
The second question, whether there is any indication
that Congress intended to create or to deny a private
right of action, has already been discussed. The lan-
guage of 42 USC 9839(a) indicates a specific intent to
create such an action. There is no legislative history or
other material contradicting this intent.
The third question is whether it is consistent with
the underlying legislative scheme to infer a private
right of action. Cort, supra at 78. As the majority states,
the overall purpose of the Head Start Act is to promote
school readiness. 42 USC 9831. As part of its plan to
reach this goal, Congress expressed an intent to main-
tain open accountability in the use of public funds in 42
USC 9839(a). In the same section, to effectuate this
intent, Congress provided the public with a right of
access to books and records. Inferring a right of action
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to implement this right enforces that intent. Therefore,
inferring a right of action is consistent with the legis-
lative scheme.
Finally, there is no indication that this is a cause of
action traditionally relegated to state law. And defen-
dant makes no such argument. To the contrary, an
action pursuant to 42 USC 9839(a) is the only means by
which plaintiff could obtain the information it seeks.
Therefore, the analysis of this factor, as with the other
Cort factors, points to the need to recognize a private
right of action under 42 USC 9839(a).
WHERE A LEGAL RIGHT EXISTS, SO DOES A LEGAL REMEDY
“The very essence of civil liberty certainly consists in
the right of every individual to claim the protection of
the laws....” Marbury v Madison, 5 US (1 Cranch)
137, 163;2LEd60(1803). One of the fundamental
tenets of the American legal system is that, where there
is a legal right, there is also a legal remedy. Id. After it
is determined that Congress intended a right of action,
courts presume the availability of all appropriate rem-
edies unless Congress has expressly indicated other-
wise. Franklin v Gwinnett Co Pub Schools, 503 US 60,
66; 112 S Ct 1028; 117 L Ed 2d 208 (1992).
In this case, a private right of action exists under 42
USC 9839(a). Plaintiff sought the appropriate remedy of
viewing the records of the bids submitted for office
supplies and furniture. Defendant makes no persuasive
argument that viewing this information would be unrea-
sonable. This proposed remedy is specifically consistent
with the language of 42 USC 9839(a), which allows for
reasonable inspections of books and records. Therefore,
Congress has not expressly indicated that this remedy is
inappropriate. And the trial court did not err in granting
it.
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I would affirm the decision of the Court of Appeals.
C
AVANAGH,
J., concurred with K
ELLY
,J.
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GRIFFITH v STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
Docket No. 122286. Argued October 5, 2004 (Calendar No. 2). Decided
June 14, 2005.
Phyllis L. Griffith, legal guardian for Douglas W. Griffith, a legally
incapacitated person, brought an action in the Ingham Circuit
Court against State Farm Mutual Automobile Insurance Company,
seeking no-fault insurance benefits for Douglas Griffith’s food
expenses while receiving at-home care. The court, Peter D. Houk,
J., entered a judgment for the plaintiff, ruling that the food costs
were allowable expenses under MCL 500.3107(1)(a). The Court of
Appeals, W
HITE
,P.J., and N
EFF
and J
ANSEN
, JJ., affirmed. Unpub-
lished opinion per curiam, issued August 16, 2002 (Docket No.
232517). The Supreme Court granted leave to appeal. 469 Mich
1020 (2004).
In an opinion by Justice C
ORRIGAN
, joined by Chief Justice
T
AYLOR
and Justices Y
OUNG
and M
ARKMAN
, the Supreme Court held:
Under MCL 500.3105(1) and MCL 500.3107(1)(a) the defen-
dant is not required to reimburse the plaintiff for the food
expenses at issue. The food expenses involved in this matter are
neither “for accidental bodily injury” under § 3105 nor “for an
injured person’s care, recovery, or rehabilitation” under
§ 3107(1)(a).
1. Sections 3105(1) and 3107(1)(a) require that for expenses to
be compensable under the no-fault act, the expenses must be for
accidental bodily injury arising out of the ownership, operation,
maintenance or use of a motor vehicle and must be reasonably
necessary for an injured person’s care, recovery, or rehabilitation.
A no-fault insurer is liable to pay benefits only to the extent that
the claimed benefits are causally connected to the accidental bodily
injury arising out of an automobile accident. An insurer is liable to
pay benefits for accidental bodily injury only if those injuries arise
out of or are caused by the ownership, operation, maintenance, or
use of a motor vehicle. In this case, the plaintiff does not claim that
Douglas Griffith’s diet is different from that of an uninjured
person, that his food expenses are part of his treatment plan, or
that the costs are related in any way to his injuries. The plaintiff
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claims instead that the defendant is liable for ordinary, everyday
food expenses. As such, the plaintiff has not established that the
food expenses are for accidental bodily injury.
2. The products, services, and accommodations that are rea-
sonably necessary for an injured person’s recovery or rehabilita-
tion under § 3107(1)(a) are those that are reasonably necessary to
restore the injured person to the condition he was in before
sustaining injury or to bring the injured person to a condition of
health or ability to resume his preinjury life. The products,
services, and accommodations reasonably necessary for the in-
jured person’s care under § 3107(1)(a) are those whose provision is
necessitated by the injury sustained in the motor vehicle accident.
The food costs at issue here are not related to the injured person’s
care, recovery, or rehabilitation. The food the injured person
consumes is simply an ordinary means of sustenance rather than
a treatment for his care, recovery, or rehabilitation.
3. The decision in Reed v Citizens Ins Co of America, 198 Mich
App 443 (1993), which held that a person receiving at-home care is
entitled to room and board costs under § 3107(1)(a) to the same
extent that such costs would constitute an allowable expense if the
injured person received the same care in an institutional setting,
must be overruled.
Reversed.
Justice W
EAVER
, dissenting, stated that the reasonable charges
incurred for the plaintiff’s husband’s food while he is cared for at
home are recoverable as allowable expenses under MCL
500.3107(1)(a). The opinion of the Court of Appeals should be
affirmed. It is hard to deny that food is a product reasonably
necessary for the care of an invalid, however “care” is defined.
There is no principled basis for deciding that food provided to the
plaintiff’s husband at home is not as much an allowable expense as
the food provided in a licensed medical care facility.
Justice K
ELLY
, joined by Justice C
AVANAGH
, dissenting, stated
that food is a product reasonably necessary for the care of an
invalid, however the word “care” is defined. The appropriate
question is whether the injured person reasonably incurred the
questioned expense as part of his or her care, recovery, or reha-
bilitation. The majority arbitrarily limits the meaning of “care” to
that care needed for recovery and rehabilitation, ascribing to
“care” a restorative meaning. “Care” fits with “recovery” and
“rehabilitation” when “care” is interpreted broadly to mean the
provision of what is necessary for the welfare and protection of the
injured insured. The Legislature intended that an injured in-
sured’s needs be furnished until recovery has been accomplished
522 472 M
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521 [June
through rehabilitation. The Legislature did not expressly limit the
expenses recoverable in no-fault cases to those that the injured
person did not require before the injury. The no-fault act does not
provide that the determination whether a home-based expense is
allowable depends on whether an uninjured person would have the
same expense. No principled distinction justifies a holding that,
where a patient is institutionalized, food is a reasonably necessary
expense, but if he or she is at home receiving the same care, it is
not. The decision in Reed v Citizens Ins Co of America was correct
and should not be overturned.
1. I
NSURANCE —
N
O
-F
AULT —
P
ERSONAL
P
ROTECTION
I
NSURANCE —
C
OMPENSABLE
E
XPENSES
.
An expense, to be compensable under the personal protection
insurance provisions of the no-fault act, must be for accidental
bodily injury arising out of the ownership, operation, mainte-
nance, or use of a motor vehicle and be reasonably necessary for
the injured person’s care, recovery, or rehabilitation; the expenses
must be causally connected to the accidental bodily injury arising
out of an automobile accident and the injury must arise out of or
be caused by the ownership, operation, maintenance, or use of a
motor vehicle (MCL 500.3105[1]).
2. I
NSURANCE —
N
O
-F
AULT —
P
ERSONAL
P
ROTECTION
I
NSURANCE —
A
LLOWABLE
E
XPENSES
.
A no-fault insurer is liable under the personal protection insurance
provisions of the no-fault act for “allowable expenses” for the cost
of products, services, and accommodations reasonably necessary
for an injured person’s care, recovery, or rehabilitation; products,
services, and accommodations that are reasonably necessary for
the injured person’s recovery or rehabilitation are those that are
reasonably necessary to restore the person to the condition he was
in before sustaining injury or to bring the person to a condition of
health or ability to resume his preinjury life; products, services
and accommodations reasonably necessary for the injured person’s
care are those whose provision is necessitated by the injury
sustained in the motor vehicle accident (MCL 500.3105[1],
500.3107[1][a]).
Sinas, Dramis, Brake, Boughton & McIntyre, P.C. (by
George T. Sinas, Bryan J. Waldman, and L. Page
Graves), for the plaintiff.
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Garan Lucow Miller, P.C. (by Daniel S. Saylor and
David N. Campos), for the defendant.
Amici Curiae:
Gross, Nemeth & Silverman, P.L.C. (by Steven G.
Silverman), for Auto Club Insurance Association.
Cochran, F oley & Associates, P.C. (by T erry L. Cochran
and Mary K. Freedman), for The Coalition Protecting
Auto No Fault.
C
ORRIGAN,
J. In this case, we consider whether the
no-fault act, MCL 500.3101 et seq., requires defendant,
a no-fault insurer, to reimburse plaintiff for her inca-
pacitated husband’s food expenses. Because the food in
this case is neither “for accidental bodily injury” under
MCL 500.3105(1) nor “for an injured person’s care,
recovery, or rehabilitation” under MCL 500.3107(1)(a),
we hold that the expenses for it may not be recovered
under those provisions of the no-fault act. We thus
reverse the judgment of the Court of Appeals.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
On April 28, 1994, plaintiff’s sixty-three-year-old
husband, Douglas Griffith,
1
suffered a severe brain
injury as a result of a motor vehicle accident. He
received treatment at in-patient facilities and hospitals
until August 1995, at which time he was transferred to
a residence where he received twenty-four-hour nursing
and attendant care. On August 6, 1997, Griffith re-
turned home with plaintiff. He remains confined to a
wheelchair and continues to require assistance with
basic daily tasks such as eating and bathing.
1
This opinion references Douglas Griffith as “Griffith” and Phyllis
Griffith as “plaintiff.”
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After the accident, defendant provided coverage as
Griffith’s no-fault insurer. Until the time that Griffith
returned home, the expenses that defendant covered
included food expenses. After Griffith returned home,
defendant denied plaintiff’s claim for Griffith’s food
expenses, and plaintiff sued to recoup those expenses.
2
The trial court ruled that Griffith’s food costs are an
“allowable expense” under MCL 500.3107(1)(a) of the
no-fault act and ordered defendant to pay a per diem
food charge.
The Court of Appeals affirmed.
3
The Court relied on
Reed v Citizens Ins Co of America, 198 Mich App 443;
499 NW2d 22 (1993), which held that a person receiving
at-home care is entitled to room and board costs under
MCL 500.3107(1)(a) to the same extent that such costs
would constitute an allowable expense if the injured
person received the same care in an institutional set-
ting. Thus, the panel concluded that, under Reed,
Griffith’s food costs are an “allowable expense” under
MCL 500.3107(1)(a).
Defendant filed an application for leave to appeal to
this Court, which this Court denied.
4
Thereafter, this
Court granted defendant’s motion for reconsideration
and granted leave to appeal.
5
II. STANDARD OF REVIEW
This case requires us to determine whether an in-
jured person’s food costs constitute an “allowable ex-
pense” under MCL 500.3107(1)(a). Issues of statutory
2
Plaintiff’s complaint included claims for items other than Griffith’s
food, but those claims are not at issue in this appeal.
3
Unpublished opinion per curiam of the Court of Appeals, issued
August 16, 2002 (Docket No. 232517).
4
468 Mich 946 (2003).
5
469 Mich 1020 (2004).
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interpretation are questions of law that this Court
reviews de novo. Jenkins v Patel, 471 Mich 158, 162; 684
NW2d 346 (2004).
III. PRINCIPLES OF STATUTORY INTERPRETATION
When interpreting a statute, we must ascertain the
legislative intent that may reasonably be inferred from
the statutory language itself. Sotelo v Grant Twp, 470
Mich 95, 100; 680 NW2d 381 (2004). When the language
of a statute is unambiguous, the Legislature’s intent is
clear and judicial construction is neither necessary nor
permitted. Koontz v Ameritech Services, Inc, 466 Mich
304, 312; 645 NW2d 34 (2002). Because the role of the
judiciary is to interpret rather than write the law,
courts lack authority to venture beyond a statute’s
unambiguous text. Id. Further, we accord undefined
statutory terms their plain and ordinary meanings and
may consult dictionary definitions in such situations.
Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129
(2004).
IV. ANALYSIS
A. STATUTORY LANGUAGE AND LEGAL BACKGROUND
MCL 500.3105(1) provides:
Under personal protection insurance an insurer is liable
to pay benefits for accidental bodily injury arising out of
the ownership, operation, maintenance or use of a motor
vehicle as a motor vehicle, subject to the provisions of this
chapter. [Emphasis added.]
According to the plain language of MCL 500.3105(1), a
no-fault insurer is only required to pay benefits “for
accidental bodily injury” arising out of an automobile
accident. The no-fault act further restricts a no-fault
insurer’s liability by defining the limited types of ben-
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521 [June
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efits that are payable “for accidental bodily injury ....”
MCL 500.3107(1)(a), the statutory provision at the
center of this case, states:
Except as provided in subsection (2), personal protec-
tion insurance benefits are payable for the following:
(a) Allowable expenses consisting of all reasonable
charges incurred for reasonably necessary products, ser-
vices and accommodations for an injured person’s care,
recovery, or rehabilitation. [Emphasis added.]
Thus, in addition to the requirement under MCL
500.3105(1) that benefits be “for accidental bodily in-
jury,” MCL 500.3107(1)(a) circumscribes benefits to
those expenses consisting only of items or services that
are reasonably necessary “for an injured person’s care,
recovery, or rehabilitation.”
Both this Court and the Court of Appeals have
interpreted and applied the above statutes in cases
involving claims for food or “room and board” expenses.
In Manley v Detroit Automobile Inter-Ins Exchange, 127
Mich App 444, 448; 339 NW2d 205 (1983), rev’d 425
Mich 140 (1986), the plaintiffs’ minor son suffered
severe head trauma in an automobile accident. He
resided with the plaintiffs and received care from
nurse’s aides. Id. at 449. The plaintiffs sued the defen-
dant no-fault carrier, seeking, among other things,
reimbursement for his room and board costs. Id.at
448-449. The defendant insurance carrier argued that
because the plaintiffs already had a legal duty to care
for their child, room and board costs were not compens-
able. Id. at 451. The Court of Appeals rejected this
argument, largely on the basis of a worker’s compensa-
tion case that distinguished between “ordinary house-
hold tasks” such as cleaning and washing clothes and
nonordinary tasks such as “ ‘[s]erving meals in bed and
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bathing, dressing, and escorting a disabled person
....’”Id. at 452, quoting Kushay v Sexton Dairy Co,
394 Mich 69; 228 NW2d 205 (1975).
The panel concluded that the distinction between
ordinary and nonordinary tasks could be reconciled
with the language of MCL 500.3107(a), which then
provided that “products, services, and accommodations
not reasonably necessary for the injured person’s care,
recovery, or rehabilitation are not ‘allowable ex-
penses.’ ” 127 Mich App at 453. The Court reasoned:
The necessity for the performance of ordinary house-
hold tasks has nothing to do with the injured person’s care,
recovery, or rehabilitation; such tasks must be performed
whether or not anyone is injured.
This reasoning supports a generalization concerning the
circumstances in which a product, service, or accommoda-
tion can fall within the definition of “allowable expense”.
Products, services, or accommodations which are as neces-
sary for an uninjured person as for an injured person are
not “allowable expenses”. [Id. at 453-454 (emphasis
added).]
The panel then opined that food “is as necessary for an
uninjured person as for an injured person” and thus
would not ordinarily constitute an “allowable expense”
under MCL 500.3107 for an injured person cared for at
home. 127 Mich App at 454.
When Manley was appealed to this Court, we effec-
tively vacated the Court of Appeals room and board
analysis. Manley v Detroit Automobile Inter-Ins Ex-
change, 425 Mich 140; 388 NW2d 216 (1986). We stated
that the “question whether food, shelter, utilities, cloth-
ing, and other such maintenance expenses are an allow-
able expense when the injured person is cared for at
home” had neither been raised before the trial court nor
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argued in the Court of Appeals. Id. at 152. Accordingly,
this Court declined to address the issue and stated that
the Court of Appeals analysis of the issue “shall not be
regarded as of precedential force or effect.” Id. at 153.
Justice B
OYLE
issued a concurring and dissenting
opinion, asserting that the room and board issue was
properly before this Court because the Court of Appeals
had raised it sua sponte and discussed the issue in its
opinion. Id. at 168 (B
OYLE,
J
.,
concurring in part and
dissenting in part). She could find “no principled basis”
for distinguishing between food provided in an institu-
tional setting and food provided at home, and concluded
that the Court of Appeals “injured person vs. uninjured
person” test was not only “unwieldy and unworkable”
but that it effectively punished those who choose to care
for injured family members at home. Id. at 168-169.
Justice B
OYLE
opined that MCL 500.3107 imposes three
requirements for “allowable expenses”: “1) the charge
must be reasonable, 2) the expense must be reasonably
necessary, and 3) the expense must be incurred.” 425
Mich at 169.
Thereafter, in Reed, the Court of Appeals adopted
Justice B
OYLE
’s Manley analysis. The insured in Reed
had been severely injured in an auto accident. Reed,
supra at 445. The plaintiff, the insured’s mother, filed
various claims against the defendant insurer and moved
to amend her complaint to include a claim for room and
board expenses. Id. at 445-446. The trial court denied
the motion on the basis that such expenses were not
recoverable under the no-fault act. Id. at 446.
The Court of Appeals reversed, reasoning as follows:
We see no compelling reason not to afford the same
compensation under the act to family members who pro-
vide room and board. Subsection 1(a) does not distinguish
between accommodations provided by family members and
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accommodations provided by institutions, and we decline
to read such a distinction into the act. Moreover, holding
that accommodations provided by family members is [sic]
an “allowable expense” is in accord with the policy of this
state. Denying compensation for family-provided accom-
modations while allowing compensation in an institutional
setting would discourage home care that is generally, we
believe, less costly than institutional care. Irrespective of
cost considerations, it can be stated without hesitation that
home care is more personal than that given in a clinical
setting....
We hold that, where an injured person is unable to care
for himself and would be institutionalized were a family
member not willing to provide home care, a no-fault insurer
is liable to pay the cost of maintenance in the home. [Id. at
452-453 (citations omitted; emphasis added).]
In addition to the above reasoning, the Court of
Appeals relied on the notion that because the no-fault
act is remedial in nature, it “must be liberally con-
strued in favor of persons intended to benefit thereby.”
Id. at 451.
B. INTERPRETATION OF STATUTORY LANGUAGE
AND APPLICATION
As previously stated, MCL 500.3105(1) and MCL
500.3107(1)(a) impose two separate and distinct re-
quirements for “care, recovery, or rehabilitation” ex-
penses to be compensable under the no-fault act. First,
such expenses must be “for accidental bodily injury
arising out of the ownership, operation, maintenance or
use of a motor vehicle....”MCL500.3105(1) (empha-
sis added). Second, these expenses must be “reasonably
necessary...foraninjured person’s care, recovery, or
rehabilitation.” MCL 500.3107(1)(a).
Defendant contends that MCL 500.3105(1) requires
that allowable expenses be causally connected to a
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person’s injury. We agree. In fact, MCL 500.3105(1)
imposes two causation requirements for no-fault ben-
efits.
First, an insurer is liable only if benefits are “for
accidental bodily injury....”“[F]or” implies a causal
connection.
6
“[A]ccidental bodily injury” therefore trig-
gers an insurer’s liability and defines the scope of that
liability. Accordingly, a no-fault insurer is liable to pay
benefits only to the extent that the claimed benefits are
causally connected to the accidental bodily injury aris-
ing out of an automobile accident.
Second, an insurer is liable to pay benefits for acci-
dental bodily injury only if those injuries “aris[e] out
of” or are caused by “the ownership, operation, main-
tenance or use of a motor vehicle....” It is not any
bodily injury that triggers an insurer’s liability under
the no-fault act. Rather, it is only those injuries that are
caused by the insured’s use of a motor vehicle.
In this case, it is uncontested that the insured’s
injuries arose out of his use of an automobile. There-
fore, to the extent that the insured’s injuries stem from
an automobile accident, application of the second causal
element noted above does not bar plaintiff’s claim.
The first causal element, however, poses a problem
for plaintiff. Plaintiff does not claim that her husband’s
diet is different from that of an uninjured person, that
his food expenses are part of his treatment plan, or that
these costs are related in any way to his injuries. She
claims instead that Griffith’s insurer is liable for ordi-
6
Random House Webster’s College Dictionary (1997) defines “for,”
when used as a preposition, as “with the object or purpose of,” “intended
to belong to or be used in connection with,” or “suiting the purposes or
needs of.” The definition offered by Justice K
ELLY
—“ ‘by reason of’ ”—
also implies a causal connection. See post at 545. (Citation omitted.)
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nary, everyday food expenses. As such, plaintiff has not
established that these expenses are “for accidental
bodily injury....”
7
Even if ordinary food expenses were compensable
under § 3105, an insurer would be liable for those
expenses only if they were also “allowable expenses”
under MCL 500.3107(1)(a). This section provides that
benefits are payable for “reasonably necessary prod-
ucts, services and accommodations for an injured per-
son’s care, recovery, or rehabilitation.” In other words,
an insurer is liable only for the cost of “products,
services and accommodations” “reasonably necessary”
“for an injured person’s care, recovery, or rehabilita-
tion.”
8
There is no dispute that Griffith is an “injured
person.” Thus, the question is whether food is reason-
ably necessary for his “care, recovery, or rehabilitation”
as an injured person. It is not contended here that the
food expenses at issue are a part of the insured’s
“recovery” or “rehabilitation.” Indeed, plaintiff does
not allege that the food has special curative properties
that might advance Griffith’s recovery or rehabilita-
7
Our dissenting colleagues fail to explain how they avoid the causation
requirement in MCL 500.3105(1). As we will explain, because plaintiff is
not on a special diet, his food expenses are not “for accidental bodily
injury,” and those expenses therefore are not recoverable in this case. It
is therefore not surprising that our dissenting colleagues avoid develop-
ing their analysis of MCL 500.3105(1), because their position is plainly
inconsistent with the unambiguous language of that provision.
8
In her concurring and dissenting opinion in Manley, Justice B
OYLE
read MCL 500.3107(1)(a) as imposing only three requirements: “1) the
charge must be reasonable, 2) the expense must be reasonably necessary,
and 3) the expense must be incurred.” 425 Mich at 169 (B
OYLE,
J
.,
concurring in part and dissenting in part). In addition to these require-
ments, however, the statute states that an “allowable expense” must be
“for” one of the following: (1) an injured person’s care, (2) his recovery, or
(3) his rehabilitation.
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tion. The key issue, therefore, is whether the food
expenses are necessary for Griffith’s “care.”
Because “care” can have several meanings depending
on the context in which it is used, the doctrine of
noscitur a sociis is helpful in discerning the meaning of
that term in this statute. This doctrine is premised on
the notion that “the meaning of statutory language,
plain or not, depends on context.” King v St Vincent’s
Hosp, 502 US 215, 221; 112 S Ct 570; 116 L Ed 2d 578
(1991).
9
Thus, under the doctrine of noscitur a sociis,
“ ‘ “ a word or phrase is given meaning by its context or
a setting.” ’ ” Koontz, supra at 318 (citations omitted).
As a general matter, “words and clauses will not be
divorced from those which precede and those which
follow.” Sanchick v State Bd of Optometry, 342 Mich
555, 559; 70 NW2d 757 (1955). When construing a
series of terms such as “care, recovery, or rehabilita-
tion,” we are guided by the principle “that words
grouped in a list should be given related meaning.”
Third Nat’l Bank in Nashville v Impac Ltd, Inc, 432 US
312, 322; 97 S Ct 2307; 53 L Ed 2d 368 (1977).
Generally, “care” means “protection; charge,” and
“to make provision.” Random House Webster’s College
Dictionary (2001). Thus, taken in isolation, the word
“care” can be broadly construed to encompass anything
that is reasonably necessary to the provision of a
person’s protection or charge. But we have consistently
held that “[c]ourts must give effect to every word,
phrase, and clause in a statute and avoid an interpre-
tation that would render any part of the statute sur-
9
See Koontz, supra at 318, quoting Brown v Genesee Co Bd of Comm’rs
(After Remand), 464 Mich 430, 437; 628 NW2d 471 (2001), quoting Tyler
v Livonia Pub Schools, 459 Mich 382, 390-391; 590 NW2d 560 (1999)
(“ ‘Contextual understanding of statutes is generally grounded in the
doctrine of noscitur a sociis: “[i]t is known from its associates,” see
Black’s Law Dictionary (6th ed), p 1060.’ ”).
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plusage or nugatory.” State Farm Fire & Cas Co v Old
Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715
(2002). Therefore, we must neither read “care” so
broadly as to render nugatory “recovery and rehabili-
tation” nor construe “care” so narrowly that the term is
mere surplusage.
10
“Care” must have a meaning that is
related to, but distinct from, “recovery and rehabilita-
tion.”
11
As an initial matter, it is important to note that the
statute does not require compensation for any item that
is reasonably necessary to a person’s care in general.
Instead, the statute specifically limits compensation to
charges for products or services that are reasonably
necessary “for an injured person’s care, recovery, or
rehabilitation.” (Emphasis added.) This context sug-
gests that “care” must be related to the insured’s
injuries.
This conclusion is supported by the fact that the
statute lists “care” together with “recovery” and “reha-
bilitation.” “Recovery” is defined as “restoration or
return to any former and better condition, esp. to
health from sickness, injury, addiction, etc.” Random
House Webster’s College Dictionary (2001). “Rehabili-
tate” is defined as “to restore or bring to a condition of
good health, ability to work, or productive activity.” Id.
Both terms refer to restoring an injured person to the
10
Our dissenting colleagues make the former error, construing “care”
so broadly that “recovery and rehabilitation” are mere surplusage. If
“care” means, as Justice K
ELLY
contends, “ ‘the provision of what is
necessary for the welfare and protection of someone,’ ” post at 547, then
“recovery and rehabilitation”—both of which are certainly necessary for
an injured person’s welfare—are stripped of any meaning.
11
See Sutherland Statutory Construction (6th ed, 2000 rev), § 47.16,
pp 265-267 (“[W]hen two or more words are grouped together, and
ordinarily have a similar meaning, but are not equally comprehensive,
the general word will be limited and qualified by the special word.”).
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condition he was in before sustaining his injuries.
Consequently, expenses for “recovery” or “rehabilita-
tion” are costs expended in order to bring an insured to
a condition of health or ability sufficient to resume his
preinjury life. Because “recovery” and “rehabilitation”
are necessary only when an insured has been injured,
both terms refer to products, services, and accommoda-
tions that are necessary because of injuries sustained
through the use of a motor vehicle.
“Care” must have a meaning that is broader than
“recovery” and “rehabilitation” but is not so broad as to
render those terms nugatory. As noted above, both
“recovery” and “rehabilitation” refer to an underlying
injury; likewise, the statute as a whole applies only to
an “injured person.” It follows that the Legislature
intended to limit the scope of the term “care” to
expenses for those products, services, or accommoda-
tions whose provision is necessitated by the injury
sustained in the motor vehicle accident.
12
“Care” is
broader than “recovery” and “rehabilitation” because it
may encompass expenses for products, services, and
accommodations that are necessary because of the
accident but that may not restore a person to his
preinjury state.
Griffith’s food costs here are not related to his “care,
recovery, or rehabilitation.” There has been no evidence
12
For instance, the cost associated with setting a broken leg would be
compensable under the term “recovery” because it is necessary to return
a person to his post-injury health, and the cost of learning to walk on a
prosthetic leg would be recoverable under the term “rehabilitation”
because it is necessary to bring the person back to a condition of
productive activity. Similarly, the cost of such items as a prosthetic leg or
special shoes would be recoverable under the term “care,” even though
the person will never recover or be rehabilitated from the injuries,
because the cost associated with such products or accommodations stems
from the injury.
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introduced that he now requires different food than he
did before sustaining his injuries as part of his treat-
ment plan. While such expenses are no doubt necessary
for his survival, they are not necessary for his recovery
or rehabilitation from the injuries suffered in the acci-
dent, nor are they necessary for his care because of the
injuries he sustained in the accident. Unlike prescrip-
tion medications or nursing care, the food that Griffith
consumes is simply an ordinary means of sustenance
rather than a treatment for his “care, recovery, or
rehabilitation.” In fact, if Griffith had never sustained,
or were to fully recover from, his injuries, his dietary
needs would be no different than they are now. We
conclude, therefore, that his food costs are completely
unrelated to his “care, recovery, or rehabilitation” and
are not “allowable expenses” under MCL
500.3107(1)(a).
13
13
Our dissenting colleagues do not pay sufficient regard to the context
in which the word “care” is used in MCL 500.3107(1)(a). They do not give
effect to the Legislature’s choice to use the term “care” in conjunction
with the terms “recovery” and “rehabilitation.” They also fail to give
effect to the statute’s specific reference to “an injured person’s care,
recovery, or rehabilitation.” As we have explained, this contextual back-
ground aids our effort to discern the meaning of the term “care” as used
in the statute.
Our dissenting colleagues would instead read the word “care” in a
vacuum, thereby allowing them to impose their preferred meaning
without attempting to discern the context in which the Legislature used
the term. Our dissenting colleagues’ failure to read the word “care” in
context renders the word devoid of any definitional limit. Let there be no
mistake—the implication of their interpretation is that any expense that
is necessary for a person’s general “care” is recoverable, regardless of
whether that expense bears any causal relationship to an “accidental
bodily injury arising out of the ownership, operation, maintenance or use
of a motor vehicle as a motor vehicle ....”MCL500.3105(1). Because
they would allow a plaintiff to recover expenses for normal, everyday food
consumed at home that does not differ from what an uninjured person
would eat, would they also allow recovery of housing costs and expenses
for clothing and toiletries, where those expenses do not bear any causal
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The parties focus on the distinction between food
costs for hospital food and food costs for an insured
receiving at-home care. Plaintiff contends that there is
no distinction between such costs. We disagree.
Food costs in an institutional setting are “benefits for
accidental bodily injury” and are “reasonably necessary
products, services and accommodations for an injured
person’s care, recovery, or rehabilitation.” That is, it is
“reasonably necessary” for an insured to consume hos-
pital food during in-patient treatment given the limited
dining options available. Although an injured person
would need to consume food regardless of his injuries,
he would not need to eat that particular food or bear the
cost associated with it. Thus, hospital food is analogous
to a type of special diet or select diet necessary for an
injured person’s recovery. Because an insured in an
institutional setting is required to eat “hospital food,”
such food costs are necessary for an insured’s “care,
recovery, or rehabilitation” while in such a setting.
relationship to an accidental bodily injury? Justice K
ELLY
seems to
concede that she would require no-fault insurers to pay for an injured
person’s “shelter” where that expense bears no causal relation to the
injuries. Post at 552.
It thus appears that Justice K
ELLY
would essentially invent a new
entitlement system by converting our no-fault law into a general welfare
scheme. Her new scheme would pay all expenses of everyday life, such as
mortgage payments and grocery bills, for anyone who has been injured in
a motor vehicle accident, even where those expenses do not arise from
injuries sustained in the accident. Justice K
ELLY
does not explain how she
would pay for her newly minted entitlement plan, but the effect of her
position would be to force Michigan citizens to make these general
welfare payments through increased mandatory insurance premiums.
Perhaps Justice K
ELLY
sincerely believes that our state’s citizens should
bear this new financial burden, but such a policy choice belongs to the
legislative branch of our government. In deciding the case before us, we
must honor the intent of the Legislature as reflected in the current
language of the no-fault act by applying the causation requirement
embodied in the provisions at issue.
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Once an injured person leaves the institutional setting,
however, he may resume eating a normal diet just as he
would have had he not suffered any injury and is no
longer required to bear the costs of hospital food, which
are part of the unqualified unit cost of hospital treat-
ment.
14
This reasoning can be taken a step further when
considering the costs of items such as an injured per-
son’s clothing, toiletries, and even housing costs. Under
plaintiff’s reasoning, because a hospital provided Grif-
14
Our dissenting colleagues opine that the language of the no-fault act
does not distinguish between food expenses incurred in a hospital and
food expenses at home. As we have explained, however, we believe this
distinction arises from the language in MCL 500.3105(1) and MCL
500.3107(1)(a). Food expenses in an institutional setting are “benefits for
accidental bodily injury,” and are “reasonably necessary products, ser-
vices and accommodations for an injured person’s care, recovery, or
rehabilitation,” given the limited dining options available in hospitals.
After all, an injured person is required to eat hospital food precisely
because his injuries require treatment in a hospital. By contrast, a person
who eats a normal diet at home does not incur food expenses that meet
the requirements of MCL 500.3105(1) and MCL 500.3107(1)(a).
Justice K
ELLY
also asks whether the majority is implying that hospital
food expenses would be reimbursable under MCL 500.3107(1)(a), but not
under MCL 500.3105(1). We have stated clearly, however, that food costs
in an institutional setting are “benefits for accidental bodily injury” and
are “reasonably necessary products, services and accommodations for an
injured person’s care, recovery, or rehabilitation.” See p 537 of this
opinion. In other words, we have quoted the language from both statutory
provisions in saying that such expenses are recoverable.
Finally, Justice K
ELLY
expresses concerns about allowing recovery for
food expenses in a hospital but not at home. It is the prerogative of the
Legislature, however, to determine whether the no-fault act should be
amended to allow recovery of food costs that are unrelated to an
accidental bodily injury, taking into account policy concerns such as those
expressed by Justice K
ELLY
and competing considerations such as the
increased costs of premiums for this mandatory form of insurance
coverage. This Court lacks both the institutional capacity to weigh the
competing policy considerations and the constitutional authority to
amend the no-fault act.
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fith with clothing while he was institutionalized, defen-
dant should continue to pay for Griffith’s clothing after
he is released. The same can be said of Griffith’s toiletry
necessities and housing costs. While Griffith was insti-
tutionalized, defendant paid his housing costs. Should
defendant therefore be obligated to pay Griffith’s hous-
ing payment now that he has been released when
Griffith’s housing needs have not been affected by his
injuries?
Under plaintiff’s reasoning, nothing would prevent
no-fault insurers from being obligated to pay for any
expenses that an injured person would otherwise be
provided in an institutional setting as long as they are
remotely related to the person’s general care. Plaintiff’s
interpretation of MCL 500.3107(1)(a) stretches the lan-
guage of the act too far and, incidentally, would largely
obliterate cost containment for this mandatory cover-
age. We have always been cognizant of this potential
problem
15
when interpreting the no-fault act, and we
are no less so today.
15
See, e.g., Shavers v Attorney General, 402 Mich 554, 607-611; 267
NW2d 72 (1978) (“In choosing to make no-fault insurance compulsory for
all motorists, the Legislature has made the registration and operation of
a motor vehicle inexorably dependent on whether no-fault insurance is
available at fair and equitable rates.”); Cruz v State Farm Mut Automo-
bile Ins Co, 466 Mich 588, 597; 648 NW2d 591 (2002) (recognizing that,
because no-fault coverage is mandatory, the Legislature has continually
sought to make it more affordable); Celina Mut Ins Co v Lake States Ins
Co, 452 Mich 84, 89; 549 NW2d 834 (1996) (“the no-fault insurance
system . . . is designed to provide victims with assured, adequate, and
prompt reparations at the lowest cost to both the individuals and the
no-fault system” [emphasis added]); O’Donnell v State Farm Mut Ins Co,
404 Mich 524, 547; 273 NW2d 829 (1979) (recognizing that the Legisla-
ture had provided for setoffs in the no-fault act: “Because the first-party
insurance proposed by the act was to be compulsory, it was important
that the premiums to be charged by the insurance companies be
maintained as low as possible. Otherwise, the poor and the disadvantaged
people of the state might not be able to obtain the necessary insurance.”).
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Moreover, in seeking reimbursement for food and
other such quotidian expenses, plaintiff is essentially
seeking a wage-loss benefit. Reimbursement for the
value of lost wages, however, is specifically addressed
elsewhere in the no-fault act. See MCL
500.3107(1)(b).
16
See also Popma v Auto Club Ins Ass’n,
446 Mich 460, 463, 471; 521 NW2d 831 (1994). Plain-
tiff’s construction of § 3107(1)(a) is strongly under-
mined by the Legislature’s express provision for, and
limitation on, wage-loss benefits in § 3107(1)(b).
Under MCL 500.3105 and MCL 500.3107(1)(a), de-
fendant is not required to reimburse plaintiff for the
food expenses at issue in this case. Such expenses are
not necessary “for accidental bodily injury” under MCL
500.3105. In addition, they are not “allowable ex-
penses” under MCL 500.3107(1)(a) because food is not
necessary for Griffith’s “care, recovery, or rehabilita-
tion” under that subsection. Because the rule an-
nounced in Reed, supra, is contrary to the language of
the above provisions, we overrule the Court of Appeals
decision in Reed.
V. CONCLUSION
We conclude that defendant is not required to
reimburse plaintiff for Griffith’s food costs under MCL
500.3105 and MCL 500.3107(1)(a) of the no-fault act.
Accordingly, we reverse the judgment of the Court of
Appeals.
T
AYLOR,
C.J., and Y
OUNG
and M
ARKMAN,
JJ., concurred
with C
ORRIGAN
,J.
16
This section provides, in part:
Work loss consisting of loss of income from work an injured
person would have performed during the first 3 years after the
date of the accident if he or she had not been injured.
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W
EAVER,
J. (dissenting). I dissent from the majority’s
holding that food expenses for plaintiff’s incapacitated
husband are not “allowable expenses” for which plain-
tiff should be paid under MCL 500.3107(1)(a). Rather,
consistently with Justice B
OYLE
’s concurrence in Man-
ley v Detroit Automobile Inter-Ins Exchange,
1
and with
the Court of Appeals opinion in Reed v Citizens Ins Co
of America,
2
I would conclude that the reasonable
charges incurred for plaintiff’s husband’s food while he
is cared for at home are recoverable as “allowable
expenses” under the statute. Therefore, I would affirm
the Court of Appeals decision in this case.
Under the statute, “allowable expenses” consist of
all reasonable charges incurred for reasonably necessary
products, services and accommodations for an injured
person’s care, recovery, or rehabilitation. [MCL
500.3107(1)(a).]
With this language, the Legislature provided a fairly
broad definition of “allowable expenses” to encompass
all the things that might reasonably be needed for an
injured person’s care, recovery, or rehabilitation. As
Justice K
ELLY
notes in her dissent, “[i]t is difficult to
deny that food is a product reasonably necessary for the
care of an invalid, however narrowly ‘care’ is defined.
Without nourishment, an injured person could not be
restored to health and could not properly be cared for.”
Post at 548. And, as stated by Justice B
OYLE
, there is
no principled basis for deciding that food provided to [the
plaintiff’s husband] at home is not as much an “allowable
expense” as the food provided in a licensed medical care
facility. Where a person who normally would require insti-
1
425 Mich 140, 168-169; 388 NW2d 216 (1986) (B
OYLE
, J., concurring in
part and dissenting in part).
2
198 Mich App 443, 452-453; 499 NW2d 22 (1993).
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,J.
tutional treatment is cared for at home in a quasi-
institutional setting made possible by the love and dedica-
tion of the injured victim’s family, the test for “allowable
expenses” should not differ from that set out in MCL
500.3107(a). [Manley, supra at 168-169 (citations omit-
ted).]
Therefore, it is reasonable to conclude that the cost
of plaintiff’s husband’s food is recoverable as “allow-
able expenses” under the no-fault act, and I would
affirm the Court of Appeals decision.
K
ELLY,
J. (dissenting). Today the Court reaches the
extraordinary conclusion that food is not always neces-
sary for an injured person’s care. The Court concludes
that food is “completely unrelated to [an injured per-
son’s] ‘care, recovery, or rehabilitation’ ” if provided in
a home, although it is both necessary and reimbursable
if provided in an institution. Ante at 536.
I disagree. The Court of Appeals decision that
reached the opposite conclusion twelve years ago, Reed
v Citizens Ins Co of America,
1
was correct and should
not be overturned. It is obvious to me that food should
continue to be an allowable expense under the no-fault
act wherever provided as long as reasonably necessary
to an injured person’s care.
THE NO-FAULT ACT
We review issues of statutory construction de novo.
Stewart v Michigan, 471 Mich 692, 696; 692 NW2d 376
(2004). In construing statutes, our purpose is to deter-
mine and implement the intent of the Legislature.
Sanders v Delton Kellogg Schools, 453 Mich 483, 487;
556 NW2d 467 (1996).
1
198 Mich App 443; 499 NW2d 22 (1993).
542 472 M
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The act under review here was passed to provide
benefits for victims of motor vehicle accidents without
regard to who was at fault. Substituting for certain tort
remedies that it abolished, the act created a comprehen-
sive and expeditious benefit system through insurance.
Shavers v Attorney General, 402 Mich 554, 579; 267
NW2d 72 (1978). This Court has determined that the
Legislature intended the no-fault act to be construed
liberally in favor of the insured.
2
Turner v Auto Club Ins
Ass’n, 448 Mich 22, 28; 528 NW2d 681 (1995).
MCL 500.3105(1)
In this case, Mr. Griffith was injured in an automo-
bile accident that rendered him unable to care for
himself. He remains injured. Therefore, without con-
test, he satisfies the requirement of § 3105(1), and his
insurer must pay him benefits. The issue here involves
the meaning of “benefits.”
Section 3105(1) requires:
Under personal protection insurance an insurer is liable
to pay benefits for accidental bodily injury arising out of
the ownership, operation, maintenance or use of a motor
vehicle as a motor vehicle, subject to the provisions of this
chapter.
On its face, this section requires an insurer to pay
benefits to its insured injured in a motor vehicle acci-
dent. The Legislature took pains to define at a different
section of the statute what benefits must be paid. MCL
500.3107(1)(a).
3
As the majority observes, § 3107(1)(a)
2
The majority’s decision today, taking food as it were from the mouth
of the injured insured convalescing at home, is anything but a liberal
construction in his favor.
3
In pertinent part, MCL 500.3107 provides:
[P]ersonal protection insurance benefits are payable for...
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is “the statutory provision at the center of this case.”
Ante at 527. Because the Legislature defined “benefits”
in § 3107(1)(a), it seems contradictory that it would
have given “benefits” a different definition in § 3105(1).
Yet, the majority reads § 3105(1) to mean that the
only benefits that a no-fault insurer is liable to pay are
those “causally connected to the accidental bodily
injury ....”Ante at 531. It is not Mr. Griffith’s injury,
it reasons, that occasioned his need for food. Hence the
cost of his food is not a covered expense.
The majority finds that § 3105 limits the benefits
made available in § 3107, despite the fact that the
courts have never before found such a limitation. The
majority defines “for” in the phrase “an insurer is
liable to pay benefits for accidental bodily injury” as
meaning “ ‘with the object or purpose of,’ ” “ ‘intended
to belong to or be used in connection with,’ ” and
“ ‘suiting the purposes or needs of.’ ” Ante at 531 n 6.
(Citation omitted.) From that it concludes that these
definitions “imply” that the benefit an injured party
seeks must be directly caused by the injury. Not only is
the majority’s reading of § 3105 novel and unprec-
edented, it flies in the face of our time-honored deter-
mination to liberally construe the no-fault act for the
benefit of the insured.
(a) Allowable expenses consisting of all reasonable charges
incurred for reasonably necessary products, services, and accom-
modations for an injured person’s care, recovery, or rehabilita-
tion....
(b)Workloss....
(c) Expenses...reasonablyincurred in obtaining ordinary and
necessary services in lieu of those that, if he or she had not been
injured, an injured person would have performed....
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The word “for” in the English language has many
nuances in its meaning. I feel confident that the
Legislature added § 3107(1)(a) for the purpose of de-
fining “benefits” in § 3105. On the basis of that belief,
I find that the definition of “for” in § 3105 that best
accords with the Legislature’s intent is “by reason of.”
Random House Webster’s College Dictionary (2001).
Hence, § 3105 should be read to mean that benefits are
payable “by reason of” accidental bodily injury.
Reading § 3105 in this way ensures that the only
limitations placed on “benefits” for an insured injured
in an auto accident are those clearly stated by the
Legislature in § 3107. My belief is that, if the Legisla-
ture intended that the sole benefits payable for an
insured’s injury were those directly arising therefrom,
it would have said so. Also, it would not have required
at § 3107 payment for so broad a category as “all
reasonable charges incurred for reasonably necessary
products, services and accommodations for an injured
person’s care, recovery, or rehabilitation.”
Additionally, the majority’s reading of the act is
irrational. The majority believes that food provided in
the hospital qualifies as a benefit under the act.
However, under its reading of § 3105, food would be
excluded: the need for it does not arise from the injury.
The majority explains that, in an institution, one has
little choice what food is served. But it fails to explain
how that fact transforms hospital food into an expense
arising from an accident.
If the Legislature had intended, for example, that
ground beef be compensable only if no other entrée
were offered, it should have written something to make
that clear. The majority will search in vain for some
indication in the act that food, or any item, can qualify
for “benefits for an accidental bodily injury” if fur-
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nished in the hospital but not at home. Absolutely
nothing in either § 3105 or § 3107 allows for that
distinction.
The difficulty the majority has in providing a con-
vincing answer to this question illustrates the weak-
ness of its conclusion. Its reading of § 3105 is, at its
foundation, unsound. The majority criticizes my
analysis of § 3105(1) as inadequate and undeveloped.
Ante at 532, n 7. It would be inadequate only if I agreed
with the majority’s choice to create two requirements
where there is only one in § 3105. I have taken my own
analysis of § 3105(1) to its logical conclusion. It is not
the same analysis as the majority’s, but it is more
faithful to the text of the statute. Contrary to Justice
C
ORRIGAN
’s belief, I have set forth a principled basis for
my analysis. It includes a plain-language reading of
§§ 3105(1) and 3107(1)(a).
MCL 500.3107(1)(a)
The majority finds that Douglas Griffith fails to
qualify not only under § 3105(1) but also under
§ 3107(1)(a). In construing § 3107(1)(a), first it goes to
the dictionary to interpret the meaning of “care.”
As is frequently the case, here a dictionary alone
does not clarify the Legislature’s intent. “Care” has
several definitions. The majority chooses “protection”
or “charge” as the appropriate one. But the word can
also be defined as “the provision of what is necessary
for the welfare and protection of someone or some-
thing.” Compact Oxford English Dictionary.
It is clear that, when consulting a dictionary in
performance of the interpretative task, one is normally
required to make a choice among several definitions. It
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is nothing less than a pretense to maintain that, in
enforcing a statute “as written,” a court does not make
definitional choices.
The language of § 3107(1)(a) is broad. Yet, the
majority ultimately limits the meaning of “care” to the
care needed for recovery and rehabilitation, ascribing
to it a restorative meaning. The logical consequence of
using this restrictive definition demonstrates that it is
poorly chosen. It reads “care” out of the sentence.
Given that “recovery and rehabilitation” are in the
sentence with “care,” the effect of the majority’s
choice of definitions turns “care” into a mere redun-
dancy. This approach violates our obligation when
interpreting statutes to try to give every word mean-
ing and treat no word as surplusage. Altman v Merid-
ian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992).
My reading of the statute gives independent mean-
ing to the word “care.” Under the doctrine of noscitur
a sociis, the meaning of questionable words may be
ascertained by reference to the meaning of other words
associated with it. Applying this doctrine, “care” fits
with “recovery” and “rehabilitation” when “care” is
interpreted broadly to mean “the provision of what is
necessary for the welfare and protection of someone.”
The Legislature intended that an injured person’s
needs be furnished (“care”) until “recovery” has been
accomplished through “rehabilitation.”
In some cases, such as where a motorist is cata-
strophically injured, recovery and rehabilitation may
not be an achievable goal. In these cases, the Legisla-
ture requires that the injured individual receive all
products and services reasonably necessary for his or
her continuing care. The act’s comprehensive lan-
guage demonstrates the Legislature’s intent to ensure
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that benefits are provided in every instance where a
motorist suffers injury.
THE LEGISLATURE’S INTENTION WITH RESPECT TO FOOD
It is difficult to deny that food is a product reason-
ably necessary for the care of an invalid, however
narrowly “care” is defined. Without nourishment, an
injured person could not be restored to health and
could not properly be cared for. In fact, without it, a
person’s physical well-being would be immediately
threatened. A finding that food is necessary for “care”
accords with the purpose of the no-fault act: to provide
benefits needed by someone injured in an automobile
accident.
There is a limitation on those benefits in the act: all
benefits reasonably necessary. Given the wide variety of
circumstances under which injured parties seek no-
fault benefits, the act provides for wide latitude in
determining what benefits are reasonably necessary in
a given situation. Unfortunately, the majority limits the
wide latitude provided by the Legislature by restric-
tively reading the word “care.”
It is noteworthy that the Legislature did not ex-
pressly limit the expenses recoverable in no-fault cases
to those that the injured person did not require before
the injury. It could have included, but did not, a clause
such as “benefits are payable except for those that were
reasonably necessary for the care of the person before
the injury.” It is the majority, not the Legislature, that
writes this limitation into the act.
The majority concludes that food is not necessary for
the care of Mr. Griffith because he requires food, injured
or not. It adds that food has nothing to do with an
injured party’s “care, recovery, or rehabilitation.” It
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further reasons that food is not an allowable expense
when consumed in the home, although it is an allowable
expense in an institution.
4
This is not a reasonable construction of the statutory
language. Nothing in the language of the no-fault act
indicates that whether a home-based expense is allow-
able depends on whether an uninjured person has the
same expense. The act’s language mandates that the
appropriate question is whether the injured person
reasonably incurred the questioned expense as part of
his or her care, recovery, or rehabilitation.
The logic in the majority’s reasoning is, charitably
speaking, illusory. If an automobile accident victim is
hospitalized, the reasonable cost of his or her food is a
covered expense under § 3107(1)(a). If another automo-
bile accident victim requires the same care, but receives
it at home, the reasonable cost of his or her food likewise
should be a covered expense under § 3107(1)(a).
I agree with Justice B
OYLE
’s partial concurrence in
Manley v Detroit Automobile Inter-Ins Exchange,
5
and
the Court of Appeals decision in Reed: no principled
distinction justifies a holding that, where a patient is
institutionalized, food is a reasonably necessary ex-
pense, but if he or she is home receiving the same care,
it is not. Moreover, the plain language of the no-fault act
makes no such distinction.
The majority claims that its ruling is necessary to
keep down the cost of no-fault insurance. However, the
4
The majority claims a distinction exists where an injured person is
required to eat hospital food because his or her injuries require treatment
in a hospital. This ignores the closely related situation presented in this
case. A catastrophically injured individual remains injured and continues
to require institutional treatment, but does not necessarily require the
treatment in a hospital or long-term care facility.
5
425 Mich 140, 168; 388 NW2d 216 (1986).
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record contains no evidence to support that claim.
There is nothing to indicate that no-fault insurance has
become unaffordable because of in-home food expenses
that insurers until now have been required to provide to
catastrophically injured policyholders.
6
The facts of Mr. Griffith’s case illustrate the complex-
ity of the issue before us and why the Legislature could
not have intended the interpretation made by the
majority. Mr. Griffith is receiving one hundred percent
institutional care, albeit in a home setting. He resides in
his own home and is being cared for solely by medical
professionals, his wife having been placed in a nursing
home.
Thus, family members play no role in cooking for
Douglas Griffith or in providing his food. There is no
evidence that his meals differ in any respect from those
he earlier received in the hospital. Because food in both
settings is necessary for his care, both should be com-
pensable under the act.
The only distinction between Mr. Griffith’s hospital
care and his in-home care is the location at which he
receives it. The language of the no-fault act does not
6
The majority claims that my interpretation of the statute is based on
policy considerations. But, in this case, I base my interpretation on the
language found in the no-fault act. The Legislature has already made the
policy decision. My construction of the statute is in accordance with that
decision. Nonetheless, policy considerations are frequently appropriate.
Certainly, the decision in this case has numerous policy implications. For
example, the majority appears concerned that no-fault costs be kept low.
This is a policy concern. In that regard, I fail to see why my interpretation
of the law, which has prevailed at least since 1993, would increase current
no-fault premiums. One would expect that no-fault providers have been
factoring the potential for these costs into their premiums for years.
Perhaps this state’s drivers can expect that their premiums will decrease
in response to the majority’s opinion today. After all, Michigan drivers
will no longer be entitled to the same level of benefits that they have paid
for in premiums during the past twelve years.
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limit expenses only to those incurred in a hospital
setting. This is a new rule created by the Court.
The majority attempts to buttress its interpretation
by asserting that it has discerned the policy choice made
by the Legislature. It insists that my reading is my own
policy choice that cannot be accurate unless the Legis-
lature amends the no-fault act. This is a logical fallacy
that assumes the majority’s conclusion as its premise.
Also faulty is the majority’s assertion that my read-
ing of the statute “essentially invent[s] a new entitle-
ment system.” Ante at 537 n 13. To the contrary, my
reading of the statute conforms with the law as inter-
preted for at least the past twelve years.
The Court of Appeals made the same application.
While the majority’s accusations and appeal to cost
concerns create a rhetorical flourish, it is the majority,
and not I, that advocates a drastic change in established
law.
Let there be no mistake in this: motorists, required to
purchase no-fault insurance in order to drive in Michi-
gan, now have one less resource available to them
because of the majority’s restrictive reading of the no-
fault act. The majority holds that food, as a matter of law,
is never reasonably necessary for one’s care, recovery, or
rehabilitation outside a hospital, at least absent a special
diet.
A proper reading of the text belies the majority’s
conclusions. There is no need to require the Legislature
to amend its decision that all expenses should be
covered as long as reasonably necessary to an injured
person’s care, recovery, and rehabilitation.
FURTHER IMPLICATIONS OF THE MAJORITY’S DECISION
The majority forces a harsh dilemma on insured
individuals injured in automobile accidents: remain in
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an institution, if insurance coverage is available, or
convalesce at home where they or others are burdened
with the cost of their food. Unfortunately for impover-
ished families, the only choice may be to remain in
institutional care.
7
Reed has been the rule of law in Michigan for twelve
years. There are unacknowledged alarming implica-
tions in overruling it. If we apply the majority’s reason-
ing about in-home food, is shelter at home an allowable
expense? An uninjured person requires shelter. The
majority incentivizes no-fault insurers to refuse to
reimburse these and other expenses in the future, even
though they are without dispute reasonably necessary
for an injured person’s care.
The majority opines that reimbursement for in-home
food is a form of wage-loss benefits. However, it is
unable to substantiate that statement with a showing
that any legislation equates wage-loss benefits with
payment for care of the injured. Wage-loss benefits exist
to replace lost income, not as reimbursement for ex-
penses incurred.
Furthermore, the no-fault act limits wage-loss ben-
efits to three years. But the insurer’s obligation to
provide for the care of an injured person can extend
over the person’s lifetime. Therefore, equating the
provision of food with wage loss is inaccurate. The
Legislature struck a very definite compromise on the
duration of wage-loss benefits that stands in contrast
to the lifetime care to which an injured person is
entitled.
7
Interestingly, although the majority expresses its concern that costs
for insurers be minimized, its decision arguably helps to increase those
costs. In the future, the care of patients who remain institutionalized
during the period they once might have returned home is likely to be
more expensive.
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The majority
8
finds that §§ 3105 and 3107 “impose
two separate and distinct requirements” before ex-
penses are compensable under the act. It finds that Mr.
Griffith’s expenses for in-home food fail to satisfy the
requirements of both sections. They fail to satisfy
§ 3107 because they were not necessary for his care.
They fail to satisfy § 3105 because they were not caused
by the accidental bodily injury.
The majority informs us that Mr. Griffith’s food,
when provided in the hospital, did satisfy § 3107. Are
we to infer that the hospital food was nonetheless not a
reimbursable expense because it did not satisfy § 3105?
9
Clearly, the food was not an expense caused by the
accidental bodily injury when furnished either in the
hospital or at home.
Finally, the majority makes no provision for those
who in the past have incurred ongoing expenses and
assumed ongoing burdens in reliance on the availability
8
Ante at 530.
9
After quoting both statutory provisions relevant to the present
analysis, the majority concludes that hospital food remains a covered
expense. But merely quoting the statutory language does not resolve the
question.
According to the majority, an injured person’s food is not “for” an
accidental bodily injury because the need for food was not caused by the
automobile accident. By the majority’s logic, even one who is hospitalized
is not entitled to food expenses because those expenses are as necessary
to an uninjured person as to an injured person. This logic is equally
applicable regardless of the injured person’s physical location.
Contrary to the majority’s assertion, I do not express policy concerns
about allowing recovery for food expenses in a hospital, but not for the
same costs at home. Rather, my concern is the lack of a logical basis for
the distinction the majority seeks to create. Instead of the majority’s
artificial distinction, I would apply the clear language of § 3107(1)(a) and
allow recovery for products reasonably necessary to “an injured person’s
care, recovery, or rehabilitation.” I would not decide, as the majority does,
that as a matter of law at-home food expenses are never reasonably
necessary to one’s care, recovery, or rehabilitation.
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of reimbursements for in-home food. Because its hold-
ing is not limited to new cases, many whose caregivers
are already receiving reimbursement for in-home food
may be forced to return to institutional settings.
CONCLUSION
The majority’s conclusion is that food is unnecessary
to one’s “care, recovery, or rehabilitation” outside an
institution, although necessary inside an institution. It
makes a distinction without a difference. Not only is it
illogical, no statutory basis exists to distinguish the
reimbursability of the cost of institutional food from the
reimbursability of the cost of in-home food.
I would affirm the trial court and the Court of
Appeals decisions and leave Reed intact. Regardless of
the choice of meanings ascribed to the word “care,” the
Legislature’s intent had to be that food is an allowable
expense for injured automobile accident victims conva-
lescing at home.
C
AVANAGH,
J., concurred with K
ELLY
,J.
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PEOPLE v HENDRICK
Docket No. 126371. Argued April 12, 2005 (Calendar No. 4). Decided
June 14, 2005.
Darin Hendrick pleaded guilty in the Wayne Circuit Court of
attempted first-degree home invasion and was sentenced to a
five-year term of probation, with the first year to be served in jail.
Less than a month later, the defendant pleaded guilty of possession
of a Molotov cocktail and was again sentenced to five years of
probation, with the first year to be served in jail. The defendant
was arrested for violating the terms of his probation by possessing
a shotgun on a public street, and the court, Vera Massey Jones, J.,
revoked probation and sentenced the defendant to one to five years
of imprisonment for attempted home invasion and ten to twenty
years of imprisonment for possession of a Molotov cocktail. The
court stated that the legislative sentencing guidelines, which
provided for a minimum term of twelve to forty-eight months for
the Molotov cocktail conviction, does not apply to sentences
imposed after probation violation. The Court of Appeals dismissed
the defendant’s claim of appeal and denied his delayed application
for leave to appeal. The Supreme Court, in lieu of granting leave,
remanded the case to the Court of Appeals for consideration as on
leave granted. 468 Mich 918 (2003). On remand, the Court of
Appeals, C
AVANAGH
,P.J., and G
AGE
and Z
AHRA
, JJ., held that the
sentencing guidelines apply to sentences imposed after a probation
violation, vacated the sentence, and remanded the case to the trial
court for resentencing. 261 Mich App 673 (2004). The Supreme
Court granted the prosecution’s application for leave to appeal.
471 Mich 914 (2004).
In a unanimous opinion by Justice C
ORRIGAN
, the Supreme
Court held:
The legislative sentencing guidelines apply to sentences im-
posed after the revocation of probation. The defendant is entitled
to be resentenced under the legislative sentencing guidelines. A
defendant’s conduct while on probation may be considered as a
substantial and compelling reason for departure from the legisla-
tive sentencing guidelines. The judgment of the Court of Appeals
2005] P
EOPLE V
H
ENDRICK
555
must be affirmed in part and reversed in part, the defendant’s
sentence must be vacated, and the matter must be remanded to
the trial court for resentencing.
1. The Court of Appeals correctly held that the legislative
sentencing guidelines apply to a sentence imposed after a proba-
tion violation and that the acts giving rise to the probation
violation may constitute substantial and compelling reasons to
depart from the guidelines. The Court of Appeals erred in holding
that the acts giving rise to the probation violation in this case were
already considered in connection with the prior record variables
and offense variables.
2. The legislative sentencing guidelines apply to certain enu-
merated felonies committed on or after January 1, 1999, whether
or not the sentence is imposed after probation revocation. MCL
777.1 et seq.; MCL 769.34(2). It is undisputed that the felonies the
defendant committed are among the enumerated felonies and that
they were committed after January 1, 1999.
3. Although the trial court considered several reasons for the
sentence it imposed, it did not sufficiently articulate its reasons on
the record because it believed that the sentencing guidelines did
not apply to sentences imposed after revocation of probation. Some
of the trial court’s reasons are considered in the scoring of the
prior record variables and offense variables while others are not.
In addition, the trial court did not consider the circumstances
surrounding the probation violation in scoring the prior record
variables and offense variables.
Court of Appeals judgment affirmed in part and reversed in
part, sentence vacated, and case remanded to the trial court for
resentencing.
S
ENTENCES —
S
ENTENCING
G
UIDELINES —
P
ROBATION
R
EVOCATIONS
.
The legislative sentencing guidelines apply to sentences imposed
after the revocation of probation for conviction of certain enumer-
ated felonies committed on or after January 1, 1999; a defendant’s
conduct while on probation can be considered as a substantial and
compelling reason for departure from the sentencing guidelines
(MCL 777.1 et seq.; MCL 769.34[2]).
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, Kym L. Worthy, Prosecuting Attor-
ney, Timothy A. Baughman, Chief of Research, Train-
ing, and Appeals, and Carolyn M. Breen, Assistant
Prosecuting Attorney, for the people.
556 472 M
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555 [June
State Appellate Defender (by Marla R. McCowan and
Brandy Y. Johnson) for the defendant.
C
ORRIGAN,
J. In this case, we consider whether the
legislative sentencing guidelines apply to sentences
imposed after a probation violation and whether a
defendant’s conduct while on probation can be consid-
ered as a substantial and compelling reason for depar-
ture from the legislative sentencing guidelines.
The legislative sentencing guidelines apply to cer-
tain enumerated felonies committed on or after Janu-
ary 1, 1999. MCL 777.1 et seq.; MCL 769.34(2). The
language of MCL 769.34(2) is very clear. It lists no
exceptions. Thus, the legislative guidelines would ap-
ply to defendant’s sentence, even if the sentence
follows the imposition and revocation of probation.
Further, MCL 771.4 states that if probation is
revoked, the court may sentence the probationer to the
same penalty as if probation had never been granted,
but does not require that the same penalty be imposed.
Thus, the sentencing court is not precluded from
considering events surrounding the probation viola-
tion when sentencing the defendant on the original
offense.
The Court of Appeals
1
correctly held that the sen-
tencing guidelines apply to sentences imposed after a
probation violation and that acts giving rise to the
probation violation may constitute substantial and
compelling reasons to depart from the guidelines. It
incorrectly held that the acts giving rise to the proba-
tion violation in this case were already considered in
connection with the prior record variables and offense
variables. We thus affirm in part and reverse in part the
1
261 Mich App 673; 683 NW2d 218 (2004).
2005] P
EOPLE V
H
ENDRICK
557
judgment of the Court of Appeals, vacate the sentence,
and remand this case to the trial court for resentencing.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
On March 20, 2000, defendant pleaded guilty to a
charge of attempted first-degree home invasion, MCL
750.92; MCL 750.110a(2). Defendant was sentenced to
a five-year term of probation, with the first year to be
served in jail. On April 9, 2001, defendant pleaded
guilty to a charge of possession of a Molotov cocktail,
MCL 750.211a. The trial court again sentenced him to a
five-year term of probation, with the first year to be
served in jail. On July 23, 2001, defendant was arrested
yet again for violating the terms of his probation by
possessing a shotgun while walking on a public street.
On August 23, 2001, the trial court revoked defen-
dant’s two probationary sentences and sentenced him
to one to five years of imprisonment for the attempted
home invasion and ten to twenty years of imprisonment
for possession of a Molotov cocktail. The legislative
sentencing guidelines range for the Molotov cocktail
conviction was twelve to forty-eight months in prison,
thus making defendant’s ten-year minimum sentence a
departure if the guidelines applied. The trial court,
however, did not believe that the guidelines applied to
sentences imposed after probation violation. Accord-
ingly, it did not apply the guidelines in determining
defendant’s sentence.
The Court of Appeals denied leave to appeal. In lieu
of granting leave to appeal, we remanded this case to
the Court of Appeals for consideration as on leave
granted and directed it to consider (1) whether the
legislative sentencing guidelines apply to sentences
imposed after a probation violation, and (2) if not,
whether a sentencing court may consider the principles
558 472 M
ICH
555 [June
of proportionality discussed in People v Milbourn, 435
Mich 630; 461 NW2d 1 (1990).
2
The Court of Appeals held that the legislative sen-
tencing guidelines were indeed applicable to sentences
imposed after probation revocation. The panel further
noted that in “exceptional cases,” the circumstances
causing the probation revocation could constitute a
“substantial and compelling” reason for an upward
departure. The Court of Appeals, however, remanded
for resentencing, concluding that the reasons articu-
lated by the trial court were not “substantial and
compelling.”
The prosecutor sought leave to appeal, contending
that the legislative sentencing guidelines do not apply
to sentences imposed after a probation violation. In the
alternative, the prosecution argued that if the guide-
lines were applicable, the conduct constituting the
probation violation provided an automatic substantial
and compelling reason for departure from the guide-
lines.
We granted the prosecution’s application for leave to
appeal.
3
II. STANDARD OF REVIEW
Whether the legislative sentencing guidelines apply
to sentences imposed after probation revocation is a
question of law that we review de novo. People v
Rodriguez, 463 Mich 466, 471; 620 NW2d 13 (2000).
Similarly, whether conduct resulting in the revocation
of probation may constitute a “substantial and compel-
ling” reason for an upward departure from the legisla-
2
468 Mich 918 (2003).
3
471 Mich 914 (2004).
2005] P
EOPLE V
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ENDRICK
559
tive sentencing guidelines is also a question of law
subject to review de novo. Id.
III. ANALYSIS
A. THE LEGISLATIVE SENTENCING GUIDELINES APPLY TO
SENTENCES IMPOSED AFTER PROBATION REVOCATION.
The legislative sentencing guidelines apply to cer-
tain enumerated felonies committed on or after Janu-
ary 1, 1999. MCL 777.1 et seq.; MCL 769.34(2).
4
It is
undisputed that the guidelines apply to the felonies
defendant committed in this case—possession of a Mo-
lotov cocktail and attempted home invasion. It is also
undisputed that defendant’s underlying crimes were
committed after January 1, 1999. Thus, the legislative
sentencing guidelines apply, even if the sentence follows
the imposition and revocation of probation, because the
language of MCL 769.34(2) is clear and lists no excep-
tions. We therefore agree with the Court of Appeals that
the guidelines apply to all enumerated felonies commit-
ted on or after the effective date, whether or not the
sentence is imposed after probation revocation.
5
B. THE ACT GIVING RISE TO THE PROBATION
VIOLATION MAY PROVIDE A SUBSTANTIAL AND
COMPELLING REASON TO DEPART FROM THE
LEGISLATIVE SENTENCING GUIDELINES.
MCL 771.4, which governs probation and revocation
of probation, states:
4
MCL 769.34(2) provides, in relevant part, that “the minimum
sentence imposed by a court of this state for a felony enumerated in part
2 of chapter XVII committed on or after January 1, 1999 shall be within
the appropriate sentence range under the version of those sentencing
guidelines in effect on the date the crime was committed.”
5
The judicially created sentencing guidelines, however, do not apply to
probation revocation cases.
560 472 M
ICH
555 [June
It is the intent of the legislature that the granting of
probation is a matter of grace conferring no vested right
to its continuance. If during the probation period the
sentencing court determines that the probationer is likely
again to engage in an offensive or criminal course of
conduct or that the public good requires revocation of
probation, the court may revoke probation. All probation
orders are revocable in any manner the court that im-
posed probation considers applicable either for a violation
or attempted violation of a probation condition or for any
other type of antisocial conduct or action on the proba-
tioner’s part for which the court determines that revoca-
tion is proper in the public interest. Hearings on the
revocation shall be summary and informal and not subject
to the rules of evidence or of pleadings applicable in
criminal trials. In its probation order or by general rule,
the court may provide for the apprehension, detention,
and confinement of a probationer accused of violating a
probation condition or conduct inconsistent with the
public good. The method of hearing and presentation of
charges are within the court’s discretion, except that the
probationer is entitled to a written copy of the charges
constituting the claim that he or she violated probation
and to a probation revocation hearing. The court may
investigate and enter a disposition of the probationer as
the court determines best serves the public interest. If a
probation order is revoked, the court may sentence the
probationer in the same manner and to the same penalty as
the court might have done if the probation order had never
been made. This section does not apply to a juvenile placed
on probation and committed under section 1(3) or (4) of
chapter IX to an institution or agency described in the
youth rehabilitation services act, 1974 PA 150, MCL
803.301 to 803.309. [Emphasis added.]
The sentence at issue in MCL 771.4 is clearly permis-
sive, not mandatory. It states that “if” probation is
revoked, the court “may” sentence the defendant as if
probation had never been granted. While the sentenc-
ing court may sentence the probationer in the same
2005] P
EOPLE V
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ENDRICK
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manner and to the same penalty, nothing in the statute
requires it to do so. In fact, the statute places an
affirmative obligation on the trial court to take only two
actions—to provide the probationer with a written copy
of the charges constituting the probation violation and
to conduct a probation revocation hearing.
Thus, the court may continue, extend, or revoke
probation. In the event that the court revokes a defen-
dant’s probation, it may sentence the defendant “in the
same manner and to the same penalty as the court
might have done if the probation order had never been
made.” A judge, however, is not required to sentence the
defendant “in the same manner.”
6
Further, the Legislature did not alter our jurispru-
dence on probation in the statutory codification of
sentencing guidelines.
7
That is, a probation violation
does “not constitute a separate felony....”Id. at 482.
Rather, “revocation of probation simply clears the way
for a resentencing on the original offense.”
8
Defendant
here is thus being sentenced on the original offense—
possession of a Molotov cocktail. Without a mandate to
impose a sentence on the probationer in the same
manner and to the same penalty that could have been
imposed if the probation order had never been made, it
is perfectly acceptable to consider postprobation factors
6
MCL 771.7(1), which deals with revocation of probation for a juvenile
following certain convictions, specifically requires a trial court to “order
the juvenile committed to the department of corrections for a term of
years that does not exceed the penalty that could have been imposed for
the offense for which the juvenile was originally convicted and placed on
probation.” (Emphasis added.) The Legislature could have incorporated
similar language in MCL 771.4 if it intended to preclude the trial court
from sentencing adult probationers to a term of years that exceeds the
penalty that could have originally been imposed, but it did not do so.
7
People v Kaczmarek, 464 Mich 478, 482; 628 NW2d 484 (2001).
8
Id. at 483.
562 472 M
ICH
555 [June
in determining whether substantial and compelling
reasons exist to warrant an upward departure from the
legislative sentencing guidelines.
9
Of course, not every probation violation and revoca-
tion warrants an upward departure. A trial court has
broad latitude in deciding whether to revoke probation.
It has less latitude in imposing a sentence in excess of the
guidelines. The sentencing court must always follow the
requirements set forth in MCL 769.34, as interpreted in
People v Babcock, 469 Mich 247; 666 NW2d 231 (2003).
MCL 769.34(3) permits a court to “depart from the
appropriate sentence range established under the sen-
tencing guidelines...ifthecourt has a substantial and
compelling reason for that departure and states on the
record the reasons for departure.” Babcock defines a
“substantial and compelling” reason as requiring an
objective and verifiable reason that “keenly” or “irresist-
ibly” grabs the court’s attention and is of “considerable
worth.” Moreover, Babcock requires that the “substan-
tial and compelling” reasons articulated by the trial
court justify that particular departure. The Court of
Appeals held that the trial court’s reasons for departing
from the sentencing guidelines were not substantial and
compelling because they were already considered when
scoring the prior record variables and offense variables.
C. APPLICATION OF BABCOCK TO DEFENDANT’S
POSTPROBATION VIOLATION SENTENCE.
Although the trial court considered several reasons
for its upward departure, it did not sufficiently articu-
9
We recognize that in Kaczmarek, supra at 483, we noted that “ ‘[i]f a
judge finds that a probationer violated his probation by committing an
offense, the probationer is neither burdened with a new conviction nor
exposed to punishment other than that to which he was already ex-
posed....’”(Citation omitted.) The issue in Kaczmarek, however, was
whether a probation violation is a “crime”; it was not, as it is in this case,
how a defendant should be sentenced after violating probation.
2005] P
EOPLE V
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ENDRICK
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late its reasons on the record, because it believed that
Babcock did not apply to sentences imposed after revo-
cation of probation. Some of the trial court’s reasons
were already considered in scoring the prior record
variables and offense variables.
10
Some of the trial
court’s reasons, however, were not considered in con-
nection with the prior record variables and offense
variables, such as defendant’s intent to explode the
Molotov cocktail in order to harm his sister. Further,
the trial court did not consider the circumstances
surrounding defendant’s probation violation–defen-
dant’s possession of a shotgun while walking down the
street near his sister’s home–in scoring the variables.
The Court of Appeals erroneously implied that all of
defendant’s conduct noted by the trial court was con-
sidered in scoring the prior record variables and offense
variables. Because of this erroneous conclusion and
because the trial court did not apply the legislative
sentencing guidelines in imposing defendant’s sen-
tence, we remand this case to the trial court for resen-
tencing. Upon resentencing, the trial court may con-
sider whether the conduct underlying defendant’s
probation violation constitutes a substantial and com-
pelling reason to depart from the legislative sentencing
guidelines.
10
The trial court referred to defendant’s prior criminal history and
recidivist history as factors to support defendant’s sentence. These
factors, however, were included in the scoring of the prior record
variables and offense variables and, thus, were insufficient to support an
upward departure absent a finding by the trial court that the factors were
given inadequate weight when scored. MCL 769.34(3)(b). The trial court
did not believe the legislative sentencing guidelines applied to sentences
imposed after revocation of probation and, thus, did not deem it neces-
sary to state that the above factors were given inadequate weight. To the
extent that the trial court failed to apply the guidelines when imposing
defendant’s sentence, it erred.
564 472 M
ICH
555 [June
IV. CONCLUSION
The legislative sentencing guidelines apply to sen-
tences imposed after probation revocation. Thus, defen-
dant is entitled to be resentenced under the legislative
sentencing guidelines. Further, a defendant’s conduct
while on probation can be considered as a substantial
and compelling reason for departure from the legisla-
tive sentencing guidelines. Defendant’s sentence is thus
vacated and this matter is remanded to the trial court
for further proceedings consistent with this opinion.
T
AYLOR,
C.J., and C
AVANAGH,
W
EAVER,
K
ELLY
,Y
OUNG,
and M
ARKMAN,
JJ., concurred with C
ORRIGAN
,J.
2005] P
EOPLE V
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ENDRICK
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CASCO TOWNSHIP v SECRETARY OF STATE
FILLMORE v SECRETARY OF STATE
Docket Nos. 126120, 126369. Argued March 8, 2005 (Calendar Nos. 2, 3).
Decided June 14, 2005. Rehearing denied in Fillmore at 473 Mich
1205.
Casco Township, Columbus Township, and certain residents of those
townships brought an action in the Ingham Circuit Court seeking
a writ of mandamus requiring the Secretary of State to authorize
a referendum, pursuant to a petition, on the detachment of land
from the city of Richmond and the addition of part of the land to
Casco Township and the remainder to Columbus Township. The
court, Peter D. Houk, J., denied the writ, agreeing with the
Secretary of State that the Home Rule City Act, MCL 117.1 et seq.,
did not allow a single election for a detachment of land from one
city for addition to two townships. The Court of Appeals, C
OOPER
and C
AVANAGH
,JJ.(Z
AHRA
,P.J., dissenting), affirmed. 261 Mich App
386 (2004).
Fillmore Township and certain electors from Fillmore Township,
Holland Charter Township, Park Township, Laketown Township,
and the city of Holland filed a complaint for mandamus against the
Secretary of State in the Court of Appeals, seeking to compel the
Secretary of State to authorize a referendum, pursuant to a
petition, on the detachment of land from the city of Holland and
the addition of the land in separate parts to each of the four
townships. The matter was held in abeyance pending the decision
in Casco Twp v Secretary of State, 261 Mich App 386 (2004), and
the complaint for mandamus was denied by the Court of Appeals,
G
RIFFIN
,P.J., and M
ETER
and S
CHUETTE
, JJ., following the decision in
Casco Twp. Unpublished order, entered May 6, 2004 (Docket No.
245640).
The Supreme Court granted the plaintiffs’ applications for
leave to appeal in both cases and ordered the cases to be argued
and submitted together. 471 Mich 890 (2004).
In an opinion by Justice C
AVANAGH
, joined by Chief Justice
T
AYLOR
, and Justices W
EAVER,
K
ELLY,
C
ORRIGAN
, and M
ARKMAN
,the
Supreme Court held:
A single detachment petition and a single vote on that petition
may not encompass territory that will be detached from one city
566 472 M
ICH
566 [June
and added to more than one township. Mandamus was not proper
in these cases. The decisions of the Court of Appeals must be
affirmed.
1. A change of boundaries for a district to be affected by a
detachment encompasses only one city and one township because
a township’s voters can be qualified electors only in relation to
their own township’s proposed change of boundaries and are
affected only by their own township’s proposed change of bound-
aries.
2. Interpreting the district to be affected in detachment pro-
ceedings as the city from which the territory is to be detached and
the township to which the territory is to be added recognizes that
the consequences of detachment may be different for each town-
ship that seeks to gain property.
3. Allowing a single petition and a single vote on detachment
and addition of land to multiple townships does not allow voters to
render a vote in support of addition of land to only one township.
4. There was no clear legal right to have the Secretary of State
authorize each petition for a single vote. The writs of mandamus
were properly denied.
Justice Y
OUNG
, concurring in part and dissenting in part,
concluded that a plain reading of all relevant language in the act
indicates that the act permits the use of a single petition and
election when adding land to multiple townships. The act’s defi-
nition of the “district to be affected” by the detachment as
including “each” municipality suggests that the Legislature con-
templated a single detachment proceeding involving multiple
recipient townships. Such a procedure comports with the Equal
Protection Clause of the Fourteenth Amendment. Under federal
case law, strict scrutiny review and the one-person, one-vote
standard do not apply in the context of municipal boundary
changes. The declaratory relief requested in Casco Twp should be
granted. Any request for mandamus relief, however, is premature
because the Secretary of State has not examined the petitions at
issue to determine whether they satisfy all the conditions man-
dated by the act, and the writs of mandamus were properly denied
in both cases.
Affirmed.
1. B
OUNDARIES —
H
OME
R
ULE
C
ITIES —
D
ETACHMENT
E
LECTIONS
.
The Home Rule City Act does not allow a single petition and a single
vote to encompass detachment of land from a city for addition to
multiple townships (MCL 117.1 et seq.).
2005] C
ASCO
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WP V
S
EC OF
S
TATE
567
2. B
OUNDARIES —
H
OME
R
ULE
C
ITIES —
D
ETACHMENT
E
LECTIONS
.
Residents of one township are not qualified electors for purposes of
determining a change of boundaries for another township through
detachment proceedings under the Home Rule City Act (MCL
117.1 et seq.).
Foster, Swift, Collins & Smith, P.C. (by William K.
Fahey, Stephen J. Rhodes, Eric E. Doster, and Ronald D.
Richards, Jr.), and James V. Dubay for Casco Township,
Columbus Township, Patricia Iseler, James P. Holk,
Fillmore Township, Shirley Greving, Andrea Stam,
Larry Sybesma, Jody Tenbrink, and James Rietveld,
and Patrick J. O’Brien and Heather S. Meingast, Assis-
tant Attorneys General, for the Secretary of State and
the Director of the Bureau of Elections.
Eric D. Williams and Rex A. Burgess for the city of
Richmond.
Kerr, Russell and Weber, PLC (by Robert J. Pineau),
for Walter K. and Patricia A. Winkle.
Cunningham Dalman, P.C. (by Andrew J. Mulder, P.
Haans Mulder, and Vincent L. Duckworth), for the city
of Holland.
Amici Curiae:
Bauckham, Sparks, Rolfe, Lohrstorfer & Thall, P.C.
(by John H. Bauckham), for Michigan Townships Asso-
ciation.
Miller, Canfield, Paddock and Stone, P.L.C. (by Will-
iam B. Beach), for Michigan Municipal League.
C
AVANAGH,
J. These consolidated appeals present two
issues. First, we must address whether a single detach-
ment petition and a single vote on that petition, pursu-
ant to the terms of the Home Rule City Act, MCL 117.1
568 472 M
ICH
566 [June
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et seq., may encompass territory to be detached from
one city and added to more than one township.
1
Second,
if a single detachment petition and a single vote may
encompass territory to be added to more than one
township, we must determine whether a writ of man-
damus compels the Secretary of State to issue a notice
directing an election on the change of boundaries
sought by plaintiffs in each case. Because we conclude
that the Home Rule City Act does not allow a single
detachment petition and a single vote on detachment
for adding territory to multiple townships, mandamus
is not proper in these cases. Accordingly, the decisions of
the Court of Appeals are affirmed.
I. STATEMENT OF FACTS AND PROCEEDINGS
CASCO TWP v SECRETARY OF STATE
Plaintiffs in this case are two adjacent townships—
Casco Township and Columbus Township—and resi-
dents of those townships who seek to detach territory
from defendant city of Richmond. The territory sought
to be detached is territory that was previously annexed
to the city of Richmond.
Plaintiffs seek to present the ballot issue covering
both townships in a single petition. This would result in
a single vote about whether to detach territory from the
city of Richmond and add the territory to Casco Town-
ship and Columbus Township. The residents of one
township would be voting on the return of property to
their township, as well as the return of property to a
township in which they do not reside. The Secretary of
State refused to approve an election on plaintiffs’ peti-
tion because an election on the petition would allow
1
While the Home Rule City Act, MCL 117.1 et seq., addresses various
processes, the issue before this Court pertains solely to the process of
detachment.
2005] C
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residents of one township to vote on, and possibly
determine, a change in the boundaries of another
township in which they do not reside.
Plaintiffs filed a complaint for mandamus and de-
claratory relief. The circuit court dismissed plaintiffs’
complaint for mandamus to compel the Secretary of
State to act because it was not clear that a single
petition seeking detachment from a city and addition of
the territory to two townships was permitted by the
Home Rule City Act. The Court of Appeals affirmed the
decision of the circuit court. Casco Twp v Secretary of
State, 261 Mich App 386; 682 NW2d 546 (2004). We
granted plaintiffs’ application for leave to appeal and
ordered that the case be argued and submitted with
Fillmore Twp v Secretary of State, 471 Mich 890 (2004).
FILLMORE TWP v SECRETARY OF STATE
Plaintiffs are Fillmore Township and electors from
four townships—Fillmore Township, Holland Charter
Township, Park Township, and Laketown Township—
and the city of Holland who want to detach territory
from the city of Holland and add the territory to the
four townships. Plaintiffs filed a joint detachment peti-
tion with the Secretary of State, asking that the petition
be certified and that a single election be held regarding
the territory that was proposed to be detached from the
city of Holland. The Secretary of State refused to certify
the petition because the petition involved an effort to
detach territory for addition to more than one town-
ship.
Plaintiffs filed a complaint for mandamus in the
Court of Appeals, and the complaint was held in abey-
ance pending the decision in the Casco Twp case.
Unpublished order, entered May 19, 2003 (Docket No.
245640). Plaintiffs’ complaint was subsequently denied
by the Court of Appeals on the basis of the Casco Twp
570 472 M
ICH
566 [June
O
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decision. Unpublished order, entered May 6, 2004
(Docket No. 245640). We granted plaintiffs’ application
for leave to appeal and ordered that the case be argued
and submitted with the Casco Twp case. 471 Mich 890
(2004).
2
II. STANDARD OF REVIEW
The proper interpretation of a statutory provision is
a question of law that this Court reviews de novo.
Lincoln v Gen Motors Corp, 461 Mich 483, 489-490; 607
NW2d 73 (2000). A trial court’s decision regarding a
writ of mandamus is reviewed for an abuse of discre-
tion. In re MCI Telecom Complaint, 460 Mich 396, 443;
596 NW2d 164 (1999).
III. ANALYSIS
These cases involve an issue of statutory interpreta-
tion. The primary goal of statutory interpretation is to
give effect to the intent of the Legislature. Id. at 411.
The first step is to review the language of the statute. If
the statutory language is unambiguous, the Legislature
is presumed to have intended the meaning expressed in
the statute and judicial construction is not permissible.
The Home Rule City Act, MCL 117.1 et seq., ad-
dresses four processes—incorporation, consolidation,
annexation, and detachment.
3
The issue before this
Court pertains only to the process of detachment.
2
Justice Y
OUNG
states that the majority “fails to convey adequately the
true character of the boundary disputes at issue.” Post at 579. Yet the
relevant facts are conveyed, and it is of no import if the history of these
cases was contentious or of a calculated nature. The statutory analysis is
the same whether the parties were friends, foes, or something in
between.
3
Recent amendments to the act do not affect the issue in this case.
2005] C
ASCO
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571
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Detachment means that territory is taken from an
existing city and added to an existing township.
Section 6 of the Home Rule City Act, MCL 117.6,
provides that a detachment be initiated by “proceed-
ings originating by petition therefor signed by quali-
fied electors who are freeholders residing within the
cities, villages, or townships to be affected
thereby....”(Emphasis added.) Notably, MCL 117.8
and MCL 117.11 delineate the procedure for submit-
ting a petition for a change of boundaries. MCL
117.8(1) provides in relevant part that “the board
shall, by resolution, provide that the question of
making the proposed incorporation, consolidation, or
change of boundaries be submitted to the qualified
electors of the district to be affected at the next general
election or at a special election before the next general
election.” (Emphasis added.) Likewise, MCL 117.11(2)
provides that “the question of making the incorpora-
tion, consolidation, or change of boundaries petitioned
for shall be submitted to the electors of the district to
be affected.” (Emphasis added.) Michigan election law
defines a qualified elector as “any person who pos-
sesses the qualifications of an elector as prescribed in
section 1 of article 2 of the state constitution and who
has resided in the city or township 30 days.”
4
MCL
168.10.
4
Const 1963, art 2, § 1 provides the following:
Every citizen of the United States who has attained the age of
21 years, who has resided in this state six months, and who meets
the requirements of local residence provided by law, shall be an
elector and qualified to vote in any election except as otherwise
provided in this constitution. The legislature shall define residence
for voting purposes.
Pursuant to US Const, Am XVI, the minimum voting age is now
eighteen years.
572 472 M
ICH
566 [June
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Because Casco Township voters do not reside in
Columbus Township, they are not “qualified electors”
of Columbus Township who can sign a petition and vote
on the detachment of territory from the city of Rich-
mond for addition of the territory to Columbus Town-
ship. Likewise, because Columbus Township voters do
not reside in Casco Township, they are not “qualified
electors” of Casco Township who can sign a petition and
vote on the detachment of territory from the city of
Richmond for addition of the territory to Casco Town-
ship. Therefore, a single petition and a single vote on
multiple detachments violate the statutory language of
the Home Rule City Act.
Additional support for this position is found in the
statutory language used in other parts of the Home
Rule City Act. MCL 117.9(1) defines the “district to be
affected” as the following: “The district to be affected
by every such proposed incorporation, consolidation, or
change of boundaries shall be deemed to include the
whole of each city, village, or township from which
territory is to be taken or to which territory is to be
annexed.” (Emphasis added.)
A change of boundaries for the district to be affected
encompasses only one city and one township because a
township’s voters can be qualified electors only in
relation to their own township’s proposed change of
boundaries and are affected only by their own town-
ship’s proposed change of boundaries. Therefore, it is
only plausible that the “district to be affected” encom-
passes one city and one township. Accordingly, a single
detachment petition and a single vote may only encom-
pass territory to be added to one township.
5
5
Other jurisdictions have held similarly. See, e.g., City of L ake Wales v
Florida Citrus Canners Coop, 191 So 2d 453, 457 (Fla App, 1966) (A
2005] C
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Language in MCL 117.13, which sets forth the
procedure following an election, further supports the
principle that each township is considered a separate
entity and there must be separate votes with respect to
the territory to be detached from one city and added to
each township. MCL 117.13 states, “Territory de-
tached from any city shall thereupon become a part of
the township or village from which it was originally
taken... .” This indicates that the “district to be
affected” is limited to the city in which the territory is
located and the single township that seeks the return
of the territory.
Further, interpreting the “district to be affected” in
detachment proceedings as the city from which the
territory is to be detached and the township to which
the territory is to be added recognizes that the conse-
quences of detachment may be quite different for each
township that seeks to gain property. For example,
property rights and liabilities must be adjusted between
the city and the township when there is a detachment.
MCL 123.1. Debts must be apportioned and land may
need to be sold. MCL 123.2; MCL 123.3. The potential
for dramatically different consequences of detachment
is clearly indicated in the Fillmore Twp case. Four
townships seek to detach land from the city of Holland.
The Fillmore Township parcel is 1,054 acres, the Hol-
land Charter Township parcel is 3.33 acres, the Park
Township parcel is 1.27 acres, and the Laketown Town-
ship parcel is 0.77 acres. It is reasonable to conclude
qualified elector in area 1 cannot vote for the annexation in area 2
because the area 1 voter is not within the territory affected.); People ex rel
Smith v City of San Jose, 100 Cal App 2d 57, 60; 222 P2d 947 (1950) (An
annexation election was improperly held because voters had to vote for
the annexation of two parcels and could not vote separately for the
annexation of each parcel.).
574 472 M
ICH
566 [June
O
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that the effect of detachment will be quite different
when one parcel is 1,054 acres and one parcel is a mere
0.77 acres.
Moreover, allowing a single petition and a single vote
on detachment from one city for the addition of terri-
tory to multiple townships does not allow voters to
render a vote in support of the addition of territory to
only one township. MCL 168.643a requires, in relevant
part, the following:
A question submitted to the electors of this state or the
electors of a subdivision of this state shall, to the extent
that it will not confuse the electorate, be worded so that a
“yes” vote will be a vote in favor of the subject matter of the
proposal or issue and a “no” vote will be a vote against the
subject matter of the proposal or issue.
However, a single vote on detaching territory from
one city and adding the territory to multiple townships
does not allow a voter who may only favor one of the
multiple additions of territory to cast a “yes” vote. As
stated by this Court in Muskegon Pub Schools v Vander
Laan, 211 Mich 85, 87; 178 NW 424 (1920), “Separate
subjects, separate purposes, or independent proposi-
tions should not be combined so that one may gather
votes for the other.” In Vander Laan, this Court noted
that the erection of three new school buildings showed
a common purpose and were part of a comprehensive
plan to meet the educational needs of the city. In
contrast, we find that detaching territory from one city
and adding the territory to multiple townships does not
indicate a common purpose because the needs and
consequences of the additions to various townships may
differ remarkably. Combining multiple additions of ter-
ritory in a single detachment petition so that there is
only a single vote indeed combines independent propo-
sitions “so that one may gather votes for the other.”
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When put into context, the text of the Home Rule
City Act is unambiguous—a petition and a vote about
detachment must involve only one city and one town-
ship. A contrary reading of the statutory language
belies the fact that there will always be two parties to a
detachment—the city and the township. Justice
Y
OUNG
’s focus on the word “each” in the statute ignores
that the provisions must be read in context. Interpret-
ing the word “each” to mean that a detachment petition
can encompass more than one township is contrary to
the statutory language that relates to qualified electors
and ignores the fact that the Home Rule City Act
encompasses four distinct procedures–incorporation,
consolidation, annexation, and detachment. Language
in the statute that at first may appear to indicate that
multiple townships may be involved in a single detach-
ment petition and a single vote must be read in context
and in consideration of the statutory language regard-
ing qualified electors. Significantly, residents of one
township are not qualified electors in a detachment
proceeding when it comes to determining a change of
boundaries for another township, and the statute can-
not properly be interpreted in this manner.
6
Further, Justice Y
OUNG
’s reliance on this Court’s
decision in Walsh v Secretary of State, 355 Mich 570,
574; 95 NW2d 511 (1959), is misplaced. Walsh dealt
with annexation, not detachment. Notably, in the
multiple-township annexation at issue in Walsh, the
votes of each territory were considered separately. In
essence, a single township could “veto” the annexation
from taking place, no matter how many voters approved
of the annexation in other townships. In contrast, in the
6
This is consistent with principles espoused in past cases from this
Court. See, e.g., Robertson v Baxter, 57 Mich 127, 129; 23 NW 711 (1885)
(“No person not living in the township has any voice in its affairs.”).
576 472 M
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detachment procedure at issue in these cases, the voters
in a township have no “veto” power. The wishes of an
entire township could effectively be ignored because
voters in other townships believe that a detachment
would be in their best interests. The “package” proposal
in Walsh is hardly analogous to the detachment pro-
ceedings at issue in these cases.
Our conclusion that a single detachment petition and
a single vote on that petition may only encompass
territory to be added to one township is in accord with
the unambiguous statutory language. Thus, the Legis-
lature is presumed to have intended the meaning ex-
pressed in the statute and judicial construction is not
permissible.
Finally, a writ of mandamus could be properly issued
in these cases only if plaintiffs proved that (1) they had
a clear legal right to the performance of the specific
duty that they sought to be compelled, and (2) the
Secretary of State had a clear legal duty to perform the
act. In re MCI, supra at 442-443. Because the Home
Rule City Act does not allow a single detachment
petition and a single vote on that petition to encompass
territory to be detached from one city and added to
more than one township, there was no clear legal right
to have the Secretary of State authorize each petition
for a single vote. Therefore, there was no clear legal
duty that required the Secretary of State to act, and the
writs of mandamus were properly denied in both cases
before this Court.
IV. CONCLUSION
The Home Rule City Act, MCL 117.1 et seq., does not
allow a single petition and a single vote to encompass
detachment of territory from a city for the addition of
that territory to multiple townships; thus, the Secre-
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tary of State did not have a clear legal duty to act.
Therefore, mandamus was not an appropriate remedy.
Accordingly, the decisions of the Court of Appeals are
affirmed.
T
AYLOR
, C.J., and W
EAVER,
K
ELLY,
C
ORRIGAN,
and M
ARK-
MAN
, JJ., concurred with C
AVANAGH
,J.
Y
OUNG
,J.(concurring in part and dissenting in part).
We granted leave to appeal in these consolidated cases
to determine whether (1) the Home Rule City Act
(HRCA)
1
permits the use of a single detachment peti-
tion and election when the territory to be detached from
a city is to be transferred to more than one township
and, (2) if such a procedure is allowed under the HRCA,
whether plaintiffs
2
are entitled to mandamus relief. I
agree with the majority that plaintiffs are not entitled
to writs of mandamus because I believe that any re-
quest for mandamus relief is premature at this time. I
disagree, however, with the majority’s conclusion that
the HRCA does not permit the use of a single detach-
ment petition and vote thereon when transferring land
to multiple townships.
The Legislature was well aware of the political
gamesmanship that occurs between municipalities in
the context of boundary disputes. Indeed, our Constitu-
tion was changed to free the Legislature from this
political quagmire.
3
By enacting the HRCA, the Legis-
lature established a standardized procedure to effectu-
ate such changes in a manner that it viewed as fair and
1
MCL 117.1 et seq.
2
Unless otherwise indicated, “plaintiffs” will be used to refer collec-
tively to the plaintiffs in both of the cases that were consolidated.
Similarly, “defendants” will be used to refer to the defendants in both
cases collectively, unless otherwise noted.
3
See the discussion in part III(A)(1) of this opinion.
578 472 M
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reasonable. A plain reading of all relevant language in
the HRCA demonstrates that the use of a single detach-
ment petition when transferring land to multiple town-
ships is permitted. The Court of Appeals focused only
on select text in the HRCA and thereby gave the statute
a particular meaning that is insupportable when one
considers all the language used by the Legislature in
the HRCA. Its exercise in selective statutory interpre-
tation not only undermines the Legislature’s intent in
passing the HRCA, but also injects the judiciary—
armed only with ill-defined notions of “fairness” and
“justice”—as a referee in the inherently political, con-
tentious, and tactical process of altering municipal
boundaries. The majority opinion, while avoiding ex-
plicit reliance on extra-textual policy justifications, does
not, in my view, give full meaning to all the relevant
words in the statute.
Accordingly, I respectfully dissent from the majori-
ty’s conclusion that a single detachment petition involv-
ing multiple townships is not permitted under the
HRCA. In Casco Twp, I would grant the plaintiffs’
request for declaratory relief and deny their claim for a
writ of mandamus. In Fillmore Twp, because the plain-
tiffs only sought a writ of mandamus, I would deny
entirely their request for relief.
I. FACTS AND PROCEDURAL HISTORY
The majority fails to convey adequately the true
character of the boundary disputes at issue. By glossing
over much of the relevant history, the majority under-
states the inherently political and calculated nature of
the disputes.
4
4
Contrary to the majority’s assertion, I do not contend that the factual
background of these cases should alter the statutory analysis. Ante at 571
n 2. Instead, I simply point out that the majority opinion, in my view,
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A. CASCO TWP v SECRETARY OF STATE
The land at issue in this case has a long, contentious
history. In July 1996, intervening defendants, Walter
and Patricia Winkle, filed a petition with the State
Boundary Commission (SBC) seeking to annex to the
city of Richmond approximately 157 acres of land that
they and other residents owned in Casco Township
and Columbus Township. The Winkles hoped to de-
velop their land for commercial use, but believed that
commercial development could not occur unless their
property was connected to the water and sewer lines
offered by the city of Richmond.
Before the Winkles’ July 1996 petition, however,
Columbus Township and neighboring Lenox Township
had entered into an agreement pursuant to 1984 PA 425
to transfer land from Columbus Township to Lenox
Township.
5
A similar 425 agreement was reached be-
tween Casco Township and Lenox Township. These 425
agreements were designed to prevent future annex-
ations, such as the one initiated by the Winkles in July
1996. In November 1997, the SBC determined that the
425 agreements were invalid and decided instead to
approve the annexation petition filed by the Winkles.
6
After protracted litigation, the SBC’s decision was
inadequately describes the true tactical and strategic character of these
ongoing territorial disputes. Moreover, the lower courts clearly believed
that the ability of villages and townships to use the HRCA to their
advantage was unfair. Providing the full history of these territorial
disputes helps to reveal the lower courts’ policy views.
5
1984 PA 425 provides a detailed mechanism by which municipal
entities may transfer land to one another by contract. MCL 124.21 et seq.
Such intergovernmental transfers are commonly referred to as “425
agreements.”
6
A referendum is not required for an annexation if the territory to be
affected includes one hundred or fewer residents. MCL 117.9(4).
580 472 M
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eventually upheld by the Court of Appeals.
7
The Court
of Appeals found that the 425 agreements between the
townships of Columbus, Casco, and Lenox were
“sham[s]” and “essentially an attempt to avoid annex-
ation,” and upheld the SBC’s decision approving the
annexation initiated by the Winkles.
8
In July 2001, this
Court denied leave to appeal.
9
In December 2001, plaintiffs filed a single detach-
ment petition with the Secretary of State, seeking to
transfer from the city of Richmond to Casco Township
and Columbus Township the same land that was
involved in the prior annexation.
10
The disputed terri-
tory consisted of approximately eighty-seven acres in
Casco Township and seventy acres in Columbus Town-
ship.
Unsure whether the HRCA permitted the use of a
single detachment petition to transfer land to multiple
townships, the Secretary of State requested an official
opinion from the Attorney General interpreting the
7
Casco Twp v State Boundary Comm, 243 Mich App 392; 622 NW2d
332 (2000).
8
Id. at 402.
9
465 Mich 855 (2001).
10
Under the HRCA, a detachment petition is normally submitted to
the county for certification. MCL 117.6. However, if the territory to be
affected is situated in more than one county, certification must be sought
from the Secretary of State. At the time that plaintiffs filed their
petitions, § 11 of the HRCA provided:
When the territory to be affected by any proposed incorpora-
tion, consolidation or change is situated in more than 1 county the
petition hereinbefore provided shall be addressed and presented to
the secretary of state....[MCL117.11.]
Because the city of Richmond is located in both St. Clair County and
Macomb County, the plaintiffs filed the detachment petition with the
Secretary of State pursuant to § 11.
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HRCA. Citing a pending lawsuit in Eaton County,
Michigan, involving a factually similar dispute,
11
and
the Attorney General’s policy of declining to issue
opinions that might affect ongoing litigation, the Attor-
ney General refused to issue a formal opinion constru-
ing the HRCA. However, in a May 2002 memorandum
to the Department of State, Bureau of Elections, the
Attorney General’s Office provided “informal advice”
regarding the use of a single detachment petition.
Recognizing that there were “no cases directly on point
that specifically address the issue,” the memorandum
informed the Department of State that it was “reason-
able to refuse to certify” the petition.
12
The Secretary of
State subsequently notified the plaintiffs that she
would not certify the detachment petition.
The following month, the plaintiffs filed a complaint
in the Ingham Circuit Court, seeking declaratory and
mandamus relief against the defendants. After holding
a hearing, the circuit court denied the plaintiffs’
request for mandamus relief, ruling that the HRCA
was not “patently clear” regarding whether a single
detachment petition may be used to transfer land to
more than one township. The circuit court then dis-
missed the plaintiffs’ lawsuit without having ad-
dressed their request for declaratory relief.
11
In City of Eaton Rapids v Eaton Co Bd of Comm’rs (Eaton Circuit
Court, Docket No. 02-235-AZ 2002), residents of Eaton Rapids Town-
ship and Hamlin Township filed a single detachment petition to detach
land from the city of Eaton Rapids. Unlike the present case, however,
the territory involved in Eaton Rapids was situated in only one county,
thus eliminating the need for involvement by the Secretary of State. In
Eaton Rapids, the trial court upheld the use of a single detachment
petition. The Court of Appeals subsequently denied leave to appeal in
an unpublished order, entered April 16, 2002 (Docket No. 240215).
12
Memorandum from the Attorney General’s Office to the Depart-
ment of State, Bureau of Elections (May 14, 2002).
582 472 M
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The plaintiffs appealed to the Court of Appeals,
claiming that the circuit court erred in denying their
request for mandamus relief and in dismissing their
lawsuit without deciding their request for declaratory
relief. In divided opinions, the Court of Appeals af-
firmed the judgment of the circuit court.
13
The Court of
Appeals majority held that the HRCA was ambiguous as
to whether a single detachment petition was permitted.
Given the ambiguity, the majority decided that it “must
consider the object of the statute and apply a reasonable
construction that is logical and best accomplishes the
HRCA’s purpose.”
14
Acknowledging that there was “no case law that
directly addresse[d] the current situation,”
15
the major-
ity concluded that it was “clearly unfair” to allow the
use of a single detachment petition when transferring
land to multiple townships.
16
Accordingly, the Court of
Appeals denied the plaintiffs’ request for mandamus
relief. The Court of Appeals further held that the circuit
court had “implicitly” denied the plaintiffs’ request for
declaratory relief and affirmed the circuit court’s ruling
denying declaratory relief.
17
The dissent disagreed with
the majority’s conclusion that the HRCA was ambigu-
ous and noted that the plain text of the HRCA permit-
ted the use of a single detachment petition to transfer
land to multiple townships. We granted leave to appeal
and consolidated the case with Fillmore Twp v Secre-
tary of State.
18
13
Casco Twp v Secretary of State, 261 Mich App 386; 682 NW2d 546
(2004).
14
Id. at 392-393.
15
Id. at 393.
16
Id. at 394.
17
Id. at 395.
18
471 Mich 890 (2004).
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B. FILLMORE TWP v SECRETARY OF STATE
As with the territory involved in the companion case
of Casco Twp v Secretary of State, the disputed territory
in this case also has a complex history. In 1997, Fillmore
Township and the city of Holland entered into a 425
agreement through which land in Fillmore Township
was to be transferred to Holland. Pursuant to the
referendum provision in 1984 PA 425, qualified electors
in Fillmore Township filed a petition calling for a
referendum on the 425 agreement with the city of
Holland. The voters ultimately defeated the 425 agree-
ment in the referendum.
Several months after the 425 agreement was de-
feated, in late 1998, landowners in Fillmore Township
filed petitions with the SB C to annex approximately
1,100 acres to the city of Holland. The SBC approved
the annexation, thereby transferring approximately
1,100 acres from Fillmore Township to Holland. Seek-
ing to reverse the annexation effected by the SBC’s
decision, in February 2000, electors in Fillmore Town-
ship filed a petition with the Secretary of State to
detach the land that was previously annexed. In Au-
gust 2000, voters in Fillmore and Holland defeated the
detachment proposal by a vote of 3,917 to 2,614.
In October 2002, the plaintiffs submitted a single
detachment petition to the Secretary of State,
19
again
hoping to detach from the city of Holland the territory
that was previously annexed from Fillmore Township.
In addition to the Fillmore Township-city of Holland
detachment, however, the petition also included three
smaller detachments by which land would be detached
19
Certification by the Secretary of State was required under § 11 of the
HRCA because the city of Holland is situated in both Ottawa County and
Allegan County.
584 472 M
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from the city of Holland and added to Laketown Town-
ship, Park Township, and Holland Charter Township.
Because the HRCA provides that “the whole of each city,
village, or township” to be affected by the detachment is
entitled to vote,
20
by adding the additional three town-
ships to the single detachment petition, the voting base
for the detachment election was greatly expanded.
The following table summarizes the acreage to be
transferred by the detachment and the number of voters
that would be added to the voting base by including each
additional township in the single detachment petition:
21
Municipality
Acres To Be
Received
from the Detachment
Registered Voters
(as of
November 2002)
City of Holland —— 19,771
Fillmore Township 1,054 1,854
Laketown Township 0.77 4,166
Holland Charter Township 3.33 15,221
Park Township 1.27 11,989
Thus, by including the three additional townships and
detaching only an extra 5.37 acres, the voting base of the
district to be affected would be expanded by an addi-
tional 31,376 voters over what the voting base would be
if only Fillmore Township and the city of Holland were
involved.
In November 2002, the Secretary of State refused to
certify the detachment petition, relying on the Septem-
ber 2002 decision by the circuit court disallowing the use
of a single detachment petition in Casco Twp.Inre-
sponse to the Secretary of State’s refusal to certify the
petition, the plaintiffs filed an original mandamus action
20
MCL 117.9 (emphasis added).
21
See brief of city of Holland at 9-10.
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in the Court of Appeals seeking to have the Court order
the Secretary of State to certify the petition and sched-
ule an election. The Court of Appeals ordered that the
plaintiffs’ case be held in abeyance pending its resolu-
tion of Casco Twp. In March 2004, the Court of Appeals
issued its opinion in Casco Twp, affirming the circuit
court’s decision disallowing the use of a single detach-
ment petition. Citing its opinion in Casco Twp, the
Court of Appeals then denied the plaintiffs mandamus
relief by order in May 2004.
22
We granted leave to appeal
and consolidated the case with Casco Twp v Secretary of
State.
23
II. STANDARD OF REVIEW
Whether the HRCA permits the use of a single detach-
ment petition to transfer land to multiple townships is a
matter of statutory interpretation, which is a question of
law that is reviewed by this Court de novo.
24
The consti-
tutionality of the HRCA’s detachment procedure is also
a question of law that is subject to review de novo.
25
This Court reviews a lower court’s decision regarding a
request for mandamus relief for an abuse of discre-
tion.
26
22
Fillmore Twp v Secretary of State, unpublished order of the Court of
Appeals, entered May 6, 2004 (Docket No. 245640).
23
471 Mich 890 (2004).
24
Mann v St Clair Co Rd Comm, 470 Mich 347, 350; 681 NW2d 653
(2004); Peden v Detroit, 470 Mich 195, 200; 680 NW2d 857 (2004); Gladych
v New Family Homes, Inc, 468 Mich 594, 597; 664 NW2d 705 (2003); Silver
Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 373; 663 NW2d 436
(2003).
25
Taxpayers of Michigan Against Casinos v Michigan, 471 Mich 306,
317-318; 685 NW2d 221 (2004); Wayne Co v Hathcock, 471 Mich 445, 455;
684 NW2d 765 (2004); DeRose v DeRose, 469 Mich 320, 326; 666 NW2d
636 (2003).
26
Baraga Co v State T ax Comm, 466 Mich 264, 268-269; 645 NW2d 13
(2002); In re MCI T elecom Complaint, 460 Mich 396, 443; 596 NW2d 164
(1999).
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III. ANALYSIS
A. THE HRCA AND THE SINGLE DETACHMENT PROCEDURE
1. HISTORY OF THE HRCA
The HRCA, enacted in 1909, is an intricate statute
that has been amended in piecemeal fashion numerous
times over the past century. Before the enactment of
the HRCA, the Legislature directly enacted municipal
boundary changes on a case-by-case basis through
special legislation. Delegates to the 1907-1908 consti-
tutional convention recognized the substantial burden
this process imposed, as well as the confusion that
resulted from hundreds of pieces of such special legis-
lation. The convention’s Address to the People stated:
One of the greatest evils brought to the attention of the
Convention was the abuse practiced under local and
special legislation. The number of local and special bills
passed by the last legislature was four hundred fourteen ,
not including joint and concurrent resolutions. The time
devoted to the consideration of these measures and the
time required in their passage through the two houses
imposed a serious burden upon the state. This section
[prohibiting the enactment of special acts when a general
act can be made applicable], taken in connection with the
increased powers of local self-government granted to
cities and villages in the revision, seeks to effectively
remedy such condition. . . . The evils of local and special
legislation have grown to be almost intolerable, introduc-
ing uncertainty and confusion into the laws, and consum-
ing the time and energy of the legislature which should be
devoted to the consideration of measures of a general
character. By eliminating this mass of legislation, the
work of the legislature will be greatly simplified and
improved.
[27]
27
2 Proceedings & Debates, Constitutional Convention 1907, pp
1422-1423 (emphasis in original). In their Address to the People,
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Based on this overwhelming dissatisfaction with spe-
cial legislation as a means to adjust municipal bound-
aries, delegates to the 1907-1908 constitutional conven-
tion debated whether to direct the Legislature to enact a
general municipal boundary statute that would provide a
framework for all future municipal boundary changes.
The delegates proposed, and the people of Michigan
eventually ratified, Const 1908, art 8, § 20, which pro-
vided:
The legislature shall provide by a general law for the
incorporation of cities, and by a general law for the
incorporation of villages....
With art 8, § 20 as a constitutional mandate, the
Legislature enacted the HRCA the following year in
order to establish a comprehensive, standardized pro-
cedure for initiating and approving all changes to
municipal boundaries, including incorporations, annex-
ations, detachments, and consolidations.
28
2. RELEVANT PROVISIONS OF THE HRCA
As the majority correctly notes, three provisions of
the HRCA are directly relevant in the present case. The
detachment process is specifically authorized by § 6 of
the HRCA, which provides:
the delegates were referring to Const 1908, art 5, § 30, which
provided:
The legislature shall pass no local or special act in any case
where a general act can be made applicable, and whether a general
act can be made applicable shall be a judicial question. No local or
special act, excepting acts repealing local or special acts in effect
January 1, 1909 and receiving a
2
/3 vote of the legislature shall take
effect until approved by a majority of the electors voting thereon in
the district to be affected.
28
The substance of Const 1908, art 8, § 20 was carried forward into our
current Constitution as Const 1963, art 7, § 21.
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Cities may be incorporated or territory detached there-
from or added thereto, or consolidation made of 2 or more
cities or villages into 1 city, or of a city and 1 or more
villages into 1 city, or of 1 or more cities or villages together
with additional territory not included within any incorpo-
rated city or village into 1 city, by proceedings originating
by petition therefor signed by qualified electors who are
freeholders residing within the cities, villages, or townships
to be affected thereby....
[29]
However, because both the city of Richmond and the
city of Holland are located in more than one county,
rather than filing their detachment petitions with the
county under § 6, plaintiffs in both cases were required
to file their petitions with the Secretary of State pursu-
ant to § 11 of the HRCA. At the time of the present
lawsuits, § 11 provided:
When the territory to be affected by any proposed
incorporation, consolidation, or change is situated in
more than 1 county the petition hereinbefore provided
shall be addressed and presented to the secretary of state,
with 1 or more affidavits attached thereto sworn to by 1 or
more of the signers of said petition, showing that the
statements contained in said petition are true, that each
signature affixed thereto is the genuine signature of a
qualified elector residing in a city, village, or township to
be affected by the carrying out of the purposes of the
petition and that not less than 25 of such signers reside in
each city, village or township to be affected thereby. The
secretary of state shall examine such petition and the
affidavit or affidavits annexed, and if he shall find that the
same conforms to the provisions of this act he shall so
certify, and transmit a certified copy of said petition and
the accompanying affidavit or affidavits to the clerk of
each city, village or township to be affected by the carrying
out of the purposes of such petition, together with his
certificate as above provided, and a notice directing that
at the next general election occurring not less than 40
29
MCL 117.6 (emphasis added).
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days thereafter the question of making the incorporation,
consolidation or change of boundaries petitioned for shall
be submitted to the electors of the district to be affected,
and if no general election is to be held within 90 days the
resolution may fix a date preceding the next general
election for a special election on the question. If he shall
find that said petition and the affidavit or affidavits
annexed thereto do not conform to the provisions of this
act he shall certify to that fact, and return said petition
and affidavits to the person from whom they were re-
ceived, together with such certificate. The several city,
village and township clerks who shall receive from the
secretary of state the copies and certificates above pro-
vided for shall give notice of the election to be held on the
question of making the proposed incorporation, consoli-
dation or change of boundaries as provided for in section
10 of this act.
[30]
Lastly, the phrase “district to be affected,” as used in
§ 11, is defined by § 9 of the HRCA:
The district to be affected by the proposed incorpora-
tion, consolidation, or change of boundaries is considered
to include the whole of each city, village, or township from
which territory is to be taken or to which territory is to be
annexed.
[31]
3. PRINCIPLES OF STATUTORY INTERPRETATION
When interpreting a statute, a court’s duty is to give
effect to the intent of the Legislature based on the
actual words used in the statute.
32
If the statutory
language is clear and unambiguous, no further con-
30
MCL 117.11 (emphasis added). Effective January 1, 2005, § 11 was
amended. None of the amendments is material to the resolution of the
present cases.
31
MCL 117.9(1) (emphasis added).
32
Shinholster v Annapolis Hosp, 471 Mich 540, 548-549; 685 NW2d
275 (2004).
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struction is necessary or permitted.
33
The statute is
enforced as written.
34
It is the duty of the judiciary to
interpret, not write, the law.
35
In Lansing Mayor v Pub Service Comm, this Court
repudiated prior case law that held that a statute is
ambiguous if it is susceptible to more than one meaning
or if “reasonable minds can differ” regarding the stat-
ute’s meaning.
36
Instead, as this Court stated in Lan-
sing Mayor, a statutory provision is ambiguous only if it
“ ‘irreconcilably conflict[s]’ with another provision, or
when it is equally susceptible to more than a single
meaning.”
37
In ascertaining whether an ambiguity ex-
ists, therefore, a court must employ conventional rules
of construction and “give effect to every word, phrase,
and clause in a statute.”
38
4. THE PLAIN TEXT OF THE HRCA PERMITS
THE USE OF A SINGLE DETACHMENT PETITION
TO TRANSFER LAND TO MULTIPLE TOWNSHIPS
At its core, the Court of Appeals opinion in Casco
Twp represents a deliberate decision to subordinate the
actual text of the HRCA in favor of the Court of
Appeals’ own abstract notions of fairness and justice.
By choosing to give meaning to only some of the words
33
Lansing Mayor v Pub Service Comm, 470 Mich 154, 157; 680 NW2d
840 (2004); In re MCI, supra at 411.
34
Stanton v Battle Creek, 466 Mich 611, 615; 647 NW2d 508 (2002);
Huggett v Dep’t of Natural Resources, 464 Mich 711, 717; 629 NW2d 915
(2001); Anzaldua v Band, 457 Mich 530, 535; 578 NW2d 306 (1998);
Sanders v Delton Kellogg Schools, 453 Mich 483, 487; 556 NW2d 467
(1996).
35
Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34
(2002); State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142,
146; 644 NW2d 715 (2002).
36
Lansing Mayor, supra at 165.
37
Id. at 166 (emphasis in original; citation omitted).
38
Id. at 165, 168; Koontz, supra at 312.
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in the HRCA and ignoring others, the Court of Appeals
substituted its conception of “fairness” for the policy
determination made by the Legislature in writing the
HRCA.
39
While this à la carte method of statutory
interpretation that focuses only on certain words in a
statute is extraordinarily effective at allowing a court to
reach a conclusion that it views as “fair” or “just,” it is
an affront to the separation of powers principle. As this
Court has stated numerous times, it is the duty of the
judiciary to effectuate the intent of the Legislature by
giving effect to every “word, phrase, and clause in a
statute.”
40
A close analysis of the text of the HRCA demon-
strates that the statute is not ambiguous and that a
single detachment petition may be used to detach land
from a city and add it to multiple townships. Although
the majority focuses extensively on § 9 of the HRCA,
41
the majority notably fails to give full effect to the
Legislature’s use of the word “each” in § 9.
39
The Court of Appeals opinion is replete with references to “fairness,”
“injustice,” “prejudice,” and “absurd results.” Casco Twp, supra, 261
Mich App at 391, 394. The Court of Appeals stated, “In simple terms, it
is clearly unfair that citizens of one township be allowed to vote on issues
that affect another township. Indeed, the townships’ combined voting
strength could be used to overwhelm the city’s voting strength.” Id.at
394.
Appellees also rely on vague notions of “fairness” and “justice” in
support of their position. See Winkle brief at 17 (permitting a multiple-
township detachment would lead to “absurd results which create injus-
tice”); Secretary of State brief at 35 (“ ‘[p]ublic policy requires that
statutes controlling the manner in which elections are conducted be
construed as fair as possible’ ”); City of Holland brief at 20 (a multiple-
township detachment is “one of the most egregious examples of...
inherent mischief”).
40
Lansing Mayor, supra at 168; Koontz, supra at 312; Wickens v
Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001).
41
Ante at 573.
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The section of the HRCA under which plaintiffs
filed their petitions, § 11, provides that “the question
of making the incorporation, consolidation or change
of boundaries petitioned for, shall be submitted to the
electors of the district to be affected ....”
42
Under § 9,
the HRCA defines “the district to be affected” as
“includ[ing] the whole of each city, village, or township
from which territory is to be taken or to which territory
is to be annexed.”
43
By defining “the district to be
affected” as including the whole of “each” city, village,
or township, the Legislature contemplated that “the
district to be affected” could include multiple townships
in a detachment proceeding.
The word “each” is not defined in the HRCA. Pursu-
ant to MCL 8.3a, undefined statutory terms are to be
given their plain and ordinary meaning, unless, of
course, the undefined word is a term of art.
44
Because
“each” is not a term of art, this Court must therefore
give the word its plain meaning. As this Court stated in
Horace v City of Pontiac,
45
“[w]hen considering a non-
legal word or phrase that is not defined within a statute,
42
MCL 117.11 (emphasis added).
43
MCL 117.9 (emphasis added).
44
MCL 8.3a provides:
All words and phrases shall be construed and understood
according to the common and approved usage of the language; but
technical words and phrases, and such as may have acquired a
peculiar and appropriate meaning in the law, shall be construed
and understood according to such peculiar and appropriate mean-
ing.
See also Cox v Flint Bd of Hosp Managers, 467 Mich 1, 18; 651 NW2d
356 (2002); Koontz, supra at 312; Donajkowski v Alpena Power Co, 460
Mich 243, 248-249; 596 NW2d 574 (1999).
45
456 Mich 744; 575 NW2d 762 (1998).
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resort to a layman’s dictionary . . . is appropriate.”
46
Moreover, it is appropriate to use a dictionary from the
period contemporaneous to the statute’s enactment in
order to give full effect to the intent of the Legislature
that enacted the statute.
47
Although the HRCA has been amended frequently
over the past century, the relevant provisions of §§ 9
and 11 have remained unchanged in the HRCA since
1909, the year the HRCA was originally enacted. The
word “each” is defined by The New American Encyclo-
pedic Dictionary as “every one of a number considered
separately, all.”
48
The Century Dictionary defines
“each” as “Being either or any unit of a numerical
aggregate consisting of two or more, indefinitely.”
49
Funk & Wagnalls New Standard Dictionary of the
English Language defines “each” as “Being one of two
or more ...Every one of any number or aggrega-
tion....”
50
46
Id. at 756; see also Halloran v Bhan, 470 Mich 572, 578; 683 NW2d
129 (2004); People v Jones, 467 Mich 301, 304; 651 NW2d 906 (2002);
Stokes v Millen Roofing Co, 466 Mich 660, 665; 649 NW2d 371 (2002);
Robinson v Detroit, 462 Mich 439, 456 n 13; 613 NW2d 307 (2000);
Consumers Power Co v Pub Service Comm, 460 Mich 148, 163; 596 NW2d
126 (1999).
47
Cain v Waste Management, Inc (After Remand), 472 Mich 236, 247;
697 NW2d 130 (2005); see also Title Office, Inc v Van Buren Co Treasurer,
469 Mich 516, 522; 676 NW2d 207 (2004). Writing for the Court in Title
Office, Justice C
AVANAGH
noted that, in construing the word “transcript”
in the 1895 Transcripts and Abstracts of Records Act (TARA), it was
proper for the Court to consult a dictionary in use “[a]tthetimeof
enactment of [the] TARA.” Id. (emphasis added).
48
The New American Encyclopedic Dictionary, p 1575 (1907) (emphasis
added).
49
The Century Dictionary: An Encyclopedic Lexicon of the English
Language, p 1813 (1906) (emphasis added).
50
Funk & Wagnalls New Standard Dictionary of the English L an-
guage, p 779 (1913) (emphasis added).
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It is clear, therefore, that the word “each,” as used in
1909, means “all” and “every,” and plainly encompasses
multiple entities. Indeed, by using “each” in § 9, the
Legislature effectively said, as a definitional matter,
that “the district to be affected” is to be comprised of
“all” or “every” city, village, or township affected by the
boundary change. The “district” is not limited to a
predetermined number, but rather includes every mu-
nicipal entity from which territory is to be taken or to
which territory is to be added. Thus, while “the district
to be affected” can certainly contain just two municipal
entities, it can also include more than two entities.
51
Defendants argue that the Legislature’s use of the
word “each” is not determinative because, by using
“each,” the Legislature was simply referring to the two
municipal entities that necessarily must be involved in
any detachment proceeding: the city that will lose the
land and the township that will gain the land.
52
Defen-
dants’ argument is unpersuasive. Had the Legislature
intended “each” to refer only to the two sides involved
in a typical detachment proceeding—the donor city and
the recipient township—and not to multiple recipient
townships, the Legislature would have used the word
“both,” not “each.”
53
The Legislature, however, did not
51
The Legislature’s use of the word “each” was not limited solely to § 9
and the definition of “the district to be affected.” For example, the same
provision under which plaintiffs filed their petitions, § 11, directly states
that the Secretary of State shall transmit a certified copy of the petition
to “each city, village or township to be affected by the carrying out of the
purposes of such petition....”MCL117.11 (emphasis added).
52
The majority makes a similar, though more general, argument. It
notes that a reading of the HRCA “contrary” to its own “belies the fact
that there will always be two parties to a detachment—the city and the
township.” Ante at 576 (emphasis in original). Conspicuously, the major-
ity neglects to give meaning to the Legislature’s use of the word “each.”
53
The New American Encyclopedic Dictionary, p 580 (1907) defines
“both” as “two taken together” and The Century Dictionary: An Ency-
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limit “the district to be affected” to only two municipal
entities by using the word “both.” Instead, it deliber-
ately used the distributive adjective “each,” thereby
referring to every municipality affected. It is only by
assuming that “each” refers exclusively to the donor
and recipient municipalities in a conventional detach-
ment proceeding that the majority position may be
sustained. There is no textual basis for making this
assumption or otherwise limiting the customary mean-
ing of “each.”
54
clopedic Lexicon of the English Language, p 636 (1906) defines “both” as
“The one and the other; the two; the pair or the couple, in reference to two
personsorthings....”
54
Further examination of the text of § 11 demonstrates that a single
detachment petition may be used to transfer land to multiple townships.
For example, § 11 states, “The several city, village and township clerks
who shall receive from the secretary of state the copies and certificates
above provided shall give notice of the election to be held....”Theword
“several” is defined by The New American Encyclopedic Dictionary
(1907) as “Consisting of a number; more than two.” The use of “several,”
therefore, also indicates that the Legislature envisioned a situation under
which a single detachment petition could be used to transfer land to
multiple townships. While it is true that “several” can also mean
“separate” or “individual”—e.g., “they go their several ways”—such a
meaning exists only in the context of a plurality. “Several” only indicates
“individual” or “separate” if there is a larger collective whole to begin
with.
At oral argument, defense counsel conceded that the word “several,”
as used in the HRCA, means “more than a couple.”
Justice Y
OUNG
: I’m asking you to look at section 11 that refers
near the end: “The several city, village and township clerks who
shall receive from the Secretary of State copies of the certificates.”
I’m looking at the term “several” there. Does that not indicate at
least the potential for multiple—
Counsel: Well again we go to kind of the dictionary look at the
definition and “several” can mean one individual.
Justice Y
OUNG
: Really?
Counsel: I’m sorry, you’re talking about a city, village or –
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This construction of the HRCA is bolstered by the
fact that, throughout § 11, the words “petition” and
“election” are used in the singular even though the
words “each” and “several” are used in the same
sentences when modifying “city, village or township.”
For example, § 11 states that the Secretary of State
must transmit “a certified copy of said petition ...tothe
clerk of each city, village or township to be affected by
the carrying out of the purposes of such petition . ...”
55
Section 11 further provides that “[t]he several city,
village and township clerks...shall give notice of the
election tobeheld....”
56
While it is true that MCL 8.3b
states that, in construing statutes, “[e]very word im-
porting the singular number only may extend to and
embrace the plural number,” it is important to remem-
ber that MCL 8.3b is permissive, not mandatory. MCL
8.3b states only that the singular “may” extend to the
plural.
This Court addressed MCL 8.3b in Robinson, in
which we construed the phrase “the proximate cause”
within the context of the governmental immunity stat-
ute.
57
As we noted in Robinson, MCL 8.3b “only states
Justice Y
OUNG
: Doesn’t “several” mean more than a couple?
Counsel: Yes.
55
MCL 117.11 (emphasis added). The word “petition” is used in the
singular three other times in § 11:
The secretary of state shall examine such petition and the
affidavit or affidavits annexed.... If he shall find that said
petition and the affidavit or affidavits annexed thereto do not
conform to the provisions of this act he shall certify to that fact,
and return said petition and affidavits to the person from whom
theywerereceived....[Id. (emphasis added).]
56
Id. (emphasis added).
57
MCL 691.1407(2) provides:
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that a word importing the singular number ‘may ex-
tend’ to the plural. The statute does not say that such
an automatic understanding is required.”
58
We went on
to hold that MCL 8.3 “provides that the rule stated in
§ 3b shall be observed ‘unless such construction would
be inconsistent with the manifest intent of the Legisla-
ture.’ ”
59
This Court concluded that because the Legis-
lature chose to use the definite article “the” within the
phrase “the proximate cause,” it “clearly evince[d] an
intent to focus on one cause.”
60
The same is true in the present case. In § 11, the
Legislature consistently referred to “petition” in the
singular and used the phrase “the election.” There is no
principled basis by which to say that “the” means “one”
in Robinson, but “the” does not mean “one” when
referring to “the election” mandated by § 11.
Taken together, all of these textual clues demon-
strate that the HRCA permits the use of a single
detachment petition and election when transferring
land to more than one township. Unlike the majority,
Except as otherwise provided in this section, and without
regard to the discretionary or ministerial nature of the conduct in
question, each officer and employee of a governmental agency . . .
is immune from tort liability for an injury to a person or damage
to property caused by the officer, employee, or member while in the
course of employment or service...ifallofthefollowingaremet:
***
(c) The officer’s, employee’s, member’s, or volunteer’s conduct
does not amount to gross negligence that is the proximate cause of
the injury or damage. [Emphasis added.]
58
Robinson, supra at 461 n 18.
59
Id.
60
Id. at 458-459 (emphasis added).
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which focuses only on select words in the HRCA, I
believe that this Court is obligated to give effect to every
word the Legislature used in writing the HRCA. I would
hold, therefore, that the Court of Appeals erred in
finding that the HRCA is ambiguous. No provision of
the HRCA conflicts, irreconcilably or otherwise, with
any other provision of the HRCA. Nor is the HRCA
equally susceptible to more than a single meaning. A
plain reading of §§ 9 and 11 demonstrates that the
procedure used by plaintiffs in the present cases is
permissible under the HRCA.
The majority casually dismisses this Court’s decision
in Walsh v Secretary of State,
61
which explicitly recog-
nized and permitted a single petition for a multiple–mu-
nicipality annexation under the HRCA. In Walsh,we
examined §§ 9 and 11 of the HRCA. The case involved
an annexation by the city of Lansing in which it sought
to acquire four parcels of land from Lansing Township
and one parcel situated in both Lansing Township and
Delta Township. A single petition was filed with the
Secretary of State for this multiple-township annex-
ation. Although voters in the city of Lansing and
Lansing Township approved the annexation, voters in
Delta Township did not.
The plaintiffs in Walsh argued that the annexation
attempt was divisible and that we should approve the
annexation of the parcels in Lansing Township, given
that the Lansing Township voters approved the annex-
ation. This Court disagreed. We held that the annex-
ation was a “package proposition” and that, under the
vote tabulation provisions of § 9 in effect at the time, if
any one of the “voting units” voted against the pro-
posal, the whole proposal failed.
62
61
355 Mich 570; 95 NW2d 511 (1959).
62
Id. at 574.
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While it is true that Walsh involved an analogous
annexation rather than a detachment, and that the
primary focus in Walsh was on the vote tabulation
provisions of the HRCA, not the definition of “district
to be affected,” this Court accepted the use of a single
“package” petition even though the land that was to be
annexed consisted of five distinct parcels in two sepa-
rate townships. Accordingly, the single petition proce-
dure used by plaintiffs in the present cases is not
“novel” as defendants contend. Indeed, as Walsh dem-
onstrates, this Court’s own case law has countenanced
the use of such a procedure under the HRCA in the
closely analogous annexation context.
5. THE MAJORITY’S RELIANCE ON THE
HRCA’S “QUALIFIED ELECTOR” REQUIREMENT
AND THE ELECTION CODE IS MISPLACED
The majority bases its holding primarily on the
“qualified elector” requirement in §§ 6 and 11 of the
HRCA.
63
Section 6 provides that detachment proceed-
ings must be initiated by
proceedings originating by petition therefor signed by
qualified electors who are freeholders residing within the
cities, villages, or townships to be affected thereby....
[64]
Section 11 requires affidavits showing that
each signature affixed [to the petition] is the genuine
signature of a qualified elector residing in a city, village or
township to be affected by the carrying out of the purposes
of the petition and that not less than 25 of such signers
reside in each city, village or township to be affected
thereby.
[65]
63
Ante at 572.
64
MCL 117.6 (emphasis added).
65
MCL 117.11 (emphasis added).
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The majority concludes that any multiple-township
petition always violates the “qualified elector” rule
because a signatory who is a qualified elector of town-
ship A is obviously not a qualified elector of township B,
in that the signatory is not a resident of the territory
“to be affected” in township B.
The majority’s analysis is flawed. The “qualified
elector” provision of § 11 merely requires that each
signatory be a qualified elector of “a” city, village, or
township affected by the detachment and that there be
at least twenty-five signatures from “each” municipal-
ity affected. It is uncontested in the present cases that
at least twenty-five qualified electors from each city
and township involved signed the petitions.
66
What the
majority’s argument is actually advancing is the un-
stated predicate point that the “district to be affected”
cannot encompass more than one township. However,
because the Legislature has permitted the “district to
be affected” to include multiple townships, as the
textual analysis above and the Walsh case demonstrate,
then every township that is bundled into the single
petition is necessarily “affected” within the meaning of
the “qualified voter” provision in § 11.
67
The majority’s reliance on § 643a in the Michigan
Election Law, MCL 168.643a, is also misplaced.
68
66
Similarly, § 6 simply requires that the signatories be qualified
electors of “the cities, villages, or townships to be affected thereby.” The
Legislature conspicuously referred to the municipalities in the plural.
67
The majority also relies on MCL 117.13, which states, “Territory
detached from any city shall thereupon become a part of the township
or village from which it was originally taken....”Ante at 574. Contrary
to the majority’s assertion, this language does not prohibit the use of a
single detachment petition involving multiple townships. It merely
delineates which municipality will control the territory after the
detachment is effectuated. The language of § 13 applies with equal force
if multiple townships are involved in a single detachment proceeding.
68
Ante at 575.
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While it is true that § 643a requires electoral questions
to be submitted to voters in a “yes or no” format, there
is no reason why a single detachment petition and
referendum involving multiple townships violates this
requirement. Indeed, that was the exact situation in
Walsh, which held that the multiple-township annex-
ation was a “package” proposition and not divisible.
In fact, the precise case that the majority cites for its
§ 643a rationale–Muskegon Pub Schools v Vander
Laan
69
–involved a multiple-issue proposal that was put
to the voters in a single “yes or no” format and upheld
by this Court. In Vander Laan, a school district bundled
bonding proposals for three separate school buildings
into a single question to be submitted to the voters.
This Court unanimously approved the use of the
multiple-issue proposal.
70
Although the Vander Laan
Court acknowledged the rule established in other juris-
dictions that “[s]eparate subjects, separate purposes, or
independent propositions should not be combined [in a
single electoral question] so that one may gather votes
for the other,” it noted that there was no statutory basis
for the rule in Michigan.
71
Nevertheless, the Vander
Laan Court still imposed a “separate subjects” rule and
ultimately upheld the multiple-issue proposal because it
“was characterized by one common purpose ....”
72
I question the majority’s reliance on Vander Laan
when the Vander Laan Court itself noted that there was
no statutory basis for the “separate subjects” electoral
rule that it recognized. Rather than rely on a judicially
created rule that was premised on policy concerns in an
unrelated area, I prefer to base my analysis of the
69
211 Mich 85; 178 NW 424 (1920).
70
Id. at 88-89.
71
Id.at87.
72
Id.at88.
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multiple-township detachment procedure on the actual
text of the HRCA. However, to the extent that Vander
Laan—a case that did not even involve the HRCA—is
controlling in the present cases, I believe that the
multiple-township detachments are in accord with its
holding because the detachments are united by a “com-
mon purpose.”
6. DEFENDANTS’ REMAINING ARGUMENTS
Defendants argue that to construe the HRCA so as to
permit a single, multiple-township petition would lead
to “absurd results.” However, in People v McIntire,
73
this Court rejected the absurd results “rule” of con-
struction, noting that its invocation is usually “ ‘an
invitation to judicial lawmaking.’ ”
74
It is not the role of
this Court to rewrite the law so that its resulting policy
is more “logical,” or perhaps palatable, to a particular
party or the Court. It is our constitutional role to give
effect to the intent of the Legislature by enforcing the
statute as written.
75
What defendants in these cases (or
any other case) may view as “absurd” reflects an actual
policy choice adopted by a majority of the Legislature
and approved by the Governor. If defendants prefer an
alternative policy choice, the proper forum is the Leg-
islature, not this Court. After all, the Legislature has
shown little reluctance in amending the HRCA over the
past century.
The defendants in Fillmore Twp also argue that if
the detachment of 1.27 acres from the city of Holland
73
461 Mich 147; 599 NW2d 102 (1999).
74
McIntire, supra at 156 n 2, quoting Scalia, A Matter of Interpretation:
Federal Courts and the Law (New Jersey: Princeton University Press,
1997), p 21.
75
See People v Javens, 469 Mich 1032, 1033 (2004) (Y
OUNG
, J., concur-
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for addition to Park Township is permitted, it would
violate the “contiguity” rule articulated by this Court in
Genesee Twp v Genesee Co,
76
a case involving an annex-
ation of land from Genesee Township to the city of Mt.
Morris. In Genesee Twp, this Court stated:
“So, as to territorial extent, the idea of a city is one of
unity, not of plurality; of compactness or contiguity, not
separation or segregation. Contiguity is generally required
even in the absence of statutory requirement to that effect,
and where the annexation is left in the discretion of a
judicial tribunal, contiguity will be required as a matter of
law.”
[77]
Recognizing that the requirement of contiguity was not
“covered by any specific provision of the [HRCA],” the
Court in Genesee Twp instead based its holding on
non-textual policy grounds: “the purpose sought to be
served [by the HRCA] and the practical aspects of
annexation ....”
78
However, this Court revisited the contiguity rule
eight years later in Owosso Twp v City of Owosso.
79
We
specifically stated in Owosso that “the judicial require-
ment of ‘contiguity’ ” articulated in Genesee Twp had
been “superseded” when the Legislature amended § 9
of the HRCA in 1970.
80
We found that the “substantive
standards” established by the Legislature when it
amended § 9 clearly displaced the court-made contigu-
ity rule.
81
Defendants in the present cases would appar-
76
369 Mich 592; 120 NW2d 759 (1963).
77
Id. at 603, quoting 37 Am Jur, Municipal Corporations, § 27, pp
644-645.
78
Id. at 602.
79
385 Mich 587; 189 NW2d 421 (1971).
80
Id. at 588-590.
81
Id. at 590. The Court of Appeals elaborated on this point in
Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1, 34; 654
NW2d 610 (2002).
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ently have this Court ignore the legislative intent of § 9
and resuscitate the judicially created contiguity rule in
the HRCA context. I would decline the invitation.
7. CONSTITUTIONALITY OF THE HRCA
Because I believe that the HRCA permits the use of a
single detachment petition involving multiple town-
ships, it is necessary to determine whether the HRCA’s
authorization of such a procedure is constitutional.
Defendants, particularly those in Fillmore Twp, con-
tend that bundling numerous townships into a single
petition and referendum unconstitutionally dilutes the
vote of city residents.
82
Defendants argue that such vote
dilution is prohibited under the Equal Protection
Clause of US Const, Am XIV.
83
82
It is worth noting that these consolidated cases do not involve any
allegations of discrimination, or the impairment of voting rights, on the
basis of race or any other suspect classification. See, e.g., Gerken,
Understanding the right to an undiluted vote, 114 Harv L R 1663 (2001).
The sole issue of contention here is one of pure numerical vote dilution.
Defendants claim that too many township voters would be included in the
voting base if these referenda are allowed to proceed, to the extent that
city voters would no longer have a meaningful vote.
83
While defendants allege violations of both the federal and state equal
protection clauses, they base their vote dilution argument almost entirely
on federal case law. They cite no Michigan cases analyzing vote dilution
under Const 1963, art 1, § 2. Instead, defendants simply state in their
brief that “Michigan courts interpret the state equal protection clause
similarly to the Fourteenth Amendment.” City of Holland brief at 39.
It is important to note that the text of our state Equal Protection
Clause is not entirely the same as its federal counterpart:
US Const, Am XIV provides in pertinent part:
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws. [Emphasis added.]
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Given the facts surrounding defendants’ vote dilu-
tion claim, it is easy to understand their argument. As
discussed in part I(B) of this opinion, it is obvious, for
example, that the plaintiffs in Fillmore Twp deliber-
ately included the three additional townships—
Laketown, Holland Charter, and Park—as a means to
equalize the voting disparity between the city of Hol-
land and Fillmore Township. In the initial August 2000
Const 1963, art 1, § 2 provides:
No person shall be denied the equal protection of the laws; nor
shall any person be denied the enjoyment of his civil or political
rights or be discriminated against in the exercise thereof because
of religion, race, color or national origin. The legislature shall
implement this section by appropriate legislation.
See also Lind v Battle Creek, 470 Mich 230, 234-235; 681 NW2d 334
(2004) (Y
OUNG
, J., concurring).
Therefore, it is insufficient for defendants to rely solely on federal
case law regarding vote dilution, or Michigan cases interpreting the
federal Equal Protection Clause, and then boldly announce that Const
1963, art 1, § 2 provides the same protections against vote dilution as US
Const, Am XIV.
Because defendants have failed to address vote dilution directly under
Const 1963, art 1, § 2, I decline to examine the issue. As this Court stated
in Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959):
It is not enough for an appellant in his brief simply to announce
a position or assert an error and then leave it up to this Court to
discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority
either to sustain or reject his position. The appellant himself must
first adequately prime the pump; only then does the appellate well
begin to flow.
Moreover, the constitutional provision upon which defendants base
their argument, Const 1963, art 1, § 2, was not relied on by the Court of
Appeals. It was Const 1963, art 1, § 1 that the Court of Appeals
referenced in its opinion. Casco Twp, supra, 261 Mich App at 394 n 27.
Accordingly, I analyze defendants’ vote dilution argument solely
under US Const, Am XIV—the issue that was fully briefed by the parties.
606 472 M
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detachment vote that included only the city of Holland
and Fillmore T ownship, voters rejected the detachment
by a vote of 3,917 to 2,614 (approximately sixty percent
against, forty percent in favor). Recognizing that the
number of voters in the city of Holland exceeded the
number of voters in Fillmore Township by 19,771 to
1,854, almost a 10.7 to 1 margin, the plaintiffs bundled
the three additional townships into the petition by seek-
ing to detach an additional 5.37 acres (0.77 acres for
Laketown Township, 3.33 acres for Holland Charter
Township, and 1.27 acres for Park T ownship). By doing
so, the plaintiffs were able to add an additional 31,376
township voters to the voting base of the “district to be
affected” and thereby exceed the voting base of the city of
Holland. In order to evaluate defendants’ claims of
unconstitutional vote dilution—an issue on which Michi-
gan courts have been relatively silent—it is necessary to
explore briefly the history of federal vote dilution law
under the Equal Protection Clause of the Fourteenth
Amendment.
84
The idea of “vote dilution”
85
as a cognizable consti-
tutional harm originated in the context of congressional
84
As an initial matter, it is important to note that the state action
requirement under Fourteenth Amendment jurisprudence is satisfied
here. Although the detachment petitions in both cases were circulated
and signed by private citizens, the involvement of the Secretary of State
in certifying the petitions and ordering local authorities to hold elections
is sufficient to constitute state action. See, e.g., Ellison v Garbarino,48
F3d 192, 195 (CA 6, 1995) (“running elections” is a “typical example[ ]”
of state action).
85
Professor Melvyn R. Durchslag has noted:
Voter dilution cases fall into two broad categories. First, there
are those in which dilution occurs because (1) some persons are
given votes weighted more heavily than others similarly situated
merely on the basis of residence, (2) votes are weighted according
to a factor which the state determines is reflective of “interest,” or
(3) persons are excluded altogether from voting because the state
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and state legislative apportionment cases. Initially,
courts refused to get involved in claims regarding vote
dilution. The issue was viewed as best left for the
political process and considered nonjusticiable. The
leading case establishing this view was the United
States Supreme Court’s decision in Colegrove v Green,
86
in which voters challenged the Illinois congressional
districting scheme because several of the districts were
comprised of larger populations than others. Stating
that the harm was one to “Illinois as a polity” and not
a private wrong, the Court refused to intervene.
87
In
rejecting the notion that the Court should get involved
in what it viewed as a political question, Justice Frank-
furter wrote that “[c]ourts ought not to enter this
political thicket.”
88
He went on to note:
The remedy for unfairness in districting is to secure
State legislatures that will apportion properly, or to invoke
the ample powers of Congress.... The Constitution has
left the performance of many duties in our governmental
scheme to depend on the fidelity of the executive and
legislative action and, ultimately, on the vigilance of the
people in exercising their political rights.
[89]
However, approximately fifteen years after Cole-
grove, the Supreme Court reversed course in the land-
mark case of Baker v Carr.
90
In Baker, the Court was
deems them to be “uninterested.” Second, there are those in which
dilution occurs because equal franchise is granted to persons alleg-
edly without interest, or with significantly less interest than other
voters. [Durchslag, Salyer, Ball, and Holt: Reappraising the right to
vote in terms of political “interest” and vote dilution,33CaseWRes
L R 1, 38-39 (1982) (emphasis in original).]
86
328 US 549; 66 S Ct 1198; 90 L Ed 1432 (1946).
87
Id. at 552.
88
Id. at 556.
89
Id.
90
369 US 186; 82 S Ct 691;7LEd2d663(1962).
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presented with a constitutional challenge to the appor-
tionment of the Tennessee General Assembly. Despite
significant demographic shifts that occurred within
Tennessee, the state had not reapportioned its legisla-
tive districts in over sixty years. Voters filed suit and
claimed that, in light of the drastic change in popula-
tion, the state’s failure to reapportion the General
Assembly amounted to a violation of their equal protec-
tion rights under the Fourteenth Amendment.
The Court rejected the “political question” rationale
used in Colegrove and held that the issue presented by
the voters was justiciable. Justice Brennan, writing for
the Court, stated that “the mere fact that the suit seeks
protection of a political right does not mean it presents
a political question.”
91
The Court went on to hold that
the Equal Protection Clause provided a proper vehicle
by which to challenge the Tennessee apportionment
system.
92
In its sweeping holding, the Court did not
91
Id. at 209.
92
Id. at 237. Commentators have questioned the Supreme Court’s
reliance on the Equal Protection Clause in Baker, suggesting, instead,
that the Republican Form of Government Clause, US Const, art IV, § 4,
would have been more appropriate. As Judge Michael W. McConnell has
written:
A districting scheme so malapportioned that a minority faction
is in complete control, without regard to democratic sentiment,
violates the basic norms of republican government. It would thus
appear to raise a constitutional question under Article IV, Section
4, which states that “the United States shall guarantee to every
State in this Union a Republican Form of Government.” Consti-
tutional standards under the Republican Form of Government
Clause are ill-developed, but surely a government is not “republi-
can” if a minority faction maintains control, and the majority has
no means of overturning it. [McConnell, The redistricting cases:
Original mistakes and current consequences,24HarvJL&Pub
Policy 103, 105-106 (2000).]
Professor Pamela S. Karlan has noted:
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provide any guidelines regarding how the Equal Protec-
tion Clause should be applied to voting rights cases nor
establish any standards by which to implement the new
role for the judiciary in such cases. Instead, the Court
simply stated, “Nor need the [voters challenging the
apportionment], in order to succeed in this action, ask
the Court to enter upon policy determinations for which
judicially manageable standards are lacking. Judicial
standards under the Equal Protection Clause are well
developed and familiar....”
93
[T]he doctrinal move to one person, one vote was in no sense
compelled, either by precedent or by the absence of any alternative
avenues to judicial oversight. The decision to rely on the Equal
Protection Clause, rather than on the Guaranty Clause, has
always puzzled me. Justice William Brennan’s explanation—that
there was precedent suggesting the general nonjusticiability of the
Guaranty Clause—would make more sense if not for the fact that
there was also absolutely square precedent refusing to entertain
malapportionment claims under the Fourteenth Amendment [cit-
ing Colegrove]. If the Court had to overrule some precedent to
review apportionment and the refusal to reapportion, then why
was overruling Fourteenth Amendment precedent—and develop-
ing a unique set of equal protection principles that apply nowhere
else in constitutional law—the superior alternative? [Karlan,
Politics by other means, 85 Va L R 1697, 1717-1718 (1999).]
93
Baker, supra at 226. In dissent, Justice Frankfurter sharply criticized
the Court for casting aside the “political question” rationale of Colegrove.
He challenged the majority’s conclusion that courts were equipped to
handle such voting rights cases. Justice Frankfurter stated:
The Framers carefully and with deliberate forethought re-
fused...toenthronethejudiciary. In this situation, as in others of
like nature, appeal for relief does not belong here. Appeal must be
to an informed, civically militant electorate....
***
Unless judges, the judges of this Court, are to make their
private views of political wisdom the measure of the Constitution
—views which in all honesty cannot but give the appearance, if not
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With Baker creating the opening, courts soon began
to wade head-high into the thicket of vote dilution
claims. Two years after Baker, the Supreme Court
decided Wesberry v Sanders
94
and Reynolds v Sims,
95
which established, as a fundamental tenet of equal
protection jurisprudence, the “one-person, one-vote”
standard for congressional districts and state legislative
districts, respectively. In Reynolds, the Court stated
that “the overriding objective must be substantial
equality of population among the various districts, so
that the vote of any citizen is approximately equal in
weight to that of any other citizen in the State.”
96
The Court later made the one-person, one-vote stan-
dard applicable to local governments in Avery v Mid-
land Co.
97
In Avery, the Court invalidated the appor-
tionment system for the Commissioners Court of
Midland County, Texas, because it consisted of “single-
member districts of substantially unequal population,”
which favored rural voters over city voters.
98
The Court
reasoned that, because the Commissioners Court exer-
cised “general governmental powers”
99
and its actions
reflect the reality, of involvement with the business of partisan
politics so inescapably a part of apportionment controversies—the
Fourteenth Amendment, “itself a historical product,” provides no
guide for judicial oversight of the representation problem. [Id.at
270, 301-302 (citation omitted).]
94
376 US 1; 84 S Ct 526; 11 L Ed 2d 481 (1964).
95
377 US 533; 84 S Ct 1362; 12 L Ed 2d 506 (1964).
96
Id. at 579.
97
390 US 474; 88 S Ct 1114; 20 L Ed 2d 45 (1968).
98
Id. at 475-476.
99
Id. at 476, 484-485. Under Texas law, the Commissioners Court
possessed wide-ranging powers, including the authority to appoint offi-
cials and fill vacancies in county offices, contract on behalf of the county,
build roads, administer welfare programs, run elections, issue bonds, set
tax rates, and adopt the county budget. Id. at 476.
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had a “broad range of impacts on all the citizens of the
county,”
100
the one-person, one vote standard should
apply.
101
As Wesberry, Reynolds, Avery, and their progeny
demonstrate, the one-person, one-vote standard has
become a well-established principle in equal protection
jurisprudence. At the same time, two notable exceptions
to the one-person, one-vote rule are just as firmly
entrenched in equal protection analysis. The first in-
volves so-called “special purpose districts.” Under this
exception, electoral districts that serve a specialized
purpose, such as a water storage district, are exempt
from strict scrutiny and the rigid one-person, one-vote
standard because they perform functions that “ ‘so
disproportionately affect different groups that a popu-
lar election’ ” is not warranted.
102
100
Id. at 483.
101
Id. at 484-485. After Avery, the Supreme Court struck down
numerous other local voting arrangements. See Kramer v Union Free
School Dist No 15, 395 US 621; 89 S Ct 1886; 23 L Ed 2d 583 (1969)
(invalidating a New York law that restricted voting in school district
elections to owners and lessees of taxable property within the school
district and to parents of children attending the schools); Cipriano v City
of Houma, 395 US 701; 89 S Ct 1897; 23 L Ed 2d 647 (1969) (invalidating
a state law that limited the vote in a municipal bond election to
taxpayers); City of Phoenix v Kolodziejski, 399 US 204; 90 S Ct 1990; 26
L Ed 2d 523 (1970) (same); Hadley v Junior College Dist of Metro Kansas
City, 397 US 50; 90 S Ct 791; 25 L Ed 2d 45 (1970) (applying the
one-person, one-vote standard to a junior college electoral district); Bd of
Estimate of New York City v Morris, 489 US 688; 109 S Ct 1433; 103 L Ed
2d 717 (1989) (invalidating the city of New York’s Board of Estimate
because each of the five New York City borough presidents possessed an
equal vote on the Board, even though the boroughs had “widely disparate
populations”).
102
Salyer Land Co v Tulare Lake Basin Water Storage Dist, 410 US
719, 728-729; 93 S Ct 1224; 35 L Ed 2d 659 (1973), quoting Hadley, supra
at 56. Nearly a decade after Salyer,inBall v James, 451 US 355; 101 S
Ct 1811; 68 L Ed 2d 150 (1981), the Supreme Court extended the Salyer
“special purpose district” exception to a water district that served many
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The second, and more relevant, exception to the
one-person, one-vote standard involves changes to mu-
nicipal boundaries. Indeed, the Supreme Court recog-
nized the unique nature of boundary changes as early
as 1907 in the seminal case of Hunter v Pittsburgh,
103
nearly sixty years before the one-person, one-vote stan-
dard was established. In Hunter, the city of Allegheny
was annexed to the city of Pittsburgh. Under state law,
the votes in both cities on the annexation were aggre-
gated. Voters in Allegheny, who were greatly outnum-
bered by voters in Pittsburgh, claimed that their votes
were unconstitutionally diluted. The Supreme Court
rejected the dilution claim and held that states have
complete control over municipalities:
The State, therefore, at its pleasure may modify or
withdraw all such powers, may take without compensation
such property, hold it itself, or vest it in other agencies,
expand or contract the territorial area, unite the whole or
a part of it with another municipality, repeal the charter
and destroy the corporation. All this may be done, condi-
tionally or unconditionally, with or without the consent of
the citizens, or even against their protest. In all these
respects the State is supreme, and its legislative body,
conforming its action to the state constitution, may do as it
will, unrestrained by any provision of the Constitution of
the United States. Although the inhabitants and property
owners may by such changes suffer inconvenience, and
their property may be lessened in value by the burden of
increased taxation, or for any other reason, they have no
right by contract or otherwise in the unaltered or contin-
ued existence of the corporation or its powers, and there is
nothing in the Federal Constitution which protects them
from these injurious consequences. The power is in the
urban customers (including the city of Phoenix), unlike the district in
Salyer, which served mostly agricultural users. See also Briffault, Who
rules at home?: One person/One vote and local governments, 60 U Chi L
R 339, 359-360 (1993).
103
207 US 161; 28 S Ct 40; 52 L Ed 151 (1907).
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State and those who legislate for the State are alone
responsible for any unjust or oppressive exercise of it.
[104]
This Court fully embraced the rationale of Hunter in
Midland Twp v State Boundary Comm.
105
The case
involved an equal protection challenge to provisions of
the HRCA that provided for a referendum if the area to
be affected included more than one hundred persons,
but excluded the possibility of a referendum when one
hundred or fewer persons were affected. In rejecting the
equal protection argument, Justice L
EVIN
, writing for
the Court, directly relied on Hunter and held, “No city,
village, township or person has any vested right or
legally protected interest in the boundaries of such
governmental units.”
106
Although Hunter preceded the establishment of the
one-person, one-vote standard by half a century, its
holding has endured throughout modern equal protec-
tion jurisprudence.
107
Indeed, municipal boundary
changes have traditionally been exempted from the
one-person, one-vote rule and strict scrutiny review.
108
104
Id. at 178-179.
105
401 Mich 641, 664-666; 259 NW2d 326 (1977).
106
Id. at 664 (emphasis added). See also Rudolph Steiner School of Ann
Arbor v Ann Arbor Charter Twp, 237 Mich App 721, 736; 605 NW2d 18
(1999) (“ ‘No...personhasanyvested right or legally protected interest
in the boundaries of...governmental units.’ Changing the boundaries of
political subdivisions is a legislative question. The Legislature is free to
change city, village, and township boundaries at will.” [citations omit-
ted].).
107
Holt Civic Club v City of Tuscaloosa, 439 US 60, 71; 99 S Ct 383; 58
L Ed 2d 292 (1978) (“[W]e think that [Hunter]continuestohave
substantial constitutional significance in emphasizing the extraordinar-
ily wide latitude that States have in creating various types of political
subdivisions and conferring authority upon them.”).
108
Note, Interest exceptions to one-resident, one-vote: Better results from
the Voting Rights Act?, 74 Tex L R 1153, 1168-1169 (1996) (“Even after
political questions like that in Hunter were found to be justiciable, the
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This issue was addressed in detail by the Supreme
Court in the leading case of Town of Lockport v Citizens
for Community Action at the Local Level, Inc,
109
which
involved a claim by city voters that their votes were
unconstitutionally diluted by rural voters.
In Lockport, Niagara County, New York, sought to
amend its charter in order to provide for a strong form
of county government headed by a county executive.
New York law provided that such an amendment could
only become effective upon approval by separate majori-
ties of the voters who lived in the cities within the
county and of the voters who lived outside the cities.
The amendment to the charter failed both times that it
was put to a vote. Although a majority of the city voters
and a majority of the overall votes cast were in favor of
the amendment, a separate majority of non-city voters
in favor of the amendment was never achieved in either
election. Residents of the cities filed suit, claiming that
the concurrent-majority voting scheme unconstitution-
ally diluted their voting strength because it gave a small
number of rural voters disproportionate voting
strength.
Court has generally adhered to the rule of Hunter to decide equal
protection challenges to jurisdictional boundary changes. Defining resi-
dency is a matter of state discretion subject only to rational basis
review.”). See also Briffault, supra at 342-343 (“Boundary change[s]...
have been defined as largely outside the scope of constitutional protec-
tion. This has limited the impact of one person/one vote on many
traditional state-authorized local arrangements, preserving considerable
flexibility for state regulation of governance at the local level.”).
In 1992, the California Supreme Court held that rational basis review
applies to limitations on the right to vote when a municipal boundary
change is at issue. Sacramento Co Bd of Supervisors v Sacramento Co
Local Agency Formation Comm, 3 Cal 4th 903; 838 P2d 1198; 13 Cal Rptr
2d 245 (1992). In doing so, the California Supreme Court reversed
precedent that held that strict scrutiny was applicable. Id. at 917-922.
109
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The Supreme Court unanimously rejected the equal
protection challenge.
110
In upholding the New York vot-
ing scheme, the Court focused on two points. First, it
found that the Reynolds line of cases dealing with one
person, one vote in the context of legislative represen-
tation were of “limited relevance” in analyzing the
“single-shot” type of referendum facing the voters in
Niagara County because the “expression of voter will is
direct” in a referendum.
111
Second, the Court found
significant the fact that the voters within the cities and
those outside the cities would be affected differently if
the county were to adopt a county executive model of
government.
112
The Court directly compared the situa-
tion at hand to one involving an annexation of land by
municipalities and the distinct interests that would
exist in such a context.
113
Applying rational basis review,
the Court went on to hold that the statute’s concurrent-
majority voting provision merely recognized “substan-
tially differing electoral interests” and that it did not
amount to a violation of the Equal Protection Clause.
114
Lockport is particularly instructive in resolving defen-
dants’ equal protection claims. Similar to the Niagara
County referendum in Lockport, the detachment elec-
tions in the present cases are also “single-shot” refer-
enda, thus marginalizing much of the rationale sur-
rounding the Reynolds line of cases pertaining to
legislative representation. The expressed will of the vot-
ers in the detachment elections will be direct and unfil-
tered.
110
Chief Justice Burger concurred in the judgment, but did not write
a separate opinion.
111
Lockport, supra at 266.
112
Id. at 269-272.
113
Id. at 271. See Briffault, Voting rights, home rule, and metropolitan
governance: The secession of Staten Island as a case study in the dilemmas
of local self-determination, 92 Colum L R 775, 797-798 (1992).
114
Lockport, supra at 272-273.
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Like the Supreme Court in Lockport, I also find
significant the existence of disparate electoral interests
between city and township residents. In the present
cases, it is undisputed that the voters in the townships
and those in the cities have “substantially differing
electoral interests.” If the detachments are approved,
one municipality will lose land and others will gain land,
thereby implicating divergent interests in the city and
the townships on a wide range of issues, including police
and fire protection, school districts, taxes, sewer systems,
road construction, commercial development, garbage col-
lection, etc.
115
Indeed, the majority itself recognizes this
fact by noting the “potential for dramatically different
consequences” among municipalities if the detach-
ments are permitted.
116
Given these differing electoral interests, I believe it is
rational for the Legislature to permit the use of a single
detachment petition to transfer land to multiple town-
ships and that such a procedure does not violate the
Equal Protection Clause. As the parties noted in their
briefs and at oral argument, boundary disputes between
townships and cities are nothing new. Indeed, such
gamesmanship is not only commonplace, but to be
expected given the inherently valuable nature of land in
our society. For example, cities often craft annexation
proposals with surgical precision so that the territory to
be acquired from a township contains one hundred or
fewer inhabitants and is thus exempt from a public
referendum.
117
By repeating this process numerous
115
See, e.g., Lockport, supra at 269-271.
116
Ante at 574.
117
Amicus brief of the Michigan Townships Association at 2-3. As
discussed inn6ofthisopinion,anannexation of territory that contains
one hundred or fewer residents is subject only to approval by the SBC.
MCL 117.9(4).
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times, a city may be able to acquire large amounts of
land without ever seeking approval from voters.
In light of such tactical territorial disputes between
cities and townships, it is not irrational for the Legis-
lature to permit several townships to amplify their
voting strength by combining several different parcels
into a single detachment petition. In fact, with the
significant population disparities that exist between
large cities and small townships, such a bundled peti-
tion may be the only way that certain detachments
could ever be effectuated. By permitting several town-
ships to combine efforts in a single petition, the Legis-
lature has simply recognized that differing electoral
interests exist and that, occasionally, similar entities
will need to combine forces in order to have any
meaningful opportunity at advancing their interests
and achieving the various boundary changes authorized
under the HRCA.
118
I believe that such a view by the
Legislature is entirely reasonable.
119
Justice L
EVIN
recognized the gamesmanship that occurs between cities
and townships in Midland Twp, supra at 679, stating that “[c]ity and
township strategies based on [the one hundred-resident referendum
threshold] are unavoidable. In general, the city will seek to limit the area
proposed for annexation so that there are insufficient residents for a
referendum and the township will seek to extend the area to require a
referendum. The motive or purpose of the city or township in drawing the
proposed boundaries or in requesting a revision of boundaries is not
material.”
118
In addition to minimizing the effects of population disparities
between cities and townships, there are numerous other reasons why the
Legislature may have permitted the use of a single petition to transfer
land to multiple townships. For example, it is possible that the Legisla-
ture recognized the substantial financial expense that townships and
cities face when holding elections and that, by combining numerous
detachments in one election, it would be less expensive for the taxpayers
to have a single election than to have several separate detachment
elections.
119
I find the cases on which defendants rely unpersuasive. In Hayward
v Clay, 573 F2d 187 (CA 4, 1978), the Fourth Circuit Court of Appeals
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Lockport and Hunter demonstrate that the one-
person, one-vote standard does not apply in cases in-
volving municipal boundary changes as it does, for
example, in the context of legislative representation.
120
Instead, states maintain broad discretion over munici-
pal boundary changes—discretion that is subject to
rational basis review.
121
The fact that the state has
applied strict scrutiny to an annexation proceeding that required sepa-
rate majority approval by freeholders. Hayward is easily distinguishable
from the present cases. Hayward involved a grant of disproportionate
voting strength to freeholders. No such land-based distinction in voting
strength exists in the present cases. Instead, the franchise is extended to
all registered voters in the affected municipalities, regardless of land
ownership status. Defendants also cite Carlyn v City of Akron, 726 F2d
287 (CA 6, 1984), in which the Sixth Circuit Court of Appeals refused to
apply strict scrutiny to an annexation proceeding. While I appreciate the
dicta that defendants cite from Carlyn regarding when strict scrutiny is
to apply, I would choose instead to base our resolution of this federal law
question on clear precedent from the United States Supreme Court.
120
Indeed, Lockport and Hunter, taken together, illustrate that any
claim of vote dilution in the municipal boundary change context will be
difficult to sustain, absent dilution based on some suspect category such
as race. The Supreme Court explicitly rejected “dilution by aggregation”
in Hunter and “dilution by disproportionate weight”inLockport. With
both types of dilution having been flatly rejected by the Supreme Court,
it seems quite clear that such cases are not viewed as traditional vote
dilution matters, but as matters involving a state’s absolute authority
over municipal boundaries.
121
As Professor Briffault has written in discussing the effect of
Lockport:
To apply strict scrutiny to the distribution of the vote concern-
ing boundary changes would inevitably entail a constitutional
review of the states’ municipal formation and boundary change
policies. But there are no generally accepted principles for deter-
mining whether a particular local government ought to exist, what
that unit’s geographic dimensions ought to be, or whether a
particular territory ought to be in that or another local unit. Thus,
deference to the states is consistent with both the lack of a
constitutional vantage point for examining state municipal forma-
tion and boundary change policies and the traditional jurispru-
dence of federalism that treats local governments as state instru-
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chosen to exercise this power partially through mecha-
nisms provided under the HRCA, which includes public
referenda on privately initiated boundary changes, in
no way diminishes the state’s plenary control over
municipal boundaries. Therefore, considering the dif-
fering electoral interests that undoubtedly exist be-
tween municipalities in a detachment proceeding and
the gross disparities in population that arise, I believe
that the Legislature acted rationally in permitting,
under the HRCA, the use of a single detachment
petition when transferring land to more than one
municipality.
While the wisdom of such a policy choice by the
Legislature might be debated, this Court is not the
proper forum for such an undertaking. Our role is
limited to determining whether the HRCA conforms to
the Constitution. For the foregoing reasons, I believe
that it does.
B. MANDAMUS RELIEF
1. NATURE OF THE REMEDY
A writ of mandamus is an extraordinary remedy used
to enforce duties mandated by law.
122
It is entirely
discretionary in nature.
123
Before seeking mandamus
mentalities and leaves the creation and structure of local
governments to the states. [Briffault, supra,60UChiLRat
395-396.]
122
State Bd of Ed v Houghton Lake Community Schools, 430 Mich 658,
666; 425 NW2d 80 (1988); Teasel v Dep’t of Mental Health, 419 Mich 390,
409; 355 NW2d 75 (1984); Howard Pore, Inc v Revenue Comm’r, 322 Mich
49, 75; 33 NW2d 657 (1948); Sumeracki v Stack, 269 Mich 169, 171; 256
NW 843 (1934); Gowan v Smith, 157 Mich 443, 470; 122 NW 286 (1909).
123
Donovan v Guy, 344 Mich 187, 192; 73 NW2d 471 (1955); Fellinger
v Wayne Circuit Judge, 313 Mich 289, 291-292; 21 NW2d 133 (1946); Geib
v Kent Circuit Judge, 311 Mich 631, 636; 19 NW2d 124 (1945); Toan v
620 472 M
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relief, a plaintiff must complete all conditions precedent
to the act that the plaintiff seeks to compel,
124
including
a demand of performance made on the official charged
with performing the act.
125
Once this threshold is met,
the plaintiff, bearing the burden of proof,
126
must dem-
onstrate: (1) a clear legal right to the act sought to be
compelled; (2) a clear legal duty by the defendant to
perform the act; (3) that the act is ministerial, leaving
nothing to the judgment or discretion of the defendant;
and (4) that no other adequate remedy exists.
127
2. PLAINTIFFS ARE NOT ENTITLED TO MANDAMUS RELIEF
While I agree with the majority that plaintiffs are not
entitled to mandamus relief, I disagree with the majori-
ty’s rationale. The majority concludes that mandamus
relief is improper because the HRCA does not permit
the use of a single detachment petition involving mul-
tiple townships and, therefore, plaintiffs have no “clear
McGinn, 271 Mich 28, 33; 260 NW 108 (1935); Sumeracki, supra at 171;
Industrial Bank of Wyandotte v Reichert, 251 Mich 396, 401; 232 NW 235
(1930); Miller v Detroit, 250 Mich 633, 636; 230 NW 936 (1930); Taylor v
Isabella Circuit Judge, 209 Mich 97, 99; 176 NW 550 (1920); Stinton v
Kent Circuit Judge, 37 Mich 286, 287 (1877).
124
Cook v Jackson, 264 Mich 186, 188; 249 NW 619 (1933); Hickey v
Oakland Co Bd of Supervisors, 62 Mich 94, 99-101; 28 NW 771 (1886).
125
Stack v Picard, 266 Mich 673, 673-674; 254 NW 245 (1934); Owen v
Detroit, 259 Mich 176, 177; 242 NW 878 (1932) (“[T]he discretionary writ
of mandamus will not issue to compel action by public officers without
prior demand for such action.”); People ex rel Butler v Saginaw Co Bd of
Supervisors, 26 Mich 22, 26 (1872).
126
Baraga Co, supra at 268; In re MCI, supra at 442-443.
127
Baraga Co, supra at 268; In re MCI, supra at 442-443; Houghton
Lake Community Schools, supra at 666; Pillon v Attorney General, 345
Mich 536, 539; 77 NW2d 257 (1956); Janigian v Dearborn, 336 Mich 261,
264; 57 NW2d 876 (1953); Howard Pore, Inc, supra at 75; McLeod v State
Bd of Canvassers, 304 Mich 120, 125; 7 NW2d 240 (1942); Rupert v Van
Buren Co Clerk, 290 Mich 180, 183-184; 287 NW 425 (1939); Toan, supra
at 34; Sumeracki, supra at 171; Gowan, supra at 470-473.
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legal right” to the relief they seek.
128
For the reasons
stated, I disagree with that conclusion. However, I
believe that plaintiffs are not entitled to writs of man-
damus because a request for such relief is premature at
this time.
As already discussed, before a writ of mandamus will
be issued, a plaintiff must complete all conditions
precedent to the act that the plaintiff seeks to compel.
129
While it is possible that plaintiffs may have already
satisfied all requirements imposed by the HRCA, the
Secretary of State has yet to make such a determina-
tion. The Secretary of State deferred her examination of
the petitions until the antecedent question of whether
the HRCA permits the use of a single petition involving
multiple townships was resolved. The Secretary of State
has not yet examined the petitions to determine
whether they comply with all the other requirements of
the HRCA. Therefore, plaintiffs’ requests for manda-
mus relief are premature.
IV. CONCLUSION
The HRCA is not ambiguous. A plain reading of §§ 9
and 11 demonstrates that the use of a single detach-
ment petition is permitted when seeking to transfer
land to multiple townships. Moreover, such a procedure
comports with the Equal Protection Clause of the
Fourteenth Amendment. Plaintiffs are not entitled to
mandamus relief, however, because the Secretary of
State has yet to examine the petitions to determine
whether all the conditions mandated by the HRCA have
been satisfied. Accordingly, in Casco Twp, I would
reverse the decisions of the Court of Appeals and the
128
Ante at 577.
129
See n 124 of this opinion.
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trial court and grant declaratory relief. Because the
plaintiffs in Fillmore Twp did not seek declaratory
relief, I would affirm the dismissal of their mandamus
action.
For the foregoing reasons, I respectfully concur in
part and dissent in part.
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PEOPLE v STEWART
Docket No. 124055. Argued March 9, 2005 (Calendar No. 1). Decided
June 28, 2005.
Leonard L. Stewart was convicted by a jury in the Saginaw Circuit
Court of possession with intent to deliver more than 650 grams of
cocaine and conspiracy to commit possession with intent to deliver
more than 650 grams of cocaine. He was sentenced to two
consecutive life sentences without the possibility of parole. Three
years later, in 1998, certain statutory amendments allowed the
defendant to be eligible for parole after 17.5 years of imprison-
ment. The defendant then petitioned the trial court to be certified
as having cooperated with law enforcement under MCL
791.234(10), thereby making him eligible for parole 2.5 years
earlier than he would be without such certification. The court,
Leopold P. Borrello, J., denied the request. The Court of Appeals,
G
RIFFIN
,P.J., and O
WENS
and S
CHUETTE
, JJ., denied the defendant’s
delayed application for leave to appeal in an unpublished order,
entered May 21, 2003 (Docket No. 243562). The Supreme Court
granted the defendant’s application for leave to appeal. 470 Mich
879 (2004).
In an opinion by Justice W
EAVER
, joined by Chief Justice
T
AYLOR
, and Justices C
AVANAGH,
C
ORRIGAN
,andY
OUNG
, the Supreme
Court held:
1. The cooperation of a prisoner under MCL 791.234(10) may
occur at any time before the filing of a motion for judicial
determination of cooperation and before the prisoner is released
on parole. The statute imposes no limits on when a sentencing
court may make a determination that cooperation occurred. The
court may make the determination at any time before an order of
parole is entered.
2. A prisoner who never provided any information or who had
relevant or useful information to provide and chose not to provide
the information when it was still relevant and useful cannot be
considered to have cooperated. The defendant did have relevant
and useful information that he could have given to law enforce-
ment personnel at the time of his arrest or conviction and chose
624 472 M
ICH
624 [June
not to provide the information. Therefore, the defendant cannot be
considered to have cooperated with law enforcement.
3. The statute does not limit the relevant or useful information
provided in cooperation with law enforcement to information
about the crime for which the prisoner was convicted. A prisoner
bears the burden of proving that he or she has provided all the
information he or she possesses about a crime and cannot pick and
choose what information he or she is prepared to disclose.
4. It is not sufficient for purposes of the statute that a prisoner,
like the defendant, allege that he or she would be willing to
cooperate in the future.
5. “Cooperation” for purposes of the statute includes conduct
amounting to working with law enforcement personnel for or
toward a common purpose, providing useful or relevant informa-
tion to law enforcement, or establishing that although the prisoner
provided law enforcement any information he or she had, and it
turned out not to be relevant or useful, the prisoner never had any
relevant or useful information to provide. The defendant’s alleged
actions of not hiding or destroying evidence, not intimidating
witnesses, not fleeing to avoid prosecution, and being courteous to
investigating officers do not amount to cooperation with law
enforcement.
6. A prisoner has the burden of initially showing, by affidavit or
otherwise, that he or she has already cooperated with law enforce-
ment or that he or she provided any information he or she had to
law enforcement, but at no time before filing the motion for judicial
certification of cooperation did he or she have any relevant or useful
information to provide. The sentencing court would then have the
discretion to conduct an evidentiary hearing to determine whether
the prisoner has cooperated if the court, after reviewing the
evidence, concludes that a genuine and material factual issue exists
regarding whether the prisoner cooperated. The defendant has not
met his burden of initially showing that he has cooperated with law
enforcement; therefore, he is not entitled to an evidentiary hearing.
7. The opinions in People v Matelic, 249 Mich App 1 (2001), and
People v Cardenas, 263 Mich App 511 (2004), must be overruled to
the extent that they conflict with this opinion.
Justice M
ARKMAN
, concurring, wrote separately to set forth two
areas of concern. First, he disagreed with the majority that MCL
791.234(10), which states that a “prisoner is considered to have
cooperated with law enforcement if the court determines on the
record that the prisoner had no relevant or useful information to
provide,” requires a prisoner to have provided some information to
2005] P
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law enforcement to be considered as having cooperated. Second, he
would not address whether cooperation includes participation in a
controlled drug buy or providing information about unrelated
crimes because such discussion is dictum in this case.
Justice K
ELLY,
concurring in the result only, agreed that the
defendant did not qualify for a certificate of cooperation. She
disagreed that the language of MCL 791.234(10) requires a pris-
oner to provide all the information the prisoner has about a crime
to be eligible for credit for cooperation. The Legislature did not
indicate how much cooperation is enough or even limit the benefits
of the statute to prisoners who provide relevant and useful
information, leaving the decision to the discretion of the trial
court.
Affirmed.
1. P
AROLE —
E
XPEDITED
P
AROLE
E
LIGIBILITY —
C
OOPERATION WITH
L
AW
E
NFORCE-
MENT
.
A prisoner’s cooperation with law enforcement, for purposes of a
motion for judicial determination of cooperation under MCL
791.234(10), may occur at any time before the motion is filed and
the prisoner is released on parole; a pledge of future cooperation
does not constitute cooperation.
2. P
AROLE —
E
XPEDITED
P
AROLE
E
LIGIBILITY —
C
OOPERATION WITH
L
AW
E
NFORCE-
MENT
.
A prisoner may be considered to have cooperated with law enforce-
ment for purposes of a motion for judicial determination of
cooperation under MCL 791.234(10) where the prisoner engaged
in conduct where he or she worked with law enforcement toward
a common purpose, provided useful or relevant information to law
enforcement, or establishes that although the prisoner provided
law enforcement any information he or she had, and it turned out
not to be relevant or useful, the prisoner never had any relevant or
useful information to provide; a prisoner who never provided any
information or who had relevant or useful information but chose
not to provide it while it was relevant or useful may not be
considered to have cooperated.
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, Michael D. Thomas, Prosecuting At-
torney, and Janet M. Boes, John T. Horiszny, and A.
George Best, II, Assistant Prosecuting Attorneys, for
the people.
626 472 M
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624 [June
Carolyn A. Blanchard for the defendant.
Amicus Curiae:
Stuart J. Dunnings III, President, Jeffrey L. Sauter,
Prosecuting Attorney, and William M. Worden, Senior
Assistant Prosecuting Attorney, for the Prosecuting
Attorneys Association of Michigan.
W
EAVER,
J. This case is one of statutory interpreta-
tion. Under MCL 791.234(10), a prisoner may apply for
a judicial certificate of cooperation. If the prisoner is
found to have cooperated with law enforcement, then
the prisoner is eligible for parole 2.5 years sooner than
otherwise. The questions presented are: (1) when the
prisoner’s cooperation must occur, and when a court
may make a determination that cooperation has oc-
curred; (2) what constitutes “cooperation” under MCL
791.234(10), and whether defendant’s actions met that
standard; and (3) whether this case should be remanded
to the circuit court for an evidentiary hearing to deter-
mine whether defendant has cooperated within the
meaning of the statute.
We hold that a prisoner’s cooperation may occur at
any time before the prisoner is released on parole. But
the cooperation must occur before the filing of a motion
for judicial determination of cooperation. Similarly, the
statute imposes no limits on when a court may make a
determination that cooperation occurred.
Cooperation means that a prisoner engages in con-
duct where the prisoner is working with law enforce-
ment for a common purpose, provides useful or relevant
information to law enforcement, or establishes that
although the prisoner provided law enforcement any
information he or she had, and it turned out not to be
relevant or useful, the prisoner never had any relevant
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or useful information to provide. A prisoner who had
relevant or useful information to provide and chose not
to provide this information, however, cannot be consid-
ered to have cooperated with law enforcement.
Under these standards, defendant did not meet his
burden of initially showing, by affidavit or otherwise,
that he had cooperated with law enforcement. Accord-
ingly, defendant is not entitled to an evidentiary hear-
ing.
To the extent that People v Matelic, 249 Mich App 1;
641 NW2d 252 (2001), and People v Cardenas, 263 Mich
App 511; 688 NW2d 544 (2004), conflict with this
opinion, they are overruled.
We affirm the trial court’s order denying defendant’s
motion for judicial certification of cooperation.
I. FACTS & PROCEDURAL HISTORY
The police intercepted a package of cocaine at the
Saginaw office of United Parcel Service. The police set
up surveillance at the house to which the package was
addressed and had a police officer deliver the package.
David Harrell, a codefendant, signed for the package. A
short time later, police officers raided the house. Harrell
told the police that defendant asked him if defendant
could have packages delivered to Harrell’s house, and
that three or four packages had been delivered in 1994.
Harrell stated that defendant had come to the house
earlier with Bryant Fields, and that defendant had said
that Fields would be picking the package up. During the
raid, Fields came to the house to pick up the package.
When the police arrested Fields, they found two rocks of
cocaine wrapped in $50 and a green pager. Fields stated
that the pager belonged to the man for whom he was
picking up the package; Harrell said that the pager
looked like the one that defendant carried. During the
628 472 M
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raid, the pager went off three times, displaying defen-
dant’s home phone number. The package originated in
Pomona, California, and there were several calls made
from defendant’s home phone to Pomona.
Following a jury trial, defendant was convicted of
possession with intent to deliver over 650 grams of
cocaine, MCL 333.7401(2)(a)(i), and conspiracy to com-
mit possession with intent to deliver over 650 grams of
cocaine, MCL 750.157a(a). At the time that defendant
was convicted and sentenced in 1995, MCL
333.7401(2)(a)(i) provided that an individual found
guilty of possessing with the intent to deliver over 650
grams of cocaine would receive a mandatory sentence of
life imprisonment. Further, there was no possibility of
parole for an individual sentenced to a mandatory life
sentence “for a major controlled substance of-
fense....”MCL791.234(4).
1
Consequently, defendant
was sentenced to two consecutive life sentences without
the possibility of parole.
In 1998, three years after defendant was sentenced,
the Legislature revised the statutes. The revisions re-
moved the mandatory life imprisonment for those con-
victed of possession with intent to deliver over 650
grams of cocaine and replaced that punishment with
“life or any term of years but not less than 20 years.”
MCL 333.7401(2)(a)(i). The revisions further provided
that such an offender would be eligible for parole after
either twenty years (if the offender “has another con-
viction for a serious crime”) or after 17.5 years’ impris-
onment (if the offender “does not have another convic-
tion for a serious crime....”). MCL 791.234(6). These
same amendments also created MCL 791.234(10),
which permits an offender convicted of possession with
1
The substance of MCL 791.234(4) is now contained in MCL
791.234(6).
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intent to distribute over 650 grams of cocaine to be
eligible for parole 2.5 years earlier if the offender is
found to have “cooperated with law enforcement....”
Under MCL 333.7401(2)(a)(i), defendant was found
to be eligible for parole after 17.5 years’ imprisonment.
Defendant subsequently petitioned to be certified as
having cooperated with law enforcement under MCL
791.234(10). The trial court denied defendant’s request,
stating:
The Defendant states that he had no relevant or useful
information to provide to law enforcement officers previ-
ously. Additionally, he states that he is “ready and willing to
proffer any relevant or useful information that he may
have, without undue haste.[”] He, however, fails to allege
how he will have any relevant or useful information for law
enforcement officials approximately eight years after his
arrest. The Court finds that due to a lack of facts, it cannot
enter an order of cooperation.
Defendant sought leave to appeal, and the Court of
Appeals denied defendant’s delayed application for
leave to appeal. Unpublished order, entered May 21,
2003 (Docket No. 243562).
This Court then granted defendant leave to appeal,
asking the parties to address the following:
(1) What constitutes “cooperation” for the purpose of
MCL 791.234(10), and did defendant’s actions satisfy that
requirement? (2) Does MCL 791.234(10) contain a tempo-
ral limitation on when cooperation must occur? (3) Does
MCL 791.234(10) contain a temporal limitation on when a
court may make a determination that cooperation oc-
curred? (4) Was People v Matelic, 294 Mich App 1 (2001),
properly decided?
[2]
(5) Should this case be remanded to the
Saginaw Circuit Court for an evidentiary hearing to deter-
2
This issue is now irrelevant because People v Matelic was largely
overruled by a conflict panel in People v Cardenas, 263 Mich App 511; 688
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mine whether defendant has cooperated within the mean-
ing of MCL 791.234(10)? [People v Stewart, 470 Mich 879
(2004).]
II. STANDARD OF REVIEW
This case involves the interpretation of MCL
791.234(10). We review questions of statutory interpre-
tation de novo. People v Jones, 467 Mich 301, 304; 651
NW2d 906 (2002). The primary goal in construing a
statute is “to give effect to the intent of the Legisla-
ture.” In re MCI Telecom Complaint, 460 Mich 396, 411;
596 NW2d 164 (1999). We begin by examining the plain
language of the statute. People v Morey, 461 Mich 325,
330; 603 NW2d 250 (1999).
III. ANALYSIS
The statute at issue, MCL 791.234(10), provides:
If the sentencing judge, or his or her successor in office,
determines on the record that a prisoner described in
subsection (6) sentenced to imprisonment for life for vio-
lating or conspiring to violate section 7401(2)(a)(i) of the
public health code, 1978 PA 368, MCL 333.7401, has
cooperated with law enforcement, the prisoner is subject to
the jurisdiction of the parole board and may be released on
parole as provided in subsection (6), 2-
1
/
2
years earlier than
the time otherwise indicated in subsection (6). The pris-
oner is considered to have cooperated with law enforce-
ment if the court determines on the record that the
prisoner had no relevant or useful information to provide.
The court shall not make a determination that the prisoner
failed or refused to cooperate with law enforcement on
grounds that the defendant exercised his or her constitu-
tional right to trial by jury. If the court determines at
NW2d 544 (2004), convened pursuant to MCR 7.215(J) after the order
granting leave to appeal was entered.
2005] P
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sentencing that the defendant cooperated with law enforce-
ment, the court shall include its determination in the
judgment of sentence.
A
The first issue we must address is what temporal
limits MCL 791.234(10) imposes on when cooperation
must occur and when a court may make a determina-
tion that cooperation occurred.
We agree with the conflict panel in People v Cardenas
that the only temporal limitation the statute places on
a prisoner’s cooperation is that the cooperation must
occur before the filing of a motion for judicial determi-
nation of cooperation. Other than that limitation, the
cooperation may occur at any time before the prisoner
is released on parole. Specifically, we agree with the
following reasoning set out by Judge W
ILDER
in his
partial dissent in Matelic and adopted by the Cardenas
conflict panel:
“Giving the phrases ‘has cooperated’ and ‘have cooper-
ated’ their plain meaning, then, it is clear that the Legis-
lature intended that the prisoner’s cooperation must have
occurred at some time before the prisoner’s application for
parole release under MCL 791.234(10). Similarly, the
phrase ‘had no relevant or useful information to provide’,
when given its plain meaning and considered in relation to
the present perfect tense clause ‘have cooperated,’ ex-
presses the Legislature’s intent that the prisoner must
have lacked information before the prisoner’s application
for treatment under MCL 791.234(10), in order to be found
as a matter of law to have cooperated.” [Cardenas, supra at
518, quoting Matelic, supra at 31-32.]
We conclude also that the statute imposes no limits
on when a court may make a determination that
cooperation occurred. The statute refers to the sentenc-
632 472 M
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624 [June
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ing judge or that judge’s successor in office making the
determination of cooperation:
If the sentencing judge, or his or her successor in office,
determines on the record that a prisoner...has cooper-
ated with law enforcement....[MCL791.234(10).]
The statutory language that a successor judge may
make a finding of cooperation indicates that there may
be cases where such a finding can and would be made
after sentencing. Under the language of the statute, a
judge may make the determination that a prisoner has
cooperated at any time before an order of parole is
entered.
B
The next question to consider is what constitutes
“cooperation” for the purpose of MCL 791.234(10).
i
The statute specifically provides: “The prisoner is
considered to have cooperated with law enforcement if
the court determines on the record that the prisoner
had no relevant or useful information to provide.” MCL
791.234(10) (emphasis added). This use of the past
tense, “had,” indicates that defendant must at no time
have had any relevant or useful information, not merely
that any information he once had is no longer relevant
or useful. We hold that a prisoner who has provided to
law enforcement information that was found to be
neither useful nor relevant can be considered to have
cooperated with law enforcement if that prisoner never
had any relevant or useful information to provide. But
a prisoner who never provided any information or who
had relevant or useful information to provide and chose
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not to provide this information when it was still rel-
evant or useful cannot be considered to have cooperated
with law enforcement.
Defendant alleges that he should be found to have
cooperated because he never had any useful or relevant
information to provide. Before sentencing, in 1995,
defendant stated that he had nothing to say about the
offense, that he was being framed, and that he knew the
police “let the perpetrators get away scott free.” When
petitioning for the certification of cooperation, eight
years after his conviction, defendant advised the trial
court that at the time he was sentenced he “had no
useful or relevant information to provide.” In his brief
on appeal to this Court, defendant also asserted that he
“answered the questions the police asked of him, but
was not able to tell the police anything about drugs and
drug sales for he knew nothing about those things.”
Because defendant never provided any information to
law enforcement, he cannot be considered to have
cooperated.
Further, despite defendant’s protestations of inno-
cence, defendant was convicted of possession with in-
tent to deliver over 650 grams of cocaine and conspiracy
to commit possession with intent to deliver over 650
grams of cocaine. We note that MCL 791.234(10) applies
only to prisoners who have been convicted of violating
or conspiring to violate MCL 333.7401(2)(a)(i), which
prohibits manufacturing, creating, delivering, or pos-
sessing with intent to manufacture, create, or deliver a
schedule 1 or 2 controlled substance that is in an
amount of 650 grams or more. It may be presumed that
a prisoner convicted of one of these crimes would have
the following relevant or useful information for law
enforcement: where the prisoner got the drug, how he
or she processed it, how he or she intended to deliver it,
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and to whom he or she intended to deliver it. On the
basis of defendant’s convictions, and the facts sur-
rounding them, we conclude that defendant did have
relevant or useful information that he could have given
to law enforcement at the time of his arrest or convic-
tion.
Defendant could have disclosed to the police the
name of the person who shipped the cocaine to him, the
names of the other people involved in the drug ring, and
how he was planning to distribute the drugs. At the
time of defendant’s arrest or conviction, this informa-
tion would have been relevant or useful. Because defen-
dant had relevant or useful information to provide and
chose not to provide this information, defendant cannot
be considered to have cooperated with law enforcement.
ii
Cooperation can also include providing useful or
relevant information to law enforcement. MCL
791.234(10) states that “[t]he prisoner is considered to
have cooperated with law enforcement if the court
determines on the record that the prisoner had no
relevant or useful information to provide.” The clear
implication is that a prisoner is also considered to have
cooperated with law enforcement if the prisoner has
provided relevant or useful information. The prisoner
bears the burden of proving that he or she has provided
all the information he or she possesses about a crime;
the prisoner cannot pick and choose what information
he or she is prepared to disclose.
We note that the statute does not limit the relevant
or useful information to information about the crime
for which the prisoner was convicted. If a prisoner who
was convicted of possession with intent to deliver over
2005] P
EOPLE V
S
TEWART
635
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650 grams of cocaine had relevant or useful information
on a murder, providing that information to law enforce-
ment could be cooperation.
Defendant alleges that he should be found to have
cooperated because he is willing to provide relevant and
useful information to law enforcement in the future.
Defendant’s statement in his petition for certification of
cooperation that he was “ready and willing to proffer
any relevant or useful information that he may have,
without undue haste,” is an offer of future cooperation.
But, as we stated in part III(A) of this opinion, a
prisoner’s cooperation must have occurred before the
petition for certification of cooperation is filed. It is not
sufficient for defendant to allege that he would be
willing to cooperate in the future.
iii
Finally, defendant alleges that on the basis of his
conduct before and following his arrest, he should be
found to have cooperated with law enforcement. “Co-
operate” is defined as “to work together; 1) to act or
work together with one another or others for a common
purpose.” Webster’s New World Dictionary, Second Col-
lege Edition. Considered in light of the statute, coop-
eration would include conduct such as participating in a
controlled drug buy or a sting operation, or engaging in
some other conduct to work with law enforcement
toward a common goal.
3
The trial judge would deter-
mine, on the basis of the evidence in each individual
3
The discussion of whether conduct, rather than providing
information, can constitute cooperation under MCL 791.234(10) is
not dicta, because the defendant in this case alleged that on the
basis of certain conduct on his part he should be found to have
cooperated with law enforcement.
636 472 M
ICH
624 [June
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case, whether the prisoner had cooperated within the
meaning of MCL 791.234(10).
Defendant asserts that he should be found to have
cooperated with law enforcement on the basis of the
following conduct:
[D]efendant did not endeavor to hide or destroy evi-
dence after his co-defendants[’] arrest; and he did not
tamper with or intimidate witnesses. Defendant did not
flee to avoid prosecution prior to his arrest nor during the
interval between his release on bond and subsequent
conviction. At all times Defendant was polite and courteous
to investigating officers and officers of the court. [Defen-
dant’s August 6, 2002, brief in support of motion for
certification of cooperation, p 6.]
But defendant’s alleged conduct does not constitute
cooperation under the statute. Defendant’s actions in
not hiding or destroying evidence, not intimidating
witnesses, not fleeing to avoid prosecution, and being
courteous to the investigating officers did not amount
to working with law enforcement for a common pur-
pose. Defendant refrained from impeding law enforce-
ment personnel in their purpose, but did nothing to
work toward that purpose with the law enforcement
personnel.
C
The final question concerns when a prisoner is en-
titled to an evidentiary hearing to determine whether
the prisoner has cooperated within the meaning of MCL
791.234(10).
We agree with the Cardenas conflict panel that the
prisoner has the burden of initially showing, by affida-
vit or otherwise, that he or she has already cooperated
with law enforcement or that he or she provided any
information he or she had to law enforcement, but at no
2005] P
EOPLE V
S
TEWART
637
O
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time before filing the motion did he or she have any
relevant or useful information to provide. The sentenc-
ing court would then have the discretion to conduct
such a hearing after reviewing the evidence, in the
event it concludes that a genuine and material factual
issue exists regarding whether the prisoner cooperated.
Here, we have already found that defendant’s alleged
conduct did not constitute cooperation; defendant has
not alleged that he has provided any useful or relevant
information; and we have concluded that defendant
cannot be considered to have cooperated because he
previously had useful or relevant information that he
did not provide to the police. Defendant has not met his
burden of initially showing that he has cooperated with
law enforcement and, therefore, is not entitled to an
evidentiary hearing.
IV. CONCLUSION
We affirm the trial court’s order denying defendant’s
motion for judicial certification of cooperation.
T
AYLOR
, C.J., and C
AVANAGH,
C
ORRIGAN
, and Y
OUNG
,
JJ., concurred with W
EAVER
,J.
M
ARKMAN,
J. (concurring). I agree with the majority
that defendant has not met his burden of establishing
that he has cooperated with law enforcement, and, thus,
I agree with its affirmance of the trial court’s order
denying defendant’s motion for certification of coopera-
tion. I write separately to set forth two areas of concern.
First, I disagree with the majority that “a prisoner
who never provided any information . . . cannot be
considered to have cooperated with law enforcement.”
Ante at 633-634. While this may be reasonable as a
matter of policy, it is simply inconsistent with the
638 472 M
ICH
624 [June
C
ONCURRING
O
PINION BY
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ARKMAN
,J.
direction of the Legislature. MCL 791.234(10) states
that a “prisoner is considered to have cooperated with
law enforcement if the court determines on the record
that the prisoner had no relevant or useful information
to provide.” The majority appends to the Legislature’s
definition the further requirement that a prisoner must
have provided some information to law enforcement. It
thus adds language to the statute that is not there.
While I can conceive of few instances in which a silent
prisoner will ever be able to satisfy his burdens under
the statute, I nonetheless disagree with the majority’s
substitution of its own definition of “cooperation” for
that of the Legislature.
Second, I would not address, in dictum, as the
majority does, whether “cooperation” under MCL
791.234(10) “include[s] conduct such as participating in
a controlled drug buy or a sting operation,” and
whether “cooperation” pertains to providing informa-
tion about crimes unrelated to the crime for which the
prisoner has been convicted. Ante at 635, 636.
1
Perhaps
precisely because it is dictum, and because these mat-
ters have not been briefed by the parties, I find the
majority’s discussion to be cursory and insufficiently
respectful of the fact that there may be alternative,
plausible understandings of MCL 791.234(10). Again,
the majority sets forth a reasonable policy, but it fails to
1
I am puzzled by the majority’s assertion that its discussion of these
matters does not constitute dictum. Ante at 636 n 3. The prosecutor has
not argued that defendant did not “cooperate” by failing to participate in
a controlled drug buy, and defendant has not argued to the contrary. And
the prosecutor has not argued that defendant did not “cooperate” by
failing to provide information about an unrelated crime, and defendant
has not argued to the contrary. That defendant has asserted one form of
conduct as “cooperation”—namely, his failure to resist the police, an
absurd argument correctly rejected by the majority—does not properly
allow the majority to decide whether every other conceivable form of
“conduct” constitutes “cooperation.”
2005] P
EOPLE V
S
TEWART
639
C
ONCURRING
O
PINION BY
M
ARKMAN
,J.
adequately explain why such policy is compelled by the
statute. I would avoid this dictum, and await a case in
which these issues can be explored more thoroughly,
and in a more relevant setting.
K
ELLY,
J. (concurring in result only). I concur that
defendant did not qualify for a certificate of coopera-
tion. However, I disagree with several crucial aspects of
the majority’s interpretation of MCL 791.234(10).
The majority opinion creates the requirement that,
to be eligible for credit for cooperation under MCL
791.234(10), a prisoner must provide law enforcement
with all the information he has about a crime. The
statute does not contain this requirement. Moreover, I
believe that the Legislature did not intend that the
statute should be interpreted to include it.
One might reflect that a prisoner providing less than
all the information he possesses about a crime could
nonetheless be very helpful to law enforcement. That
may explain why the Legislature chose to confer the
benefit of early parole eligibility using such general
terms. It permitted the benefits to be conferred if the
prisoner is shown to have “cooperated with law enforce-
ment,” and it refrained from indicating what consti-
tutes cooperation and how much cooperation is enough.
Moreover, the Legislature chose not to limit the
statute’s benefit to prisoners who provide information
that is relevant and useful. Rather, it specified that the
prisoner may be found to have cooperated with law
enforcement even if the court determines that he had
no relevant or useful information to provide. MCL
791.234(10). The Legislature pointedly left it to the
discretion of the judge to determine how much coopera-
tion is sufficient to earn the benefit of early parole
eligibility.
640 472 M
ICH
624 [June
O
PINION BY
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ELLY
,J.
For these reasons, I concur only in the result of
Justice W
EAVER
’s majority opinion.
2005] P
EOPLE V
S
TEWART
641
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PINION BY
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ELLY
,J.
STUDIER v MICHIGAN PUBLIC SCHOOL EMPLOYEES’
RETIREMENT BOARD
Docket Nos. 125765, 125766. Argued January 12, 2005 (Calendar No. 2).
Decided June 28, 2005.
Alberta Studier and five other retirees from public schools brought
an action in the Ingham Circuit Court against the Michigan Public
School Employees’ Retirement Board and others, alleging that the
defendants violated US Const, art I, § 10, Const 1963, art 1, § 10,
and Const 1963, art 9, § 24 by increasing the plaintiffs’ prescrip-
tion drug copayments and deductibles under their health care
plan. The court, Lawrence M. Glazer, J., granted summary dispo-
sition in favor of the defendants, refusing to find that health care
benefits constitute “accrued financial benefits” under Const 1963,
art 9, § 24 and finding no impairment of contract. The plaintiffs
appealed. The Court of Appeals, F
ITZGERALD
,P.J., and N
EFF
and
W
HITE
, JJ., affirmed, holding that the health care benefits are not
“accrued financial benefits” under Const 1963, art 9, § 24 and that
the Legislature’s enactment of MCL 38.1391(1) created a contract
with the plaintiffs, but that the impairment of the contract was de
minimis and was not unconstitutional. 260 Mich App 460 (2004).
The Supreme Court granted leave to appeal on applications by the
plaintiffs and the defendants. 471 Mich 875 (2004).
In an opinion by Chief Justice T
AYLOR
, joined by Justices
C
ORRIGAN,
Y
OUNG
,andM
ARKMAN
, the Supreme Court held:
The Court of Appeals properly held that health care benefits
paid to public school retirees do not constitute “accrued financial
benefits” that are subject to protection from diminishment or
impairment by Const 1963, art 9, § 24. The statute establishing
the health care benefits, MCL 38.1391(1), did not create a contract
that could not be changed by a later legislature without impairing
a contractual obligation in violation of US Const, art I, § 10 and
Const 1963, art 1, § 10. The Court of Appeals erred in holding that
the statute created a contract. However, because the Court of
Appeals reached the correct result, the Court’s affirmance of the
trial court’s order of summary disposition in favor of the defen-
dants must be affirmed.
642 472 M
ICH
642 [June
1. The primary objective in determining whether health care
benefits are included within the phrase “accrued financial ben-
efits” in Const 1963, art 9, § 24 is to determine the interpretation
that the people would have given the provision when they
adopted it. A review of the common dictionary definitions of the
terms “accrued” and “financial” at the time of the ratification of
the provision shows that the ratifiers of our Constitution would
have commonly understood the phrase “accrued financial ben-
efits” to include only those pension benefits consisting of mon-
etary payments that increase or grow over time, such as pension
payments or a retirement allowance, and, thus, only intended for
art 9, § 24 to protect such benefits. The ratifiers would not have
interpreted the phrase to include health care benefits.
2. MCL 38.1391(1) did not create a contractual right on the
part of the plaintiffs to receive health care benefits. The plaintiffs
failed to overcome the presumption that statutes do not create
contractual rights unless the statutory language is plain and
susceptible of no other reasonable construction than that the
Legislature intended to be bound by a contract.
Justice W
EAVER
, concurring, wrote separately to state her
agreement with the reasoning and conclusions of the majority that
the Legislature did not intend to create a contractual right subject
to Const 1963, art 1, § 10 and US Const, art I, § 10 when it
provided for the payment of health care benefits to retired public
school employees through MCL 38.1391(1). Citing Justice R
ILEY
’s
reasoning in Musselman v Governor, 448 Mich 503, 526 (1995)
(Musselman I) and her concurrence in Musselman v Governor (On
Rehearing), 450 Mich 574 (1996) (Musselman II), Justice W
EAVER
also agreed with the majority’s conclusion that health care ben-
efits paid to public school retirees are not “accrued financial
benefits” under Const 1963, art 9, § 24.
Affirmed.
Justice C
AVANAGH
, joined by Justice K
ELLY
, dissenting, stated
that retirement health care benefits earned by public school
employees constitute “accrued financial benefits” that are pro-
tected from diminishment or impairment under Const 1963, art
9, § 24. R etirement health care benefits for public school employ-
ees are a contractual right created by MCL 38.1391, and the
contractual right is subject to the protections of US Const, art I,
§ 10 and Const 1963, art 1, § 10 against impairment of the state’s
contractual obligation through subsequent legislation. There are
significant questions regarding the accuracy of the
2005] S
TUDIER V
MPSERB 643
record used by the lower courts to determine if a substantial
impairment has occurred. The matter should be remanded for
further review.
1. S
CHOOLS —
P
UBLIC
S
CHOOL
E
MPLOYEES’
R
ETIREMENT
S
YSTEM —
H
EALTH
C
ARE
B
ENEFITS
.
Health care benefits paid to public school retirees do not constitute
“accrued financial benefits” that are subject to protection from
diminishment or impairment under Const 1963, art 9, § 24 (MCL
38.1391[1]).
2. S
CHOOLS —
P
UBLIC
S
CHOOL
E
MPLOYEES’
R
ETIREMENT
S
YSTEM —
H
EALTH
C
ARE
B
ENEFITS
.
The statute that established health care benefits for public school
retirees did not create for retirees a contractual right to receive
health care benefits that could not be changed by a later legisla-
ture without impairing a contractual obligation in violation of the
federal and state constitutions (US Const, art I, § 10; Const 1963,
art 1, § 10; MCL 38.1391[1]).
White, Schneider, Young & Chiodini, P.C. (by Karen
Bush Schneider, James A. White, and J. Matthew
Serra), for the plaintiffs.
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, and Larry F. Brya, Tonatzin M. Alfaro
Maiz, and Suzanne R. Dillman, Assistant Attorneys
General, for the defendants.
Amici Curiae:
Keller Thoma, P.C. (by Dennis B. DuBay, Richard W.
Fanning, Jr., and Barbara A. Rohrer), for the Michigan
Municipal League and the Michigan Townships Asso-
ciation.
Miller, Canfield, Paddock and Stone, PLC (by Orin D.
Brustad and Larry J. Saylor), and Butzel Long (by
Robert G. Buydens and John H. Dudley, Jr.) for the
Board of Governors of Eastern Michigan University,
Central Michigan University, Lake Superior State Uni-
644 472 M
ICH
642 [June
versity, Western Michigan University, Northern Michi-
gan University, Ferris State University, and Michigan
Technological University.
Fletcher Clark Tomlinson Fealko & Monaghan, P.C.
(by Gary A. Fletcher and William L. Fealko), for County
of St. Clair.
Thrun Law Firm, P.C. (by C. George Johnson and Roy
H. Henley), for Michigan Association of School Boards,
Michigan School Business Officials, and Michigan As-
sociation of School Administrators.
T
AYLOR,
C .J. We granted leave in this case to consider
two issues. The first is whether health care benefits paid
to public school retirees constitute “accrued financial
benefits” subject to protection from diminishment or
impairment by Const 1963, art 9, § 24. We hold that they
do not and, accordingly, affirm the Court of Appeals
determination on this issue.
1
The second issue is
whether the statute establishing the health care ben-
efits, MCL 38.1391(1), created a contract with the
public school retirees that could not be changed by a
later legislature because to do so would unconstitution-
ally impair an existing contractual obligation in viola-
tion of US Const, art I, § 10 and Const 1963, art 1, § 10.
The Court of Appeals determined that MCL 38.1391(1)
established a contract, but that the Legislature’s sub-
sequent changes were insubstantial and, thus, there
was no constitutionally impermissible impairment of
contract. The Court of Appeals erred on this issue
because MCL 38.1391(1) did not create a contract.
However, because the Court of Appeals reached the
correct result, we affirm its determination that the
1
260 Mich App 460; 679 NW2d 88 (2004).
2005] S
TUDIER V
MPSERB 645
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circuit court properly entered summary disposition in
defendants’ favor.
I. FACTUAL HISTORY AND PROCEDURAL POSTURE
The Michigan Public School Employees’ Retirement
Board (board) began providing a health care plan for
public school retirees in 1975 pursuant to amendments
made by 1974 PA 244 to the former Public School
Employees Retirement Act, 1945 PA 136, which was the
predecessor of the current Public School Employees
Retirement Act, 1980 PA 300, MCL 38.1301 et seq. Since
that time, participants in the plan have been required
to pay deductibles and copays for prescription drugs,
and the amounts of the deductibles and copays have
gradually increased throughout the years because of
numerous amendments the board has made to the plan
to reflect the rising costs of health care and advances in
medical technology. The present case arises from the
two most recent amendments made to the plan by the
board. The first amendment became effective on Janu-
ary 1, 2000, and increased the amount of the deduct-
ibles that retirees are required to pay. The second
amendment occurred on January 21, 2000, and in-
creased the copays and out-of-pocket maximums that
retirees are required to pay for prescription drugs. The
Court of Appeals succinctly summarized those amend-
ments as follows:
The amendments modified the plan’s prescription drug
copayment structure and out-of-pocket maximum for pre-
scription drugs effective April 1, 2000, and also imple-
mented a formulary effective January 1, 2001. A formulary
is a preferred list of drugs approved by the federal Food and
Drug Administration that is designed to give preference to
those competing drugs that offer the greatest therapeutic
646 472 M
ICH
642 [June
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benefit at the most favorable cost. Existing maintenance
prescriptions outside the formulary were grandfathered in
and subject only to the standard copayment of twenty
percent of the drug’s cost, with a $4 minimum and a $20
maximum.
The prescription drug copayment was changed to a
twenty percent copay, with a $4 minimum and $20 maxi-
mum for up to a one-month supply. The copay maximum
for mail-order prescription copayment was set at $50 for a
three-month supply. A $750 maximum out-of-pocket co-
pay for each calendar year was also established. [The plan
did not previously contain an annual out-of-pocket maxi-
mum.] Under the formulary, eligible persons pay an
additional twenty percent of a new nonformulary drug’s
approved cost only when use of the nonformulary drug is
not preapproved by the drug plan administrator.
The board also adopted a resolution to increase health
insurance deductibles from $145 for an individual to $165,
and from $290 to $330 for a family, effective January 1,
2000. The deductibles do not apply to prescription drugs.
[2]
Plaintiffs, six public school retirees, filed suit for
declaratory and injunctive relief against the board, the
Michigan Public School Employees’ Retirement System
(MPSERS), the Michigan Department of Management
and Budget, and the Treasurer of the state of Michigan.
Although plaintiffs’ complaint contained three counts,
only counts I and II remain for our consideration.
Count I alleged that the copay and deductible increases
violate Const 1963, art 9, § 24, which prohibits the state
or a political subdivision from diminishing or impairing
the “accrued financial benefits” of any pension plan or
retirement system it offers. Count II alleged that the
copay and deductible increases violate Const 1963, art
1, § 10 and US Const, art I, § 10, both of which prohibit
2
260 Mich App at 466-467.
2005] S
TUDIER V
MPSERB 647
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the enactment of a law that impairs an existing contrac-
tual obligation.
Both sides moved for summary disposition on these
counts and the trial court granted defendants’ motion
pursuant to MCR 2.116(C)(10). With respect to count I,
the trial court rejected plaintiffs’ claim that health care
benefits are “accrued financial benefits” under Const
1963, art 9, § 24, holding that the Court of Appeals and
this Court “ ‘have been squarely faced with the oppor-
tunity to rule on this question and have declined to do
so....’”260Mich App at 462. With respect to count II,
the trial court, after noting the similarity between the
MPSERS health care plan and those offered by other
states, concluded that MCL 38.1391(1) does establish a
contract with the plaintiffs but that, because the pro-
portions of the total costs for deductibles and copays
borne by the plaintiffs were essentially unchanged, the
impairment was too insubstantial to create an impair-
ment the law would recognize.
Plaintiffs appealed to the Court of Appeals, which
affirmed the trial court’s ruling entirely. Thus, the
panel held that health care benefits are not “accrued
financial benefits” subject to protection by Const 1963,
art 9, § 24, and that the Legislature’s enactment of
MCL 38.1391(1) created a contract, but the impairment
was too de minimis to be recognized.
Plaintiffs applied for leave to appeal to this Court,
seeking to challenge the Court of Appeals determina-
tions that health care benefits are not “accrued finan-
cial benefits” protected by Const 1963, art 9, § 24 and
that the deductible and copay increases implemented by
the health care plan amendments are not a substantial
impairment of plaintiffs’ contractual right to receive
health care benefits. Defendants filed an application for
648 472 M
ICH
642 [June
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leave to appeal, seeking to challenge the Court of
Appeals conclusion that MCL 38.1391(1) vests plaintiffs
with a contractual right. We granted both applications
and ordered that they be submitted together.
3
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision
regarding a motion for summary disposition. Taxpayers
of Michigan Against Casinos v Michigan, 471 Mich 306,
317; 685 NW2d 221 (2004). This case also involves
constitutional issues, as well as issues of statutory
construction. These issues are reviewed de novo by this
Court. Wayne Co v Hathcock, 471 Mich 445, 455; 684
NW2d 765 (2004).
III. ANALYSIS OF CONST 1963, ART 9, § 24
Const 1963, art 9, § 24 provides:
The accrued financial benefits of each pension plan and
retirement system of the state and its political subdivisions
shall be a contractual obligation thereof which shall not be
diminished or impaired thereby.
Financial benefits arising on account of service rendered
in each fiscal year shall be funded during that year and
such funding shall not be used for financing unfunded
accrued liabilities.
These two clauses unambiguously prohibit the state
and its political subdivisions from diminishing or im-
pairing “accrued financial benefits,” and require them
to fund “accrued financial benefits” during the fiscal
year for which corresponding services are rendered. To
apply this, we are called upon to determine what is an
3
471 Mich 875 (2004).
2005] S
TUDIER V
MPSERB 649
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“accrued financial benefit” and, in particular, whether
health care benefits are such a benefit.
This Court has twice considered the issue whether
health care benefits fall within the ambit of “accrued
financial benefits” protected by art 9, § 24. In the first
instance, Musselman v Governor, 448 Mich 503; 533
NW2d 237 (1995) (Musselman I), six members of this
Court
4
considered a constitutional challenge to the
state’s failure to fund retirement health care benefits
being earned by nonretired public school employees
during the 1990-1991 school year. In determining
whether the state’s failure to do so violated the “pre-
funding” requirement of the second clause of art 9, § 24,
a four-member majority of this Court determined that
health care benefits are, indeed, included within the
term “accrued financial benefits.” Focusing primarily
on statements by some of the constitutional delegates
who supported art 9, § 24 that they were concerned
about the future ability of governmental entities to pay
retirement benefits if the entities did not set aside
funding to do so during each year of a public employee’s
service,
5
the majority reasoned that “because the pur-
pose of the provision is to prevent governmental units
from amassing bills for pension payments that they do
not have money to pay, we hold that the term ‘financial
benefits’ must include retirement health care benefits.”
Musselman I, supra at 513. Justice R
ILEY
, joined by
Justice L
EVIN
, dissented from this portion of the majori-
ty’s analysis primarily on the basis of her conclusion
that the term “financial” is commonly understood to
4
Justice W
EAVER
did not participate. 448 Mich at 503.
5
Musselman I, supra at 512-513, quoting 1 Official Record, Constitu-
tional Convention 1961, p 772 (delegate Stafseth); Musselman I, supra at
512 n 5, quoting 1 Official Record, Constitutional Convention 1961, p 771
(delegate Van Dusen).
650 472 M
ICH
642 [June
O
PINION OF THE
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connote monetary obligations and, thus, the term “fi-
nancial benefits” does not encompass health care ben-
efits. Id. at 525-532.
This Court subsequently granted rehearing in Mus-
selman v Governor (On Rehearing), 450 Mich 574; 545
NW2d 346 (1996) (Musselman II), and the prior major-
ity lost a vote because Justice B
RICKLEY
stated that he no
longer believed that interpretation of art 9, § 24 was
necessary to resolve the case. Musselman II, supra at
576-577. Justice W
EAVER
, now participating, joined Jus-
tice R
ILEY
’s dissent on the issue and also wrote sepa-
rately, saying that the electorate could not have in-
tended the phrase “accrued financial benefits” to
include health care benefits because the pension and
retirement systems in place at the time art 9, § 24 was
adopted consisted only of monthly stipends. Id. at
579-580. Justice W
EAVER
further concluded that state-
ments by constitutional convention delegates show that
they had employed the phrase “accrued financial ben-
efits” for the specific purpose of limiting the contractual
right of public school employees under art 9, § 24 to
deferred compensation embodied in a pension plan.
Musselman II, supra at 580, quoting 1 Official Record,
Constitutional Convention 1961, pp 771, 773-774 (del-
egate Van Dusen). Thus, with six justices splitting three
to three on the issue, the question whether health care
benefits are included within the phrase “accrued finan-
cial benefits” remained unresolved by this Court. How-
ever, as did the Court of Appeals in the present case,
6
we
agree with Justices R
ILEY
,W
EAVER
, and L
EVIN
that they
are not.
As Justice R
ILEY
correctly pointed out in her dissent
in Musselman I, the majority “misse[d] the mark” by
focusing on the history behind art 9, § 24 and the intent
6
260 Mich App at 473.
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of the constitutional convention delegates in proposing
it, rather than on the interpretation that the people
would have given the provision when they adopted it.
Musselman I, supra at 526. Indeed, we recently stated
the correct standard to be applied when interpreting
constitutional provisions in Hathcock, supra at 468:
The primary objective in interpreting a constitutional
provision is to determine the text’s original meaning to the
ratifiers, the people, at the time of ratification. [People v
Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004).] This rule of
“common understanding” has been described by Justice
C
OOLEY
in this way:
“A constitution is made for the people and by the
people. The interpretation that should be given it is that
which reasonable minds, the great mass of the people
themselves, would give it. ‘For as the Constitution does
not derive its force from the convention which framed, but
from the people who ratified it, the intent to be arrived at
is that of the people, and it is not to be supposed that they
have looked for any dark or abstruse meaning in the
words employed, but rather that they have accepted them
in the sense most obvious to the common understanding,
and ratified the instrument in the belief that that was the
sense designed to be conveyed.’ ” [Traverse City School
Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9
(1971) (emphasis in original), quoting 1 Cooley, Constitu-
tional Limitations (6th ed), p 81.]
In short, the primary objective of constitutional interpre-
tation is to realize the intent of the people by whom and
for whom the constitution was ratified.
In order to reach the objective of discerning the
intent of the people when ratifying a constitutional
provision, we apply the plain meaning of each term used
therein at the time of ratification unless technical, legal
terms were employed. Phillips v Mirac, Inc, 470 Mich
415, 422; 685 NW2d 174 (2004). In this case, the term
652 472 M
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“benefits” is modified by the words “financial” and
“accrued.” Because these adjectives are not technical,
legal terms that would have been ascribed a particular
meaning by those learned in the law at the time the
Constitution was ratified,
7
we discern the intent of the
people in ratifying art 9, § 24 by according the adjec-
tives their plain and ordinary meanings at the time of
ratification.
8
We first note that, despite specifically stating that the
threshold issue in determining whether health care
benefits were subject to the prefunding requirement of
the second clause of art 9, § 24 is whether they consti-
tute “accrued financial benefits” within the meaning of
the first clause of art 9, § 24,
9
the majority in Mussel-
man I did not address the term “accrued.” At the time
that our 1963 Constitution was ratified, the term “ac-
crue” was commonly defined as “to increase, grow,” “to
come into existence as an enforceable claim; vest as a
right,” “to come by way of increase or addition: arise as
a growth or result,” “to be periodically accumulated in
the process of time whether as an increase or a de-
crease,” “gather, collect, accumulate,” Webster’s Third
New Int’l Dictionary (1961), p 13, or “to happen or
result as a natural growth; arise in due course; come or
fall as an addition or increment,” “to become a present
and enforceable right or demand,” Random House
7
Id. at 425.
8
It seems apparent, but to foreclose confusion that the dissent may
engender, that the 2004 view of the Governmental Accounting Standards
Board (GASB) that the dissent relies on to define terms is entirely
irrelevant to what ratifiers in 1963 would have understood. Furthermore,
the passage quoted from the GASB by the dissent does not even purport
to define any of these terms but merely directs how to handle the
accounting fringe benefits entail.
9
Musselman I, supra at 510.
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American College Dictionary (1964), p 9. Thus, accord-
ing to these definitions, the ratifiers of our Constitution
would have commonly understood “accrued” benefits to
be benefits of the type that increase or grow over
time—such as a pension payment or retirement allow-
ance that increases in amount along with the number of
years of service a public school employee has com-
pleted.
10
Health care benefits, however, are not benefits
of this sort. Simply stated, they are not accrued. Under
MCL 38.1391(1),
11
which the plaintiffs in this case rely
on, neither the amount of health care benefits a public
school employee receives nor the amount of the pre-
mium, subscription, or membership fee that MPSERS
pays increases in relation to the number of years of
service the retiree has performed.
That art 9, § 24 only protects those financial benefits
that increase or grow over time is not only supported
but, indeed, confirmed by the interaction between the
first and second clauses of that provision. Specifically,
the first clause contractually binds the state and its
political subdivisions to pay for retired public employ-
ees’ “accrued financial benefits....” Thereafter, the
second clause seeks to ensure that the state and its
political subdivisions will be able to fulfill this contrac-
tual obligation by requiring them to set aside funding
each year for those “[f]inancial benefits arising on
account of service rendered in each fiscal year....”
Thus, because the second clause only requires the state
and its political subdivision to set aside funding for
“[f]inancial benefits arising on account of service ren-
10
See, e.g., MCL 38.1384.
11
MCL 38.1391(1) provides that “[t]he retirement system shall pay the
entire monthly premium or membership or subscription fee for hospital,
medical-surgical, and sick care benefits for the benefit of a retirant or
retirement allowance beneficiary who elects coverage in the plan autho-
rized by the retirement board and the department.”
654 472 M
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dered in each fiscal year” to fulfill their contractual
obligation of paying for “accrued financial benefits,” it
reasonably follows that “accrued” financial benefits
consist only of those “[f]inancial benefits arising on
account of service rendered in each fiscal year....”
12
Moreover, health care benefits do not qualify as
“financial” benefits. At the time Const 1963, art 9, § 24
was ratified, the term “financial” was commonly de-
fined as “pertaining to monetary receipts and expendi-
tures; pertaining or relating to money matters; pecuni-
ary,” Random House, supra, p 453, or “relating to
finance or financiers,” Webster’s, supra, p 851, and
“finance” was commonly defined as “pecuniary re-
sources, as of... an individual; revenues,” Random
House, supra; accord Webster’s, supra. “Pecuniary,” in
turn, was commonly defined as “consisting of or given
or extracted in money,” or “of or pertaining to money.”
Random House, supra, p 892; accord Webster’s, supra, p
1663. Accordingly, the ratifiers of our Constitution
would have commonly understood “financial” benefits
to include only those benefits that consist of monetary
payments, and not benefits of a nonmonetary nature
such as health care benefits.
We further point out that, even if the phrase “ac-
crued financial benefits” were ambiguous and, thus, it
would be permissible or necessary to consult the state-
ments of delegates during the constitutional convention
debates, the majority’s approach in doing so in Mussel-
man I was fundamentally flawed. Specifically, although
12
The dissent claims that we are not defining words with any reference
to context. This is not the case. Indeed, we are as committed to that
interpretive tool as the dissent claims to be, and this opinion bears
witness to that. The difference between us, however, is that we are
endeavoring to place words in the context of other words while the
dissent places words in the context of something far more vague,
apparently nothing more than its own sense of the preferred result.
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this Court has continually recognized that constitu-
tional convention debates are relevant to determining
the meaning of a particular provision, Lapeer Co Clerk
v Lapeer Circuit Court, 469 Mich 146, 156; 665 NW2d
452 (2003); People v Nash, 418 Mich 196, 209; 341
NW2d 439 (1983) (opinion by B
RICKLEY
, J.), we take this
opportunity to clarify that, when necessary, the proper
objective in consulting constitutional convention de-
bates is not to discern the intent of the framers in
proposing or supporting a specific provision, but to
determine the intent of the ratifiers in adopting the
provision, Nutt, supra at 574.
13
We highlighted this
distinction in Univ of Michigan Regents v Michigan,
395 Mich 52, 59-60; 235 NW2d 1 (1975), in which we
stated:
The debates must be placed in perspective. They are
individual expressions of concepts as the speakers perceive
them (or make an effort to explain them). Although they
are sometimes illuminating, affording a sense of direction,
they are not decisive as to the intent of the general
convention (or of the people) in adopting the measures.
Therefore, we will turn to the committee debates only in
the absence of guidance in the constitutional language...
or when we find in the debates a recurring thread of
explanation binding together the whole of a constitutional
concept.
Bearing this principle in mind, the primary focus of
the majority in Musselman I should not have been on
the intentions of the delegates in supporting art 9, § 24
but, rather, on any statements they may have made that
would have shed light on why they chose to employ the
particular terms they used in drafting the provision to
13
“Constitutional Convention debates and the Address to the People
are certainly relevant as aids in determining the intent of the ratifiers.”
(Emphasis added.)
656 472 M
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aid in discerning what the common understanding of
those terms would have been when the provision was
ratified by the people.
14
In this regard, it is important to
note that the majority in Musselman I did, in fact,
locate such evidence but chose to disregard it, stating:
The only explicit elaboration on the term “accrued
financial benefits” was this remark by delegate Van Dusen:
“[T]he words ‘accrued financial benefits’ were used
designedly, so that the contractual right of the employee
would be limited to the deferred compensation embodied in
any pension plan, and that we hope to avoid thereby a
proliferation of litigation by individual participants in
retirement systems talking about the general benefits
structure, or something other than his specific right to
receive benefits.”
Unfortunately, he addresses which rights are contractual,
and thus enforceable at law under the first clause of Const
1963, art 9, § 24—a question distinct from what must be
prefunded under the second clause. [Musselman I, supra at
510 n 8, quoting 1 Official Record, Constitutional Conven-
tion 1961, pp 773-774.]
This statement by delegate Van Dusen is directly
relevant to discerning the common understanding of
the words “accrued” and “financial” at the time of the
constitutional convention and, indeed, reinforces our
conclusion that the ratifiers would have commonly
14
See, generally, Beech Grove Investment Co v Civil Rights Comm, 380
Mich 405, 425-428; 157 NW2d 213 (1968), in which this Court exam-
ined, among other things, the statements of delegates to the constitu-
tional convention and the Address to the People in order to discern the
meaning of the term “civil rights” as used in Const 1963, art 5, § 29,
but, in doing so, expressly recognized that “it is the Constitution, not
the debates, that was finally submitted to the people. While the debates
may assist in an interpretation of the Constitution, neither they nor
even the Address to the People is controlling.” Beech Grove, supra at
427.
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understood the phrase “accrued financial benefits” to
be one of limitation that would restrict the scope of
protection provided by art 9, § 24 to monetary pay-
ments for past services. The Musselman I majority’s
stated reason for disregarding this statement, that
delegate Van Dusen was stating why that phrase was
used in the first clause of art 9, § 24, and not why it was
used in the second clause, is illogical. Stated simply,
there is no reason to believe that the ratifiers would
have interpreted the phrase “accrued financial ben-
efits” any differently when reading the second clause
than they would have when reading the first. Indeed, it
would be unreasonable to assume, in the circumstance
where they were drafted together and presented to the
ratifiers at the same time, that there was any other
intent. In discussing this concept, Justice C
OOLEY
stated, “[a]s a general thing, it is to be supposed that
the same word is used in the same sense wherever it
occurs in a constitution.” 1 Cooley, Constitutional Limi-
tations (8th ed), p 135.
15
Thus, in summary, we hold that health care benefits
are not protected by Const 1963, art 9, § 24 because
they neither qualify as “accrued” benefits nor “finan-
15
See, also, Lockwood v Comm’r of Revenue, 357 Mich 517, 536-537; 98
NW2d 753 (1959) (C
ARR
, J., dissenting):
It is incredible that the legislature in submitting to popular
vote the proposed amendment [of Const 1908, art 10, § 23] at the
general election in 1954, or that the people in voting thereon,
intended that the term “sales tax” as used in the clauses of said
amendment providing for the apportionment of sales tax funds in
the manner stated therein, and in inhibiting the legislature from
increasing the sales tax above 3%, intended to use the term in
question with different meanings. In other words, it must be
assumed that the designation was used in the proviso imposing
limitation on the power of the legislature with reference to the
increase in the sales tax with exactly the same meaning as clearly
intended in the so-called diversion clauses. [Emphasis added.]
658 472 M
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cial” benefits as those terms were commonly under-
stood at the time of the Constitution’s ratification and,
thus, are not “accrued financial benefits.”
IV. ANALYSIS OF CONST 1963, ART 1, § 10
AND US CONST, ART I, § 10
The plaintiffs here assert that, by enacting MCL
38.1391(1), the Legislature created a contractual right
by public school retirees to receive health care benefits
and, further, that this contractual right could not be
altered or abolished by successive legislatures without
violating Const 1963, art 1, § 10
16
and US Const, art I,
§ 10,
17
both of which prohibit the state from enacting
any law that impairs existing contractual obligations.
We disagree.
MCL 38.1391(1) provides:
The retirement system
[18]
shall pay the entire monthly
premium or membership or subscription fee for hospital,
medical-surgical, and sick care benefits for the benefit of a
retirant or retirement allowance beneficiary who elects
coverage in the plan authorized by the retirement board
and the department.
[19]
The Court of Appeals determined that this statute
does create for plaintiffs a contractual right to receive
health care benefits, but that the copay and deductible
increases implemented by the board do not amount to a
substantial impairment of that contractual right. How-
16
“No bill of attainder, ex post facto law or law impairing the obligation
of contract shall be enacted.”
17
“No State shall . . . pass any Bill of Attainder, ex post facto Law, or
Law impairing the Obligation of Contracts, or grant any Title of
Nobility.”
18
“Retirement system” refers to the MPSERS. MCL 38.1307(8).
19
“Department” refers to the Department of Management and Budget.
MCL 38.1304(4).
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ever, we conclude that MCL 38.1391(1) does not create
for retirees a contractual right to receive health care
benefits and, therefore, reverse the Court of Appeals
determination on that point.
Of primary importance to the viability of our repub-
lican system of government is the ability of elected
representatives to act on behalf of the people through
the exercise of their power to enact, amend, or repeal
legislation. Therefore, a fundamental principle of the
jurisprudence of both the United States and this state is
that one legislature cannot bind the power of a succes-
sive legislature.
20
We recently reiterated this principle
at length in LeRoux v Secretary of State, 465 Mich 594,
615-616; 640 NW2d 849 (2002), quoting Atlas v Wayne
Co Bd of Auditors, 281 Mich 596, 599; 275 NW 507
(1937):
“The act of one legislative body does not tie the hands of
future legislatures. Cooper, Wells & Co v City of St Joseph,
232 Mich 255 [205 NW 86 (1925)]. The power to amend and
repeal legislation as well as to enact it is vested in the
legislature, and the legislature cannot restrict or limit its
right to exercise the power of legislation by prescribing
modes of procedure for the repeal or amendment of stat-
utes; nor may one legislature restrict or limit the power of
its successors....[Additionally,] [o]ne legislature cannot
enact irrepealable legislation or limit or restrict its own
power, or the power of its successors, as to the repeal of
statutes; and an act of one legislature is not binding on, and
does not tie the hands of, future legislatures.”
Although this venerable principle that a legislative
body may not bind its successors can be limited in some
20
United States v Winstar Corp, 518 US 839, 873; 116 S Ct 2432; 135
L Ed 2d 964 (1996) (opinion by Souter, J.); Community-Service Broad-
casting of Mid-America, Inc v Fed Communications Comm, 192 US App
DC 448, 459; 593 F2d 1102 (1978); Mirac, supra at 430; Ballard v
Ypsilanti Twp, 457 Mich 564, 569; 577 NW2d 890 (1998).
660 472 M
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circumstances because of its tension with the constitu-
tional prohibitions against the impairment of contracts,
thus enabling one legislature to contractually bind
another, Winstar, supra at 872-874, such surrenders of
legislative power are subject to strict limitations that
have developed in order to protect the sovereign pre-
rogatives of state governments, id. at 874-875. A neces-
sary corollary of these limitations that has been devel-
oped by the United States Supreme Court, and followed
by this Court, is the strong presumption that statutes
do not create contractual rights. Nat’l R Passenger Corp
v Atchison, Topeka & Santa Fe R Co, 470 US 451,
465-466; 105 S Ct 1441; 84 L Ed 2d 432 (1985); In re
Certified Question (Fun ‘N Sun RV, Inc v Michigan),
447 Mich 765, 777-778; 527 NW2d 468 (1994). This
presumption, and its relation to the protection of the
sovereign powers of a legislature, was succinctly de-
scribed by the United States Supreme Court in Nat’l R,
supra at 465-466:
For many decades, this Court has maintained that
absent some clear indication that the legislature intends to
bind itself contractually, the presumption is that “a law is
not intended to create private contractual or vested rights
but merely declares a policy to be pursued until the
legislature shall ordain otherwise.” Dodge v. Board of
Education, 302 U.S. 74, 79 [58 S Ct 98; 82 L Ed 57] (1937).
See also Rector of Christ Church v. County of Philadelphia,
24 How. 300, 302 [65 US 300; 16 L Ed 602] (1861) (“Such
an interpretation is not to be favored”). This well-
established presumption is grounded in the elementary
proposition that the principal function of a legislature is
not to make contracts, but to make laws that establish the
policy of the state. Indiana ex rel. Anderson v. Brand, 303
U.S. 95, 104-105 [58 S Ct 443; 82 L Ed 685] (1938). Policies,
unlike contracts, are inherently subject to revision and
repeal, and to construe laws as contracts when the obliga-
tion is not clearly and unequivocally expressed would be to
limit drastically the essential powers of a legislative body.
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Indeed, “ ‘[t]he continued existence of a government would
be of no great value, if by implications and presumptions, it
was disarmed of the powers necessary to accomplish the
ends of its creation.’ ” Keefe v. Clark, 322 U.S. 393, 397 [64
S Ct 1072; 88 L Ed 1346] (1944) (quoting Charles River
Bridge v. Warren Bridge, 11 Pet. 420, 548 [36 US 420; 9 L
Ed 773] (1837)). Thus, the party asserting the creation of a
contract must overcome this well-founded presumption,
Dodge, supra, at 79, and we proceed cautiously both in
identifying a contract within the language of a regulatory
statute and in defining the contours of any contractual
obligation.
The first step in this cautious procession is to exam-
ine the statutory language itself. Nat’l R, supra at 466.
In order for a statute to form the basis of a contract, the
statutory language “must be ‘plain and susceptible of
no other reasonable construction’ than that the Legis-
lature intended to be bound to a contract.” In re
Certified Question, supra at 778, quoting Stanislaus Co
v San Joaquin & King’s River Canal & Irrigation Co,
192 US 201, 208; 24 S Ct 241; 48 L Ed 406 (1904). If the
statutory language “ ‘provides for the execution of a
written contract on behalf of the state the case for an
obligation binding upon the state is clear.’ ” Nat’l R,
supra at 466, quoting Dodge, supra at 78 (emphasis
supplied in Nat’l R). But, “absent ‘an adequate expres-
sion of an actual intent’ of the State to bind itself,”
courts should not construe laws declaring a scheme of
public regulation as also creating private contracts to
which the state is a party. Nat’l R, supra at 466-467,
quoting Wisconsin & Michigan R Co v Powers, 191 US
379, 386-387; 24 S Ct 107; 48 L Ed 229 (1903). In
addition to the absence of contractual language, some
federal courts, when interpreting statutes involving
public-employee pension benefit plans, have expressed
even greater reluctance to infer a contractual obligation
where a legislature has not explicitly precluded amend-
662 472 M
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ment of a plan. Nat’l Ed Ass’n-Rhode Island v Retire-
ment Bd of the Rhode Island Employees’ Retirement
System, 172 F3d 22, 27 (CA 1, 1999). This reluctance
stems not only from the caution against finding an
implied surrender of legislative power, but also from the
realization that legislatures frequently need to utilize
that power to modify benefit programs and compensa-
tion schedules. Id. Further, this reluctance is grounded
in the realization that “it is easy enough for a statute
explicitly to authorize a contract or to say explicitly that
the benefits are contractual promises, or that any
changes will not apply to a specific class of beneficiaries
(e.g., those who have retired).” Id. at 27-28 (citations
omitted). In the area of worker’s compensation, this
Court has also followed this principle and stated that, as
a general rule, a statute will not be held to have created
contractual rights “if ‘the Legislature did not covenant
not to amend the legislation.’ ” In re Certified Question,
supra at 778, quoting Franks v White Pine Copper Div,
422 Mich 636, 654; 375 NW2d 715 (1985). Finally, in
addition to the absence of such clear and unequivocal
statutory language, the circumstances of a statute’s
passage may “belie an intent to contract away govern-
mental powers.” Nat’l R, supra at 468.
The plaintiffs in this case have failed to overcome the
strong presumption that the Legislature did not intend
to surrender its legislative powers by entering into a
contractual agreement to provide retirement health
care benefits to public school employees when it enacted
MCL 38.1391(1). Nowhere in MCL 38.1391(1), or in the
rest of the statute, did the Legislature provide for a
written contract on behalf of the state of Michigan or
even use terms typically associated with contractual
relationships,
21
such as “contract,” “covenant,” or
21
Nat’l R, supra at 467.
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“vested rights.”
22
Had the Legislature intended to sur-
render its legislative powers through the creation of
contractual rights, it would have expressly done so by
employing such terms. Indeed, by its plain language,
the statute merely shows a policy decision by the
Legislature that the retirement system pay “the entire
monthly premium or membership or subscription fee”
for the listed health care benefits on behalf of a retired
public school employee who chooses to participate in
whatever plan the board and the Department of Man-
agement and Budget authorize. However, nowhere in
the statute did the Legislature require the board and
the department to authorize a particular plan contain-
ing a specific monthly premium, membership, or sub-
scription fee or, alternatively, explicitly preclude the
board and the department from amending whatever
plan they authorize.
23
Additionally, nowhere in the
statute did the Legislature require the board and the
department to authorize a plan containing specified
deductibles and copays. In fact, nowhere in the statute
22
It is clear that the Legislature can use such nomenclature when it
wishes to. For instance, when enacting 1982 PA 259, which requires the
state treasurer to pay the principal of and interest on all state obligations,
the Legislature provided in MCL 12.64: “This act shall be deemed a
contract with the holders from time to time of obligations of this state.”
(Emphasis added.) Similarly, when enacting the State Housing Develop-
ment Authority Act, 1966 PA 346, the Legislature provided in MCL
125.1434: “The state pledges and agrees with the holders of any notes or
bonds issued under this act, that the state will not limit or alter the rights
vested in the authority to fulfill the terms of any agreements made with the
holders thereof, or in any way impair the rights and remedies of the
holders until the notes or bonds, together with the interest thereon, with
interest on any unpaid installments of interest, and all costs and
expenses in connection with any action or proceeding by or on behalf of
such holders, are fully met and discharged. The authority is authorized to
include this pledge and agreement of the state in any agreement with the
holders of such notes or bonds.” (Emphasis added.)
23
Nat’l Ed Ass’n-Rhode Island, supra at 27.
664 472 M
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did the Legislature even mention deductibles and co-
pays. Further, nowhere in the statute did the Legisla-
ture covenant that it would not amend the statute to
remove or diminish the obligation of the MPSERS to
pay the monthly premium, membership, or subscription
fee; nor did it covenant that any changes to the plan by
the board and the department, or amendments to the
statute by the Legislature, would apply only to a specific
class or group of public school retirees.
24
Again, had the
Legislature intended to surrender its power to make
such changes, it would have done so explicitly.
Although we need not do so because of the absence of
clear and unequivocal language showing an intent to
contract, we note that the circumstances surrounding
the Legislature’s enactment of MCL 38.1391(1) provide
further evidence that the Legislature did not intend to
contract away its legislative powers.
25
As was discussed
by the Court of Appeals, initially the Legislature re-
quired the MPSERS to pay a portion of the premium for
health care benefits for public school retirees through
the enactment of the predecessor of MCL 38.1391,
former MCL 38.325b of the Public School Employees
Retirement Act, 1945 PA 136, and subsequent legisla-
tures have exercised their powers to amend the statute
many times throughout the years to change the type of
plans that the board could authorize, the criteria for the
beneficiaries on whose behalf the MPSERS could pay
the premiums for various benefits, and the amounts of
those premiums that the MPSERS was required to
pay.
26
Thus, there is no indication that the Legislature
that enacted MCL 38.1391(1) in 1980 intended to do
anything beyond what its predecessors had done—set
24
Id. at 27-28; In re Certified Question, supra at 778.
25
Nat’l R, supra at 468.
26
260 Mich App at 463-465.
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forth a policy to be pursued until one of its successor
legislatures ordained a new policy.
27
Additionally, as was
also analyzed by the Court of Appeals, the health care
plan itself has been amended and modified by the
MPSERS numerous times since 1975, not only to in-
crease the benefits available but also to increase the
amounts of the copays and deductibles that participants
were required to pay.
28
In their appeal to this Court,
plaintiffs have not only conceded that these statutory
amendments and changes to the plan have occurred,
but also expressly conceded during oral argument that
the Legislature and the board have the authority to
make such changes. Thus, plaintiffs themselves, by the
positions they have taken, have effectively recognized
that MCL 38.1391(1) merely established a legislative
policy that could be changed by a successor legislature
rather than providing for a surrender of such legislative
power through the creation of a contractual relation-
ship.
We further note that, as part of the 1979 Public
School Employees Retirement Act, in which MCL
38.1391(1) is included, the Legislature also enacted
MCL 38.1303a(1), which defines “compensation” for
27
Nat’l R, supra at 466.
28
The Court of Appeals, 260 Mich App at 465-466, stated:
The MPSERS provides a health care plan for retirees. Cost-
sharing features have been a part of the health plan since its
inception in 1975. The individual and family deductible component
of the health care plan has gradually increased from 1982 to 1999,
beginning with a deductible of $50 for each person and $100 for
each family in 1982, and gradually rising to a deductible of $145 for
each person and $290 for each family in 1999. Cost sharing for the
prescription drug program also had gradual increases, ranging
from a copay of ten percent in 1975 to a copay of $4 for generic
drugs and $8 for brand name drugs in 1997 through March 31,
2000. There is no dispute that the MPSERS health care plan also
gradually increased the benefits available under the plan.
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public school employees as “the remuneration earned
by a member for service performed as a public school
employee.” Thus, by enacting this statute, the Legisla-
ture recognized that an implied-in-law contractual re-
lationship can arise between the school system and
public school employees. Specifically, a public school
employee can become contractually entitled to “com-
pensation” by first performing services. However, pay-
ment of health care premiums by the MPSERS under
MCL 38.1391(1) is not among the list of items that the
Legislature specifically set forth as being part of an
employee’s “compensation” in MCL 38.1303a(2)(a)
through (h). Additionally, and more importantly, MCL
38.1303a(3) expressly lists items that are not included
within the definition of compensation and includes,
among other things, “[p]ayments for hospitalization
insurance and life insurance premiums,”
29
and “[o]ther
fringe benefits paid by and from the funds of employers
of public school employees.”
30
This causes us to con-
clude that surely the Legislature would not specifically
exclude the payment of health care benefits from the
list of items that a public school employee could, poten-
tially, become contractually entitled to by having per-
formed services but, at the same time, intend to vest
plaintiffs with a contractual right to receive such ben-
efits through the simultaneous enactment of MCL
38.1391(1). Accordingly, it seems evident that the way
to understand these enactments is that the Legislature
intended for payment of health care benefits by the
MPSERS under MCL 38.1391(1) to simply be a “fringe
29
MCL 38.1303a(3)(c) (emphasis added).
30
MCL 38.1303a(3)(d).
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benefit” to which public school employees would never
have a contractual entitlement.
31
Thus, because the plain language of MCL 38.1391(1)
does not clearly indicate that the Legislature intended
to surrender its legislative powers through the statute’s
enactment, we hold that MCL 38.1391(1) does not
create for public school employees a contractual right to
health care benefits. We therefore reverse the Court of
Appeals conclusion to the contrary. However, because
the Court of Appeals ultimately reached the correct
result, we affirm its ultimate conclusion to uphold the
circuit court’s entry of summary disposition in favor of
defendants.
32
V. RESPONSE TO THE DISSENT
We would be remiss if we failed to point out that the
ad hoc analysis employed by the dissent to determine
that public school retirees possess a contractual right to
health care benefits, rendering the Legislature power-
less to alter or do away with them, is particularly
disturbing and, taken to its logical conclusion, would
undermine this state’s constitutionally guaranteed re-
publican system of government.
31
This fact not only belies plaintiffs’ claim that MCL 38.1391(1) shows
a legislative intent to vest public school retirees with a contractual right
to health care benefits, but also renders erroneous the Court of Appeals
statement that “[h]ealth insurance is part of an employee’s benefit
package and the whole package is an element of consideration that the
state contracts to tender in exchange for services rendered by the
employee.” 260 Mich App at 476. Indeed, MCL 38.1303a makes clear that
payment of health care benefits by the MPSERS is not an element of the
consideration that the state contracts to tender as remuneration for a
public school employee’s services.
32
Having concluded that MCL 38.1391(1) does not create a contract,
we need not address plaintiffs’ argument challenging the Court of
Appeals determination that the copay and deductible increases do not
operate as a substantial impairment of a contractual relationship.
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The most treasured civic possession of an American
citizen is the right to self-government. It is the central
pillar and animating force of our constitutions. Thus,
US Const, art IV, § 4 provides that “[t]he United States
shall guarantee to every State in this Union a Republi-
can Form of Government....”TheMichigan Constitu-
tion, Const 1963, art 1, § 1 states similarly that “[a]ll
political power is inherent in the people,” and the
importance the founding generation gave to this can be
seen by its reiteration repeatedly in the documents
preceding, coinciding with, and following the adoption
of the United States Constitution in 1789. Thus, Con-
gress provided in the Northwest Ordinance that the
constitutions and governments of the states to be
formed in the territory, of which states Michigan is one,
“shall be republican....” Northwest Ordinance of
1787, art V. This requirement was carried forward by
Congress when it severed Michigan from the Northwest
Territory in 1800 and made it part of the Indiana
Territory, 2 US Stat, Ch XLI, § 2, and again in 1805
when it likewise severed Michigan from the Indiana
Territory and established the Michigan Territory, 2 US
Stat, Ch V, § 2, by requiring both times that the govern-
ment established in those territories was to be “in all
respects similar” to that provided in the Northwest
Ordinance of 1787.
What this means concretely is that what one legis-
lature has done, pursuant to the majority sentiment at
that time, a later legislature responding to the then
majority can modify or undo. Deprived of this right,
self-government is not just hollow, it is nonexistent.
Yet, as the United States Supreme Court has held
and we have discussed in this opinion, when the Legis-
lature enters into a contract, a subsequent legislature
cannot repudiate that contract. It seems obvious that to
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read what is a contract too broadly swallows the right of
the people to change the course of their governance.
This is the tension that we have attempted to address
and thoroughly analyze, whereas the dissent has just
blithely assumed that any benefit once conferred is a
contract and cannot be altered. This is an ill-considered
notion that in cases yet to be seen, but surely to be seen
if this were to become the majority position, means
that, for example, general assistance welfare benefits
could not be altered, Medicaid would be frozen in its
first enacted form, and, in short, any financial benefit
would be unalterable.
This is not and surely cannot be our law. Yet, the
dissent claims that the recipients of the benefits will be
surprised it is not. Will they? No one should be sur-
prised that benefit battles are fought out in the Legis-
lature. On the contrary, those who could claim legiti-
mate surprise would be our citizens who, were there
two more votes on this Court to join the dissent and
make it a majority, would have lost, in the fog of a
baffling contract analysis, the right to change the
course of their government. Indeed, that would be more
than surprising, it would be revolutionary.
VI. CONCLUSION
We hold that health care benefits are not “accrued
financial benefits” and, thus, are not protected by
Const 1963, art 9, § 24. Accordingly, we affirm the
Court of Appeals on this issue. We further hold that
the Legislature did not intend to create a contractual
relationship with public school employees by enacting
MCL 38.1391(1) and, thus, payment of health care
benefits by the MPSERS is not a contractual right
subject to protection by Const 1963, art 1, § 10 and US
Const, art I, § 10. We therefore reverse the Court of
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Appeals determination on this issue. However, because
the Court of Appeals reached the correct result, we
affirm its determination that the circuit court properly
entered summary disposition in defendants’ favor.
C
ORRIGAN
,Y
OUNG,
and M
ARKMAN,
JJ., concurred with
T
AYLOR,
C.J.
W
EAVER,
J
.(
concurring). I concur in the majority
conclusion and reasoning that the Legislature did not
intend to create a contractual right subject to Const
1963, art 1, § 10 and US Const, art I, § 10 when it
provided for payment of health care benefits to public
school employees through the enactment of MCL
38.1391(1).
Regarding whether health care benefits paid to pub-
lic school retirees are “accrued financial benefits” un-
der Const 1963, art 9, § 24, I concur with the majority
conclusion that they are not. I agree with the majority
that “the ratifiers of our Constitution would have
commonly understood ‘financial’ benefits to include
only those benefits that consist of monetary payments,
and not benefits of a nonmonetary nature such as
health care benefits.” Ante at 655. As noted by Justice
R
ILEY
in her partial concurrence and partial dissent
regarding art 9, § 24 in Musselman v Governor, 448
Mich 503, 526; 533 NW2d 237 (1995) (Musselman I),
“when interpreting the language of the constitution,
unambiguous terms are given their plain meaning.”
Justice R
ILEY
concluded that the “normal usage of the
word ‘financial’ connotes money and ‘money’ connotes
some form of hard currency that can be ‘spent.’ ” Id. at
527. When the Court granted rehearing in Musselman,
I concurred with Justice R
ILEY
’s Musselman I analysis
of the common understanding of the term “accrued
financial benefits” and I continue to agree with her
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analysis today. In Musselman v Governor (On Rehear-
ing), 450 Mich 574; 545 NW2d 346 (1996) ( Musselman
II), I wrote further to note that Justice R
ILEY
’s conclu-
sion was supported by the fact that health care benefits
did not exist when the people ratified the 1963 Michi-
gan Constitution. Because health care benefits did not
exist at that time, the people would not have anticipated
that the pension and retirement systems established by
Const 1963, art 9, § 24 included health care benefits.
Mussleman II at 579.
C
AVANAGH,
J. (dissenting). I believe that retirement
health care benefits earned by public school employees
constitute “accrued financial benefits” that are pro-
tected by our Michigan Constitution from diminish-
ment or impairment. I also believe that the statute that
provides retirement health care benefits for public
school employees, MCL 38.1391, creates a contract with
public school employees and retirees that cannot be
substantially impaired. Because there are significant
questions about the accuracy of the record used by the
lower courts to determine if a substantial impairment
indeed occurred, I would remand for further review.
Accordingly, I respectfully dissent from the majority’s
position that public school employees and retirees are
without protection from the prospect that their retire-
ment health care benefits may be drastically decreased
or even eliminated.
I. HEALTH CARE BENEFITS ARE “ACCRUED FINANCIAL
BENEFITS” WITHIN THE MEANING OF
MICHIGAN’S CONSTITUTION
Const 1963, art 9, § 24 provides the following:
The accrued financial benefits of each pension plan and
retirement system of the state and its political subdivisions
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shall be a contractual obligation thereof which shall not be
diminished or impaired thereby.
Financial benefits arising on account of service rendered
in each fiscal year shall be funded during that year and
such funding shall not be used for financing unfunded
accrued liabilities.
Whether health care benefits are “accrued financial
benefits” has already been addressed by this Court in
Musselman v Governor, 448 Mich 503, 510; 533 NW2d
237 (1995) (Musselman I), and Musselman v Governor
(On Rehearing), 450 Mich 574; 545 NW2d 346 (1996)
(Musselman II). In Musselman I, this Court examined
whether health care benefits are indeed “financial”
benefits. We held that because the purpose of the
constitutional provision is to prevent the state from
amassing bills for pension payments, including health
care benefits, for which the state does not have the
money to pay, the term “financial benefits” includes
retirement health care benefits.
Reflecting on the analysis in Musselman I, I fail to
see its flaws. This Court reasonably concluded that the
goal of the constitutional provision is to ensure that the
state can pay for the commitments it has made. Regard-
less of whether the commitment is for a straightforward
monthly cash allowance to a retiree or for payment of
health care benefits for a retiree, the state must still pay
for its obligations. If the state has failed to set aside an
appropriate amount of money, the situation is still the
same, meaning the state still has a financial conse-
quence.
I believe this interpretation is the one that the people
gave the constitutional provision when it was adopted
because it best reflects the common understanding of
the people. See Soap & Detergent Ass’n v Natural
Resources Comm, 415 Mich 728, 745; 330 NW2d 346
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(1982). The most reasonable interpretation of the
phrase “accrued financial benefits” includes health care
benefits. Health care benefits are given in lieu of
additional compensation to public school employees. A
health care benefit is a financial benefit because it
clearly costs the state money and has an economic value
to the employee. Notably, our Constitution was not
written to include every conceivable aspect of a pension
plan. It was certainly not beyond the understanding of
the ratifiers that health care benefits, which cost the
state money, would be offered as a retirement benefit.
As such, these benefits would need to be protected, just
as monthly cash allowances to retirees must be pro-
tected.
As we stated in Musselman I, supra at 516 n 12,
“Many delegates to the 1961 Constitutional Convention
perceived as unfair the rule that pensions granted by
public authorities were not contractual obligations, but
rather gratuitous allowances that could be revoked at
will.” See, e.g., 1 Official Record, Constitutional Con-
vention 1961, pp 770-774. It should not come as a
surprise that the ratifiers would believe this to be true
about health care benefits that mean as much, if not
more, to many retirees.
Moreover, even if the ratifiers did not imagine every
conceivable pension plan benefit that would be offered,
the “idea behind formulating a general rule, as opposed
to a set of specific commands, is that a rule governs
possibilities that could not have been anticipated at the
time.” Musselman I, supra at 514.
1
The constitutional
1
We believe that this constitution must be a forward looking
document; that it must take cognizance of the problem; that it
must spell out for the future the manner in which these funds
should be managed, so that our children will not, 50 years hence,
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provision was meant to address all public employee
retirement systems; it is entirely reasonable that the
ratifiers would not be aware of every possible retire-
ment benefit being offered to every public employee.
See, e.g., 1 Official Record, Constitutional Convention
1961, p 771. In response to a question whether the state
could increase benefits and whether an increase in
benefits would be a gratuity or an obligation that the
state must fulfill, a constitutional convention delegate
responded as follows: “Certainly there’s nothing here to
prohibit the employer from increasing the benefit struc-
ture.” Id. at 774. “Once the employee, by working
pursuant to an understanding that this is the benefit
structure presently provided, has worked in reliance
thereon, he has the contractual right to those benefits
which may not be diminished or impaired.” Id.
The constitutional principle declared is that accrued
financial benefits, including health care benefits, will be
protected for retirees. Simply, “once an employee has
performed the service in reliance upon the then pre-
scribed level of benefits, the employee has the contrac-
tual right to receive those benefits under the terms of
the statute or ordinance prescribing the plan.” Id.at
771.
In attempting to define the term “accrued financial
benefits,” the majority cites numerous definitions for
the word “accrue,” and I do not quarrel with those
definitions.
2
Indeed, as the majority states, “accrue”
suffer from the fact that we failed to put in enough money to take
care of the benefits attendant upon the service currently per-
formed by public employees. [1 Official Record, Constitutional
Convention 1961, p 771.]
2
While I do not quarrel with the definitions used, I must note that the
majority yet again insists on relying solely on dictionary definitions to the
illogical exclusion of context. “There is no more irritating fellow than the
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means “to increase, grow” and “to come into existence
as an enforceable claim; vest as a right.” Ante at 653
(citation and internal quotation marks omitted). How-
ever, I disagree with the majority’s assertion that the
ratifiers of our Constitution would have commonly
understood “accrued” to mean that an individual’s
benefits must increase or grow over time. The majority
seems to believe that to be an accrued financial benefit,
an employee’s retirement health care benefits must
gradually increase on the basis of the number of years
that the person is employed, yet this is not accurate.
The term “accrued financial benefits” was used to
denote benefits that were contractual obligations on the
part of the state. The term “accrued financial benefits”
was meant to include benefits that an employee had
worked in reliance on and continued to work in reliance
on. This is in contrast to the term “financial benefits,”
which was used in the second clause of the constitu-
tional provision to denote a system in which the ben-
efits earned for the year were funded annually. Because
the second clause only specifically dealt with how to
fund benefits earned in a given year, retirement systems
would eventually need to address the funding for ben-
efits that had been earned in prior years but had not
been properly funded. 1 Official Record, Constitutional
Convention 1961, pp 773-774.
3
man who tries to settle an argument about communism, or justice, or
liberty, by quoting from Webster.” Pflug, ed, The Ways of Language (New
York: The Odyssey Press, Inc, 1967), ch 4, How to Read a Dictionary, p 62.
While dictionary definitions are certainly useful, they must be examined
in context. See also Hayakawa, Language in Thought and Action (New
York: Harcourt, Brace and Co, 1949), ch 4, p 62 (“Interpretation must be
based, therefore, on the totality of contexts.”).
3
The constitutional provision does two things:
[I]n the first paragraph, it provides that the relationship
between the employing unit and the employee shall be a contrac-
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When a public school employee has fulfilled his
commitment and is then entitled to receive health care
benefits once he retires, the employee has an enforce-
able claim to receive the benefits upon retirement.
“Accrued” does not mean that the amount of benefits
the employee will receive during retirement must grow
in conjunction with the employee’s years of service. For
an employee to have an accrued financial benefit, he
must fulfill the obligations set forth by the state. For
plaintiffs, all the events that are necessary for them to
receive their benefits have come into existence. Simply,
plaintiffs went to work and did their jobs for the
required number of years. As our Constitution states,
accrued financial benefits “shall be a contractual obli-
gation thereof which shall not be diminished or im-
paired thereby.” Const 1963, art 9, § 24. Once an
employee has fulfilled his obligation, the state must
fulfill its obligation and be prepared to pay retirement
health care benefits when necessary.
Additionally, even if the term “accrued financial
benefits” were viewed as a term more commonly used
by accountants and actuaries than by laypersons, its
meaning would still encompass retirement health care
benefits. As stated by the Governmental Accounting
Standards Board (GASB), cash payments and other
retirement benefits, such as health care benefits, “are
tual relationship so that the municipality may not change the
relationship at its will. The benefits that have accrued up to a
given time are contractual and must be carried out by the
municipality or by the state. The second paragraph provides that
each year the system shall pay in enough money to fund the
liability arising in that year. It does not require that the system
catch up with all of its past liability, which would be an impossi-
bility in connection with some of the state systems, but it does
require that they shall not go any further behind. [2 Official
Record, Constitutional Convention 1961, p 2659.]
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conceptually similar transactions-both involve deferred
compensation offered in exchange for current services
—and should be accounted for in a similar way.”
Governmental Accounting Standards Board, Account-
ing and Financial Reporting by Employers for Postem-
ployment Benefits Other Than Pensions, Statement
No. 45, June 2004, p 73 (emphasis added).
4
As noted by
the majority, “ ‘[t]he words “accrued financial benefits”
were used designedly, so that the contractual right of
the employee would be limited to the deferred compen-
sation embodied in any pension plan ....’”Ante at 657,
quoting Musselman I, supra at 510 n 8, quoting 1
Official Record, Constitutional Convention 1961, pp
773-774 (emphasis added). By any standard employed,
the meaning of the term “accrued financial benefits”
encompasses retirement health care benefits for public
school employees.
II. HEALTH CARE BENEFITS ARE CONTRACTUAL OBLIGATIONS
The United States Constitution provides in relevant
part, “No State shall...pass any Bill of Attainder, ex
post facto Law, or Law impairing the Obligation of
Contracts....”USConst, art I, § 10, cl 1. Michigan’s
Constitution provides, “No bill of attainder, ex post
facto law or law impairing the obligation of contract
shall be enacted.” Const 1963, art 1, § 10.
Information about retirement health care benefits
for Michigan’s public school employees is set forth in
MCL 38.1391. MCL 38.1391(1) states that the state is
responsible for paying the monthly premiums for plain-
4
The GASB also states that retirement health care benefits, like
monthly cash allowances, arise “from an exchange of salaries and
benefits for employee services rendered and constitute[] part of the
compensation for those services.” Id. at 1. Retirement benefits “are an
exchange of promised benefits for employee services.” Id.at77.
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tiffs’ health care benefits.
5
In Musselman I, supra at
516, this Court stated that the obligation to pay retire-
ment health care benefits “is a contractual right arising
from the fact that employees have worked in reliance on
the statutory promise that the board will pay earned
health care benefits of any member receiving a retire-
ment allowance.” In Musselman I, supra at 519 n 19,
the defendants even conceded “that retirement health
care benefits are contractual benefits subject to Const
1963, art 1, § 10.” Further, “the defendants conceded
that these statutes create a right to receive health
benefits that may not be impaired.” Musselman I, supra
at 505 n 1.
The statute’s intent is clear—in exchange for receiv-
ing years of an employee’s services, the state will pay for
retirement health care benefits. This unconditional
guarantee is what many public school employees and
retirees have relied on throughout the years, and the
state has benefited from that reliance. As stated at the
constitutional convention, “[T]here is no question that
when an employee today takes employment with a
governmental unit, he does so with the idea that there
is a pension plan or retirement system involved.” 1
Official Record, Constitutional Convention 1961, p 773.
The majority’s position now allows the state to choose,
at its whim, not to fulfill its obligation under the
contract even though employees have already per-
formed the responsibilities necessary to fulfill their
obligations under the contract.
The state did not offer retirement health care ben-
efits to public school employees to be charitable; it did
5
MCL 38.1391(1) provides, “The retirement system shall pay the
entire monthly premium or membership or subscription fee for hospital,
medical-surgical, and sick care benefits for the benefit of a retirant or
retirement allowance beneficiary who elects coverage in the plan autho-
rized by the retirement board and the department.”
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so to remain competitive in the marketplace. See 1
Official Record, Constitutional Convention 1961, p 773.
And public school employees do not “receive” these
benefits for free. Because retirement health care ben-
efits cost money, the monetary compensation for public
school employees had to have been factored into the
equation. It is unreasonable to now claim that public
school employees, who received less compensation be-
cause of the benefits they believed they would receive
when they retired, are now no longer entitled to the
health care benefits they worked to receive. Stability in
retirement benefits is likely at least part of the reasons
why many people chose to accept a position with the
public schools or stay in that position, and it is unten-
able to tell these employees and retirees that it was for
naught.
The majority attempts to buttress its argument by
noting the definition for “compensation” provided by
MCL 38.1303a(1). However, the definition of “compen-
sation” in MCL 38.1303a does not indicate that retire-
ment health care benefits are not to be considered
“accrued financial benefits” or are not contractual
obligations that the state must fulfill. The items listed
in MCL 38.1303a are used to determine a retiree’s
monthly cash allowance. See, e.g., MCL 38.1309; MCL
38.1379; MCL 38.1384. However, this does not mean
that the state is absolved of its responsibility to fulfill its
obligations. The majority even states the fundamental
concept that is critical to the analysis of this issue:
“Specifically, a public school employee can become con-
tractually entitled to ‘compensation’ by first perform-
ing services.” Ante at 667. Because retirement health
care benefits for public school employees are deferred
compensation, see ante at 657, I fail to comprehend how
the majority can justify its misapplication of a basic
contract principle. I am quite certain that it comes as a
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surprise to the over 140,000 public school employees
that their retirement health care benefits are nothing
more than a “policy decision” that the Legislature can
choose to alter or eliminate at its whim. To many
retirees, the health care benefits they receive through
their pension plan are every bit as important, if not
more so, than the monthly cash allowance they receive
through their pension plan. Public school employees
surely did not envision that they were afforded no
protection against their retirement health care benefits
being capriciously eliminated. The provision of health
care benefits for retirees is not a gratuitous undertak-
ing by defendants.
6
It is a benefit that is provided to
plaintiffs in exchange for years of service. Defendants
are not altruistically giving plaintiffs these benefits,
plaintiffs earned them through years of hard work and
dedication. Plaintiffs fulfilled their obligations, and the
state should fulfill its obligation.
Finally, contrary to the majority’s panic-stricken
response to the dissent, the Constitution and our sys-
tem of government are not under attack merely because
I disagree with the majority over the interpretation of
the words of the Constitution and the applicable stat-
ute. Regardless of the majority’s attempt to distract the
reader from the issues at hand, reading the plain words
of the statute to indicate that a contract was made with
public school employees and retirees does not mean that
no legislative action can ever be amended or repealed. It
does not mean that welfare benefits could never be
6
In Ramey v Pub Service Comm, 296 Mich 449, 462; 296 NW 323
(1941), this Court held that vacation with pay is not a gratuity—it is
compensation for services rendered. If paid vacation time is not consid-
ered a gratuity, then I cannot fathom how retirement health care benefits
can be considered a gratuity when they are part of the consideration that
was exchanged for the years of service provided by public school employ-
ees.
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altered, as the majority’s rhetoric proclaims. It merely
means that when reading this statute, it is clear that
the words chosen by the Legislature were meant to
oblige the state to provide the retirement health care
benefits that were promised to public school employees.
While the majority accurately states that benefit
battles are fought in the Legislature, it inaccurately
states that benefits “won” can then be changed at the
whim of a subsequent legislature. Once benefits have
been guaranteed to workers and the workers have
served the state in reliance on them, it is unconstitu-
tional to substantially impair the receipt of these
earned benefits.
The dissent states a concept that is really quite
unremarkable. The government, just like any other
party to a contract, must fulfill its obligation. When a
public school employee has worked for years in reliance
on a promise of retirement health care benefits, our
system of government is not challenged by the simple
notion that the state must provide these benefits.
III. ADDITIONAL DISCOVERY IS NECESSARY TO PROPERLY
ASSESS WHETHER DEFENDANTS’ ACTIONS CREATE A
SUBSTANTIAL IMPAIRMENT OF PLAINTIFFS’
CONTRACTUAL RIGHTS
Because plaintiffs’ retirement health care benefits
are a contractual right, the next step is to determine
whether the increases in plaintiffs’ copayments and
deductibles substantially impaired plaintiffs’ contrac-
tual rights. Romein v Gen Motors Corp, 436 Mich 515,
534; 462 NW2d 555 (1990). If plaintiffs’ contractual
rights are impaired, the impairment must be the result
of a legitimate public purpose. Id. at 535. Finally, the
means chosen to carry out the public purpose must be
reasonable.
I must first address defendants’ argument that the
682 472 M
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AVANAGH
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legitimate public purpose of the increases is to ensure
that there are sufficient school funds available for
children. I believe that ensuring high quality education
for our children is a valuable and worthwhile public
purpose that should be one of our state’s highest
priorities. However, defendants’ argument essentially
pits the quality of education for school children against
providing adequate health care benefits for retirees. Yet
meeting the needs of school children and meeting the
needs of retirees are not mutually exclusive. While it
may be challenging, to say the least, to determine the
best way to meet the needs of children and retirees, it
does not mean that the commitment made to our state’s
retirees can be ignored. Merely because meeting our
responsibilities is difficult does not mean that our
responsibilities can be abandoned.
Plaintiffs’ legitimate expectations are that retire-
ment health care benefits will be continued and plain-
tiffs’ portion of the costs for these benefits will not be
significantly altered. It is not sufficient for defendants
to pay the “entire monthly premium” if defendants
disproportionately increase the amount that plaintiffs
must pay for their deductibles and copayments. More-
over, increasing the amount that plaintiffs must pay
over time can certainly amount to a substantial impair-
ment if defendants do in increments what they would
not be allowed to do in one large adjustment.
The amount of copayments and deductibles is linked
to the amount of the monthly premiums. By increasing
copayments and deductibles to extremely high propor-
tions, the defendants could essentially avoid paying any
monthly premium. That would not fulfill the terms of
the contract. While the statute does not specifically
state the amount that the state must pay, like any
contract, the words used by the Legislature must be
2005] S
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construed to ascertain the intent of the parties. See
Sobczak v Kotwicki, 347 Mich 242, 249; 79 NW2d 471
(1956).
Whether there has been a substantial impairment is
largely a factual question that is better resolved after
additional discovery, especially because there have been
claimed inaccuracies in some of the documents submit-
ted by defendants. It is reasonable that the amount that
plaintiffs must pay will increase in logical proportion to
the amount they have historically paid. However, be-
cause plaintiffs raise valid concerns about the accuracy
of reports submitted by defendants, I believe it is
imprudent to determine on the basis of what may
amount to be an inadequate record whether the in-
creases pose a substantial impairment.
IV. CONCLUSION
The years of dedication that public school employees
and retirees have committed to educating and caring for
the children of our state are worth more than empty
promises provided to them by the majority’s approach.
I believe that retirement health care benefits earned by
public school employees constitute “accrued financial
benefits” that are protected by our Michigan Constitu-
tion from diminishment or impairment. I further be-
lieve that retirement health care benefits earned by
public school employees are a contractual right created
by statute, and whether this contractual right was
substantially impaired cannot be determined without
further review by the lower courts. Accordingly, I re-
spectfully dissent.
K
ELLY
, J., concurred with C
AVANAGH
,J.
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BAILEY v OAKWOOD HOSPITAL AND MEDICAL CENTER
Docket No. 125110. Argued December 8, 2004 (Calendar No. 3). Decided
June 29, 2005.
Mary Bailey sought a hearing in the Bureau of Worker’s Disability
Compensation regarding the decision of her employer, Oakwood
Hospital and Medical Center, to terminate payment of worker’s
compensation benefits for work-related injury sustained at a time
when she was certified as vocationally disabled. Oakwood, which
was self-insured and stopped benefits on the basis of its belief that
Bailey was avoiding work, filed a claim against the Second Injury
Fund for reimbursement of benefits paid beyond fifty-two weeks of
the plaintiff’s injury. MCL 418.921. The fund moved to dismiss
Oakwood’s claim on the basis of Oakwood’s failure to comply with
MCL 418.925, which requires an employer’s insurance carrier to
notify the fund of the fund’s potential liability for benefit pay-
ments to a certified vocationally disabled claimant beyond the
employer’s fifty-two weeks of liability. A worker’s compensation
magistrate granted the fund’s motion for dismissal. Oakwood
appealed the dismissal of its claim against the fund to the Worker’s
Compensation Appellate Commission, which reversed the magis-
trate’s decision and remanded the matter to the magistrate with
an instruction that the fund be added as a party. On remand, the
magistrate granted Bailey an open award of benefits, determining
that Oakwood had not proved that Bailey avoided work, that
Oakwood had not notified the fund of the fund’s potential liability,
and that, pursuant to Robinson v Gen Motors Corp, 242 Mich App
331 (2000), dismissal of Oakwood’s reimbursement claim is the
proper remedy for the failure to notify the fund. Oakwood ap-
pealed to the WCAC, challenging the magistrate’s dismissal of the
claim for reimbursement and the magistrate’s finding that Bailey
had not avoided work. The WCAC decided that the magistrate’s
decision to grant an open award of benefits must be reversed, that
dismissal of the fund is required by Robinson, and that the work
avoidance issue was moot in light of its decision. Bailey appealed,
the Bureau of Worker’s and Unemployment Compensation inter-
vened as an appellant, and Oakwood cross-appealed. The Court of
Appeals, J
ANSEN
and M
ARKEY
,JJ.(W
HITBECK
, C.J., concurring),
reversed the decision of the WCAC, holding that pursuant to
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Robinson and Valencic v TPM, Inc, 248 Mich App 601 (2001),
Oakwood’s failure to provide the fund with timely notice precluded
Oakwood from taking advantage of the fifty-two-week limitation of
liability contained in MCL 418.921. The Court remanded the
matter to the WCAC to review Oakwood’s claim that the plaintiff
was avoiding work. 259 Mich App 298 (2003). The Supreme Court
granted Oakwood’s application for leave to appeal. 470 Mich 892
(2004).
In an opinion by Justice K
ELLY
, joined by Chief Justice T
AYLOR
,
and Justices W
EAVER
,C
ORRIGAN
,andY
OUNG
, the Supreme Court
held:
A certified vocationally disabled claimant is entitled to work-
er’s compensation benefits in the same manner as other claimants.
Although an employer’s liability for benefits is limited to those
that accrue during the fifty-two weeks following the injury, the
employer’s carrier must continue to pay benefits after fifty-two
weeks.
The carrier is entitled to reimbursement from the fund for its
payments made after fifty-two weeks. Also, it is required to give
notice to the fund of the fund’s potential liability. But a carrier’s
delay in notifying the fund does not increase the employer’s
liability or impose an independent liability on the carrier. The fund
must reimburse the carrier for benefits the carrier paid after
fifty-two weeks even if the fund receives late notice. However, if
the employee is found ineligible for payments made before late
notice was given, the fund need not reimburse the carrier for the
benefits the carrier paid.
The decisions in Valencic and Robinson must be overruled to
the extent that they are inconsistent with this opinion.
The part of the opinion of the Court of Appeals that held that
Oakwood’s failure to provide notice to the fund precluded Oak-
wood from seeking reimbursement for the overpayments must be
reversed and the matter must be remanded to the WCAC to
consider the issue regarding whether the plaintiff was avoiding
work.
Affirmed in part, reversed in part, and remanded to the WCAC.
Justice M
ARKMAN
, joined by Justice C
AVANAGH
, dissenting, stated
that under MCL 418.925(1), the carrier must notify the fund at
least ninety days before the liability limitation set forth in MCL
418.921 can become effective. Such an interpretation is the most
harmonious and natural reading of the statutes, because it gives
effect to both the limitation on the employer’s liability in MCL
418.921 and the requirement that notice be given to the fund
686 472 M
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685 [June
under MCL 418.925(1). The decision of the Court of Appeals
should be reversed on the basis that the liability of the fund in this
case was not triggered until ninety days after it received statutory
notice from the carrier. Before that time, Oakwood remained liable
for the benefits.
W
ORKER
’
S
C
OMPENSATION —
V
OCATIONALLY
D
ISABLED
C
ERTIFICATION —
N
OTICE
TO THE
S
ECOND
I
NJURY
F
UND
.
The liability of an employer or its insurance carrier for the payment
of worker’s compensation benefits to a worker certified as voca-
tionally disabled is limited to a period of fifty-two weeks after the
date the employee is injured even though the employer or carrier
fails to notify the Second Injury Fund of the fund’s likely need to
pay benefits beyond the fifty-two-week period; the employer or
carrier is entitled to reimbursement from the fund for any pay-
ments made to an eligible employee beyond fifty-two weeks after
the injury, but is not entitled to reimbursement for benefits it pays
an ineligible employee after fifty-two weeks but before it gives the
fund notice (MCL 418.925[1]).
Jeffrey S. Weisswasser (Daryl Royal, of counsel) for
the plaintiff.
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, and Morrison Zack, Assistant Attor-
ney General, for the Second Injury Fund.
Humphrey, Hannon, Moriarity & Schoener, P.C. (by
Robert J. Humphrey and John L. Ruedisueli), for Oak-
wood Hospital and Medical Center.
Michael A. Cox, Attorney General, Thomas L. Casey,
Solicitor General, and Victoria A. Keating, Assistant
Attorney General, for the Director of the Worker’s
Compensation Agency.
Amici Curiae:
Martin L. Critchell for Munson Hospital.
Richard R. Weiser for the Accident Fund Insurance
Company of America.
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687
K
ELLY,
J. This case involves the allocation of liability
for benefits under the vocationally disabled persons
chapter of the Worker’s Disability Compensation Act.
MCL 418.901 et seq. The act makes an employer ini-
tially liable to pay disability benefits to a certified
vocationally disabled employee who is injured on the
job. It imposes on the employer only fifty-two weeks of
liability for compensation, medical care, and last illness
and burial expenses. MCL 418.921. Thereafter, the
Second Injury Fund becomes liable. In the event of an
employment-related injury to a certified vocationally
disabled employee, the employer’s worker’s disability
insurance carrier has an obligation to give notice to the
fund.
The issue here is whether a carrier that fails to notify
the fund is solely liable for a vocationally disabled
person’s disability benefits after fifty-two weeks. MCL
418.925(1). Related issues are whether the fund is liable
after the fifty-second week if it receives late notice, and
whether the employer can be liable after fifty-two
weeks under any circumstances.
We hold that the employer has no liability for benefits
after the fifty-second week, even if the fund receives
late notice. Also, the carrier must continue to pay
benefits after fifty-two weeks. Finally, the fund is not
released from liability to reimburse the carrier for its
payments made after fifty-two weeks even if it receives
late notice. An exception exists if the employee loses
eligibility before late notice is given. If the employee is
found ineligible for payments made before late notice
was given, the fund need not reimburse the carrier for
the benefits paid. We overrule the Court of Appeals
decisions in Valencic v TPM, Inc
1
and Robinson v Gen
1
248 Mich App 601; 639 NW2d 846 (2001).
688 472 M
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Motors Corp
2
to the extent that they are inconsistent
with today’s opinion. We reverse in part the Court of
Appeals decision in this case and remand the case to the
Worker’s Compensation Appellate Commission
(WCAC).
THE PROVISIONS FOR VOCATIONALLY DISABLED EMPLOYEES
A vocationally disabled employee is an employee who
suffers from one of several statutorily enumerated
medical conditions and whose impairment is a substan-
tial obstacle to employment. MCL 418.901(a). The li-
ability to pay benefits for such an employee, when
injured on the job, is allocated among the employer, the
employer’s carrier, and the Second Injury Fund. The
disability act restricts the employer’s liability to the
first fifty-two weeks. MCL 418.921.
After that, the employer’s carrier must continue to
pay benefits to the employee. But the fund must reim-
burse the carrier for the amount the carrier pays after
the fifty-second week following the injury. MCL
418.925(2). By allocating liability in this fashion, the act
reduces an employer’s normal worker’s compensation
liability, encouraging employment of the vocationally
disabled.
The act provides that a vocationally disabled em-
ployee will receive benefits in the same manner and to
the same extent as other employees. MCL 418.921. To
qualify under this chapter, the employee must apply to
the Division of Vocational Rehabilitation of the Depart-
ment of Education for certification as vocationally dis-
abled. MCL 418.901(b), 418.905.
The employer and the disability insurance carrier
must also fulfill certain obligations. When hiring a
2
242 Mich App 331; 619 NW2d 411 (2000).
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disabled employee, the employer must submit required
information to the Division of Vocational Rehabilita-
tion. MCL 418.911. If a certified vocationally disabled
employee is injured on the job, the carrier must notify
the fund within a certain time after the injury. MCL
418.925(1).
In this case, defendant Oakwood Hospital was both
the employer and the carrier.
3
Plaintiff was its vocation-
ally disabled employee. After plaintiff was injured at
work, defendant Oakwood failed to timely notify the
defendant fund under the act’s notice provision. In
controversy is which defendant, if either, is liable for
benefits to plaintiff after the fifty-second week.
FACTUAL BACKGROUND
The basic facts are not in dispute. Plaintiff, an
employee of Oakwood, was certified as vocationally
disabled from a previous injury. She became afflicted
with debilitating bilateral cumulative trauma disorder
in her hands, known as carpal tunnel syndrome, as a
consequence of her work as a medical transcriptionist.
Her condition rendered her unable to work after Sep-
tember 21, 1994. Over the next several months, she
received noninvasive treatment then underwent carpal
tunnel release surgery.
Oakwood voluntarily paid disability benefits to plain-
tiff until March 20, 1998. At that time, Oakwood
asserted that plaintiff was able to return to work.
Plaintiff applied for a hearing before a worker’s com-
pensation magistrate pursuant to MCL 418.931, seek-
ing the reinstatement of her benefits.
3
See MCL 418.601(c). Oakwood is self-insured. We distinguish between
“carrier” and “employer” here, just as the act does, although in this case,
they are the same party.
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PROCEEDINGS IN THE WCAC AND THE COURT OF APPEALS
Oakwood failed to notify the Second Injury Fund
within the period established in MCL 418.925(1) that
the fund might be liable to pay plaintiff’s compensation
and medical care benefits. On November 12, 1998,
Oakwood filed a petition with the worker’s compensa-
tion bureau seeking reimbursement from the fund for
its overpayment to plaintiff pursuant to MCL
418.931(1). Oakwood included a copy of plaintiff’s vo-
cationally handicapped certificate with its petition. It
argued that it should be liable for payment of no more
than fifty-two weeks of benefits under MCL 418.921
and that the fund owed the rest.
The fund sought to dismiss Oakwood’s petition on
the basis that Oakwood had failed to give it timely
notice under MCL 418.925(1). A magistrate granted the
motion and dismissed the petition. On appeal to the
WCAC, the commission granted Oakwood’s interlocu-
tory appeal, reversed, and remanded the case to the
magistrate. Bailey v Oakwood Hosp & Med Ctr, 2000
Mich ACO 292.
Soon after that action, the Court of Appeals decided
Robinson, supra. It held that the failure of a carrier to
timely notify the fund under MCL 418.925(1) resulted
in dismissal of the fund’s liability and continued the
liability of the carrier. Robinson, supra at 334–335.
On remand, the magistrate again dismissed Oak-
wood’s claim against the fund. He relied on Robinson.
In addition, he found that plaintiff was not avoiding
work as Oakwood claimed and granted plaintiff an open
award of benefits to be paid by Oakwood.
Again on appeal to the WCAC, the commission con-
cluded that neither Oakwood nor the fund was liable for
additional benefits. It found that the Robinson decision
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shielded the fund from liability, and that the act pro-
tected Oakwood from payments beyond fifty-two weeks.
MCL 418.921. It ruled that, under the act, a carrier’s
liability must be limited to benefits accruing during the
first fifty-two weeks after the injury. MCL 418.921. On
the basis of the Robinson decision and the mandatory
language of the statute, the WCAC terminated plain-
tiff’s benefits. Bailey v Oakwood Hosp & Med Ctr, 2002
Mich ACO 185.
Plaintiff sought leave to appeal in the Court of
Appeals. The director of the worker’s compensation
bureau intervened on plaintiff’s behalf as provided for
in MCL 418.841(1). The Court of Appeals reversed the
WCAC decision, citing both Robinson and Valencic.
4
259
Mich App 298; 674 NW2d 160 (2003). The Court held
that Oakwood’s failure to provide the fund with timely
notice precluded it from taking advantage of the fifty-
two-week limitation of liability contained in MCL
418.921. Absent timely notice, Oakwood would remain
liable for the duration of plaintiff’s work-related disabil-
ity. 259 Mich App at 305-306.
The Court remanded the case to the WCAC to review
Oakwood’s claim that plaintiff was avoiding work. See
MCL 418.861a(3). Oakwood sought, and we granted,
leave to appeal. 470 Mich 892 (2004).
THE STANDARD ON APPELLATE REVIEW
Because this case presents an issue of statutory
construction, we review it de novo. Cardinal Mooney
High School v Michigan High School Athletic Ass’n,
437 Mich 75, 80; 467 NW2d 21 (1991). If possible, we
4
In Valencic, the Court of Appeals held that compliance with the notice
provision of MCL 418.925(1) is mandatory. It ruled that a worker’s
compensation insurance carrier that fails to timely notify the fund may
not shift liability to the fund. Valencic, supra at 608.
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give effect to the Legislature’s purpose and intent
according to the common and ordinary meaning of the
language it used. When ascertaining intent, we read
differing statutory provisions to produce an harmoni-
ous whole. MCL 8.3a; Farrington v Total Petroleum,
Inc, 442 Mich 201, 208-209, 212; 501 NW2d 76 (1993).
THE STATUTORY LANGUAGE
The following are the relevant statutory provisions:
A person certified as vocationally disabled who receives
a personal injury arising out of and in the course of his
employment and resulting in death or disability, shall be
paid compensation in the manner and to the extent pro-
vided in this act, or in case of his death resulting from
such injury, the compensation shall be paid to his depen-
dents. The liability of the employer for payment of com-
pensation, for furnishing medical care or for payment of
expenses of the employee’s last illness and burial as
provided in this act shall be limited to those benefits
accruing during the period of 52 weeks after the date of
injury. Thereafter, all compensation and the cost of all
medical care and expenses of the employee’s last sickness
and burial shall be the liability of the fund.The fund shall
be liable, from the date of injury, for those vocational
rehabilitation benefits provided in section 319. [MCL
418.921 (emphasis added).]
The notification provision, § 925(1), reads:
When a vocationally disabled person receives a personal
injury, the procedure and practice provided in this act
applies to all proceedings under this chapter, except where
specifically otherwise provided herein. Not less than 90 nor
more than 150 days before the expiration of 52 weeks after
the date of injury, the carrier shall notify the fund whether
it is likely that compensation may be payable beyond a
period of 52 weeks after the date of injury. The fund,
thereafter, may review, at reasonable times, such informa-
tion as the carrier has regarding the accident, and the
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nature and extent of the injury and disability. [MCL
418.925(1) (emphasis added).]
PREVIOUS INTERPRETATIONS OF THE STATUTORY
LANGUAGE AT ISSUE
Robinson was the first reported case to consider the
consequences of a carrier’s failure to notify the fund.
5
There, the Court of Appeals noted that the word “shall”
in § 925(1) created a mandatory duty to notify. It
reasoned that the Legislature must have intended that
there be an adverse consequence for failing to give
notice, or carriers could violate the provision with
impunity. Robinson, supra at 335. The appropriate
sanction, it reasoned, was complete dismissal of the
fund’s liability. This not only effectuated the Legisla-
ture’s intent, Robinson observed, it protected the fund
from prejudice. Id.
In Valencic, the Court of Appeals followed the rea-
soning of Robinson, as it was required to do. MCR
7.215(J)(1). It concluded that
compliance with the notice provisions of [MCL] 418.925(1)
is “mandatory,” and in the case at bar, it is undisputed that
notice was not given within the period set forth in that
subsection. In light of Robinson . . ., we conclude that the
WCAC’s decision [not to dismiss the fund] amounted to an
error of law. [Valencic, supra at 608.]
As in Robinson, the Court dismissed the fund from
the lawsuit and imposed full liability on the carrier for
payments beyond the first fifty-two weeks.
5
The careful reader will note that Robinson “concern[ed]... an
employer’s failure to give notice ....”Robinson, supra at 334 (emphasis
added). The employer in Robinson was self-insured and thus was a
carrier under the act. Hence, Robinson concerned the failure of the
employer as carrier to give notice, just as this case does.
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THE INVALIDITY OF ROBINSON AND VALENCIC
The flaws in Robinson and Valencic become painfully
apparent when their holdings are applied to this case.
The Legislature enacted the Worker’s Disability Com-
pensation Act to provide a reliable source of benefits to
employees injured on the job regardless of tort liability.
McAvoy v H B Sherman Co, 401 Mich 419, 437; 258
NW2d 414 (1977).
In applying Robinson, Valencic, and MCL 418.925(1)
to this case, the Court of Appeals and the WCAC were
trapped in a Catch-22. They had to release the
employer-carrier and the fund from liability, leaving
no one to pay plaintiff’s benefits. This directly contra-
dicted the express language of MCL 418.921 that “an
employee...shall be entitled to compensation” for a
disability caused by employment
6
and that a certified
vocationally disabled employee “shall be . . . compen-
sat[ed] in the manner and to the extent provided in this
act....”
We interpret the Legislature’s use of the word “shall”
to mandate the payment of benefits to an employee who
qualifies for them. Scarsella v Pollak, 461 Mich 547,
549; 607 NW2d 711 (2000); Oakland Co v Michigan,
456 Mich 144, 154; 566 NW2d 616 (1997). The question
becomes who is liable for the benefits.
It is apparent from the language of § 921 that an
employer’s liability must end after the employee re-
ceives the benefits that accrued during the fifty-two
weeks following the injury.
7
Also, the fund must assume
6
MCL 418.415.
7
The dissent’s conclusion to the contrary has a superficial appeal. At
first blush, it seems equitable to relieve the fund of all liability if the
carrier fails to provide the notice required by § 925. But the equity of the
dissent’s solution is questionable upon closer examination.
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liability for benefits, if any are due and paid by the
carrier beyond that date.
Section 925 describes the procedure for transferring
liability from the carrier to the fund. It also provides
that, after notification, the fund “may review, at rea-
sonable times, such information as the carrier has
regarding the accident, and the nature and extent of the
injury and disability.” MCL 418.925(1). The notice
provision and accompanying deadlines afford the fund
an opportunity to review claims to verify their validity.
This avoids unwarranted costs to the fund.
Although the statute shifts liability, it does not
alleviate the disability insurance carrier’s responsibil-
ity to pay benefits to the employee. “Liability” means
“the state or quality of being liable,” and “liable”
means “legally responsible.” Random House Webster’s
College Dictionary (2001 ed), p 765. It is different than
the responsibility to pay, although the two often over-
lap.
The act requires that the employee be compensated
“in the manner . . . provided in this act....” MCL
418.921 (emphasis added). It requires carriers to pay
benefits directly to injured employees. MCL 418.801.
Thus § 921 requires carriers to continue to make pay-
ments to certified vocationally disabled employees after
fifty-two weeks just as they would to other disabled
employees who are not certified as vocationally dis-
abled. These provisions ensure that the injured em-
In this case, the carrier (who must provide notice under § 925) and the
employer (who is liable for benefits for the first fifty-two weeks under
§ 921) are the same entity: Oakwood Hospital and Medical Center.
Extending Oakwood’s liability beyond the statutory fifty-two-week pe-
riod, as the dissent suggests, imposes a penalty on the same party that
failed to comply with § 925. However, if the carrier and the employer are
separate entities, the dissent would extend the employer’s liability
because of the carrier’s failure to comply with its statutory duty. In this
light, the dissent’s solution is neither a reasonable construction of the
statutes at issue nor an equitable one.
696 472 M
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ployee is not left uncompensated during a dispute
between a carrier and the fund over who is liable for
payments after week fifty-two.
The act also requires that the fund reimburse the
carrier for all compensation rightfully paid on its
behalf. MCL 418.925(2). In effect, the act requires the
carrier to advance benefits on behalf of the fund. By
shifting the liability but not the obligation to pay, and
by providing for parallel responsibility for payment,
the Legislature ensured that an injured employee
would not be left without benefits. The provision in
§ 925(3)
8
allowing the fund to pay the employee directly
is consistent with the above provisions. The fund may
pay an employee directly if a carrier fails to meet its
obligation to the employee for any reason, such as
insolvency. This furnishes additional assurance that the
employee will receive the benefits envisioned in the act.
MCL 418.921.
THE CONSEQUENCES CONTEMPLATED BY THE ACT
FOR FAILURE OF NOTICE
When the act is read in context to give effect to all its
provisions, it becomes apparent that the Legislature
intended several consequences for failure to give notice
under § 925(1). Carriers have a built-in incentive to give
timely notice. If a carrier fails to notify the fund, one
8
MCL 418.925(3) reads:
The obligation imposed by this section on a carrier to make
payments on behalf of the fund does not impose an independent
liability on the carrier. After a carrier has established the right to
reimbursement, payment shall be made promptly on a proper
showing every 6 months. If a carrier does not make the payments
on behalf of the fund, the fund may make the payments directly to
the persons entitled to such payments.
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consequence is that it loses the temporary use of the
money that the fund would have reimbursed to it.
9
MCL
418.925(3).
Once the fund has notice, it may review any infor-
mation the carrier has about the claim. MCL
418.925(1). It may dispute an employee’s eligibility for
payment under MCL 418.925(2):
[A]t any time subsequent to 52 weeks after the date of
injury, the fund may notify the carrier of a dispute as to the
payment of compensation. The liability of the fund to
reimburse the carrier shall be suspended 30 days thereaf-
ter until such controversy is determined.
These provisions allow the fund, once it has notice, to
ensure that it is required to reimburse only legitimate
claims.
Another consequence would occur if the employee
became ineligible for benefits after fifty-two weeks. If
the employee is not eligible, there is no liability to pay
benefits under MCL 418.921.
10
The fund argues that the Court should create an
additional consequence: it should relieve it from all
obligations to reimburse the carrier after fifty-two
9
This consequence is inherent in the statute as written; the Legisla-
ture did not have to write it in to make it so, as Justice M
ARKMAN
implies.
Also, the record does not support Justice M
ARKMAN
’s assertion that this
consequence is ineffectual. Post at 711 n 7.
10
We agree with Justice M
ARKMAN
that the statute bestows on the fund
the right to dispute an employee’s eligibility at any time. Post at 712 n 7.
But the fund can scarcely be expected to dispute payments of which it has
no knowledge. Hence, the relevant inquiry is this: what consequence does
the act contemplate for the time that the carrier fails to give notice to the
fund? For any period during which the fund has no notice and the
employee was ineligible for benefits, the fund has no liability. The
consequence to the carrier that fails to give notice and pays benefits to an
ineligible employee after the fifty-second week is that it will not receive
reimbursement from the fund.
698 472 M
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weeks if notice is not timely even if the employee is
eligible for benefits. It argues that its assets derive from
contributions or assessments of self-insured employers
and worker’s compensation insurance carriers. There-
fore, it says, it must be able to rely on the notification
process to determine its budget.
However, notification is merely a prediction of a
future event: that benefits may become payable. In
order for the fund to use notifications that are only
predictions to forecast its budget, it must build in a
component to allow for changes in the condition of
injured employees. Hence, the fund cannot budget for
the future on the basis of predictions alone.
Moreover, compliance with the notice requirement
may be impossible under some circumstances. Section
925(1) could directly conflict with the act’s general
statute of limitations in MCL 418.381.
11
For example, a
certified vocationally disabled employee could suffer
what appears to be a minor injury at work. Because the
injury does not initially appear serious, the employee
might continue to work.
Although the employee might work every day, the
symptoms attributable to the injury might worsen. At
11
MCL 418.381 provides in pertinent part:
A proceeding for compensation for an injury under this act
shall not be maintained unless a claim for compensation for the
injury, which claim may be either oral or in writing, has been made
to the employer or a written claim has been made to the bureau on
forms prescribed by the director, within 2 years after the occur-
rence of the injury. In case of the death of the employee, the claim
shall be made within 2 years after death. The employee shall
provide a notice of injury to the employer within 90 days after the
happening of the injury, or within 90 days after the employee knew,
or should have known, of the injury. Failure to give such notice to
the employer shall be excused unless the employer can prove that
he or she was prejudiced by the failure to provide such notice.
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the conclusion of fifty-two weeks, the symptoms could be
so severe that the employee must stop working. If the
employee filed a claim for worker’s compensation at the
beginning of week fifty-three, it would be well within the
two-year limitation on claims found in § 381. It is pos-
sible that only when the claim is filed would the em-
ployer and its carrier become aware of a potentially
compensable claim. However, because fifty-two weeks
would have already elapsed since the date of injury, the
carrier would have lost its ability to comply with the
notice provision of § 925(1).
Should this situation occur, the carrier would be
unable to satisfy the notice provision because of no fault
of its own. Under Robinson, despite the language of § 921
that limits carrier liability “to those benefits accruing
during the period of 52 weeks after the date of injury,”
the carrier would remain liable. This would occur be-
cause the carrier had been unaware of the possible
compensable claim until after the fifty-two-week period.
THE LEGISLATURE COULD HAVE INSERTED THE PENALTY
CLAUSE SOUGHT BY THE FUND
The Legislature knows how to create a penalty when it
intends one. As we have pointed out, consequences for
noncompliance with notification provisions are inherent
in the act. This suggests that the Legislature did not
intend to impose the penalty for noncompliance with the
notification provision of § 925(1) that the fund seeks.
The act requires the employer to timely notify the
Division of Vocational Rehabilitation at the Michigan
Department of Education
12
when it hires a certified
vocationally disabled employee:
12
MCL 418.901(b).
700 472 M
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Upon commencement of employment of a certified voca-
tionally disabled person the employer shall submit to the
certifying agency, on forms furnished by the agency, all
pertinent information requested by the agency. The certify-
ing agency shall acknowledge receipt of the information.
Failure to file the required information with the certifying
agency within 60 days after the first day of the vocationally
disabled person’s employment precludes the employer from
the protection and benefits of this chapter unless such infor-
mation is filed before an injury for which benefits are payable
under this act. [MCL 418.911 (emphasis added).]
Under this section, failure to notify the agency within
the specified time or before an injury for which benefits
are payable bars the employer from shifting liability to
the fund.
The Legislature enacted this provision simultaneously
with §§ 921 and 925. It furnishes a model for penalties in
the event of noncompliance. However, the Legislature
did not follow it when creating the notification require-
ment of § 925(1). It seems unlikely that the Legislature
intended a penalty that it did not build into the act,
especially given that it did specify penalties elsewhere in
the act. Farrington, supra at 210.
Justice M
ARKMAN
’s construction would impose on a
carrier a penalty that is not in the act. He proposes an
alternative version of the act, one that limits the
employer’s liability
provided that the carrier complies with the notice require-
ment of § 925(1). Where the carrier fails to notify the fund
of the possibility that benefits will remain payable under
this chapter, the employer’s liability continues until such
time as ninety days have passed from when the fund
receives notification. [Post at 709.]
The Legislature did not write this limitation into the
act. The limitation conflicts with the text of the statute
that requires notice be provided 90 to 150 days before a
date fifty-two weeks “after the date of injury.” MCL
418.925(1).
2005] B
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THE ACT DOES NOT PENALIZE THE INJURED
EMPLOYEE FOR A CARRIER’S MISFEASANCE
The act allows an employee to enforce his or her
award in circuit court. MCL 418.863. The employee’s
claim may be brought directly against the directors and
officers of a self-insured employer or carrier as well as
against the corporate entity. MCL 418.647(2). These
provisions establish recourse for an employee if a car-
rier does not meet its obligations and ceases making
payments in violation of an award.
Also, the self-insured status of an employer, like
Oakwood, that repeatedly or unreasonably fails to meet
its obligations may be revoked. If this occurs, the
employer will be required to obtain liability insurance.
MCL 418.631(2).
13
Thus, the act penalizes a self-insured
employer or carrier that fails to pay its obligations to
disabled employees.
Valencic and Robinson failed to give effect to the
Legislature’s intent. They precluded the magistrate
from awarding benefits to a certified vocationally dis-
abled employee to the same extent and in the same
manner as other employees. They created a penalty for
the carrier’s failure to notify the fund of its liability
where none was written into the act. Accordingly,
Valencic and Robinson are overruled to the extent that
they are inconsistent with this opinion.
THE CARRIER IS ENTITLED TO REIMBURSEMENT
FROM THE FUND
The act explicitly states that the obligation of the
carrier to continue to pay benefits after fifty-two weeks
13
Similarly, a carrier that repeatedly or unreasonably fails to meet its
obligations may have its state license to provide insurance revoked. MCL
418.631(1).
702 472 M
ICH
685 [June
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“does not impose an independent liability on the car-
rier.” MCL 418.925(3). The act provides for reimburse-
ment to the carrier once the carrier has established
having made an overpayment of accrued benefits. Id.
The fund must make prompt reimbursement to the
carrier. Id. The act does not include a provision releas-
ing the fund from this obligation if the carrier delays in
reporting to it a payment to an employee. It would
contravene the intent of the Legislature for the Court to
read into the act words extinguishing the carrier’s right
to reimbursement. Hence, in this case, the fund must
reimburse Oakwood for any eligible benefits it paid on
the fund’s behalf after the fifty-two-week period follow-
ing the date of injury.
The fund argues that its assets are in the nature of a
trust and that it is the trustee. It claims that it is
precluded from disbursing the trust’s assets unless the
terms of the trust are followed.
We find unconvincing the argument that it is a
violation of the terms of the fund’s trust to disburse
benefits when the mandatory notice provision has not
been satisfied. To the contrary, the trust by its terms is
required to reimburse carriers for benefits paid to
disabled employees after fifty-two weeks following an
injury. MCL 418.925(3). Notification by a carrier is not
a condition precedent to the fund’s obligation. The
trustee is not absolved of its responsibility by a sett-
lor’s failure to notify the trustee of a possible obliga-
tion.
The record contains no showing that the fund’s
payment of claims for which it received delayed notice
from carriers has caused it an actuarial crisis. We
believe that the fund is not prejudiced by untimely
delays and, in fact, that it enjoys the time value of the
money it holds until receiving delayed notification of a
2005] B
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claim. Any monies that the fund pays out are recouped
through assessments on employers and carriers pursu-
ant to MCL 418.551(1) and passed along to consumers.
McAvoy, supra at 436, quoting 1 Larson, Workmen’s
Compensation Law, § 2.20.
CONCLUSION
An employer is liable for payment of compensation,
for furnishing medical care, and for payment of the last
illness expenses of a certified vocationally disabled
employee. This liability exists for fifty-two weeks after
the employee suffers a second disabling injury or is
killed at work. After that, the employer has no further
liability.
The Second Injury Fund is liable after the fifty-
second week and must reimburse a carrier for eligible
benefits it pays the employee on the fund’s behalf. MCL
418.921 and 418.925(3). The Worker’s Disability Com-
pensation Act provides inherent consequences for a
carrier that fails to timely notify the fund of the fund’s
potential obligation. For instance, the carrier loses the
temporary use of the money that the fund would have
reimbursed to it. It risks that the fund will dispute the
employee’s eligibility, precluding the carrier from being
reimbursed if the employee is found ineligible.
In this case, Oakwood’s liability as an employer
ended at the conclusion of fifty-two weeks after the date
of plaintiff’s injury. However, as the carrier, it remained
obligated to pay her benefits thereafter and could rely
on reimbursement from the fund unless plaintiff was
shown to be avoiding work. The Court of Appeals
holding to the contrary is overruled.
The fund will be liable for plaintiff’s continuing
benefits retroactive to fifty-two weeks after her injury
provided that it is determined on remand that plaintiff
704 472 M
ICH
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was not avoiding work. We remand the case to the
Worker’s Compensation Appellate Commission for con-
sideration of this issue. Valencic and Robinson are
overruled to the extent that they are inconsistent with
this opinion. We do not retain jurisdiction.
T
AYLOR
, C.J., and W
EAVER,
C
ORRIGAN,
and Y
OUNG
,JJ.,
concurred with K
ELLY
,J.
M
ARKMAN,
J. (dissenting). The majority concludes that
the Second Injury Fund (the fund) is automatically liable
for a certified vocationally disabled employee’s disability
benefits after fifty-two weeks, notwithstanding the fact
that the employer’s carrier has failed to comply with the
notice provisions of MCL 418.925(1). I respectfully dis-
agree. Because § 925(1) provides that a carrier “shall
notify” the fund at least ninety days before the normal
expiration of the carrier’s liability, I do not agree with the
majority that the fund’s liability is automatic at the
expiration of fifty-two weeks from the date of the injury,
without regard to the compliance of the carrier with its
statutory obligation. Instead, I conclude that the better
reading of the vocational disability chapter of the Work-
er’s Disability Compensation Act requires that the car-
rier must notify the fund at least ninety days before the
liability limitation set forth in MCL 418.921 can become
effective. Accordingly, I would reverse the decision of the
Court of Appeals and hold that the fund’s liability was
not triggered in this case until ninety days after it
received statutory notice from the carrier.
When plaintiff began working for defendant Oak-
wood Hospital and Medical Center (Oakwood) in 1989,
she was certified as vocationally disabled because of a
prior back injury.
1
She developed bilateral carpal tunnel
1
“ ‘Vocationally disabled’ means a person who has a medically certifi-
able impairment of the back or heart, or who is subject to epilepsy, or who
has diabetes, and whose impairment is a substantial obstacle to employ-
2005] B
AILEY V
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705
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ARKMAN
,J.
syndrome in 1993; after surgery failed to provide relief
from the pain, she left her employment on September
21, 1994. Oakwood paid worker’s compensation ben-
efits until March 1998, when it stopped payment on the
basis of plaintiff’s alleged work avoidance. Plaintiff
applied for a hearing in May 1998. Shortly thereafter,
Oakwood found plaintiff’s vocationally handicapped
worker’s certificate and filed a claim against defendant
fund for reimbursement of the benefits it paid plaintiff
beyond the fifty-two-week period set by § 921. The
magistrate granted the fund’s motion to dismiss on the
basis of Oakwood’s failure to provide timely notice
under § 925. The Worker’s Compensation Appellate
Commission (WCAC) reversed, remanding with an in-
struction to make the fund a party. On remand, the
magistrate again dismissed the fund, citing Robinson v
Gen Motors Corp, 242 Mich App 331; 619 NW2d 411
(2000), which had been released in the interim. The
magistrate then rejected Oakwood’s work avoidance
claim, granting plaintiff an open award of benefits. The
WCAC reversed, concluding that neither Oakwood nor
the fund was liable for additional benefits. The Court of
Appeals then reversed the WCAC, holding that Oak-
wood’s failure to timely provide notice meant that it
remained liable as long as plaintiff had a work-related
disability. 259 Mich App 298; 674 NW2d 160 (2003).
We review issues of statutory construction de novo.
Burton v Reed City Hosp Corp, 471 Mich 745, 757; 691
NW2d 424 (2005). We recently noted “the fundamental
rule” of statutory construction that “every word of a
statute should be given meaning and no word should be
treated as surplusage or rendered nugatory if at all
possible.” Pittsfield Charter Twp v Washtenaw Co, 468
ment, considering such factors as the person’s age, education, training,
experience, and employment rejection.” MCL 418.901(a).
706 472 M
ICH
685 [June
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ARKMAN
,J.
Mich 702, 714; 664 NW2d 193 (2003). The word “shall”
is “unambiguous and denote[s] a mandatory, rather
than discretionary action.” Roberts v Mecosta Co Gen
Hosp, 466 Mich 57, 65; 642 NW2d 663 (2002). The
provisions of a statute must be read in the context of the
entire statute in the interest of producing an harmoni-
ous whole. Burton, supra at 757.
As a result of her certification as a vocationally
disabled person, plaintiff’s subsequent work-related in-
jury triggered § 921 of the Worker’s Disability Compen-
sation Act (WDCA). That section (MCL 418.921) pro-
vides:
A person certified as vocationally disabled who receives
a personal injury arising out of and in the course of his
employment and resulting in death or disability, shall be
paid compensation in the manner and to the extent pro-
vided in this act, or in case of his death resulting from such
injury, the compensation shall be paid to his dependents.
The liability of the employer for payment of compensation,
for furnishing medical care or for payment of expenses of
the employee’s last illness and burial as provided in this act
shall be limited to those benefits accruing during the period
of 52 weeks after the date of injury. Thereafter, all compen-
sation and the cost of all medical care and expenses of the
employee’s last sickness and burial shall be the liability of
the fund. The fund shall be liable, from the date of injury,
for those vocational rehabilitation benefits provided in
section 319.
However, § 921 does not exist in a vacuum. Section
925(1) of the WDCA (MCL 418.925[1]) further provides:
When a vocationally disabled person receives a personal
injury, the procedure and practice provided in this act
applies to all proceedings under this chapter, except where
specifically otherwise provided herein. Not less than 90 nor
more than 150 days before the expiration of 52 weeks after
the date of injury, the carrier shall notify the fund whether
it is likely that compensation may be payable beyond a
2005] B
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ARKMAN
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period of 52 weeks after the date of injury. The fund,
thereafter, may review, at reasonable times, such informa-
tion as the carrier has regarding the accident, and the
nature and extent of the injury and disability.
While these statutes normally coexist harmoniously,
a conflict arises where, as here, the carrier
2
has failed to
timely notify the fund of a situation where “it is likely
that compensation may be payable beyond a period of
52 weeks after the date of injury.” In such a case, the
carrier has violated the mandate of § 925(1) that it
“shall notify” the fund, yet the consequences of such
violation are not readily apparent because § 921 man-
dates that the employer’s liability “shall be limited
to . . . 52 weeks.”
The majority correctly concludes that the interpreta-
tion of the Court of Appeals, based upon Robinson and
Valencic v TPM, Inc, 248 Mich App 601; 639 NW2d 846
(2001), cannot stand. In concluding that the carrier’s
failure to timely notify the fund served as a permanent
and complete bar to the fund’s liability, Robinson and
its progeny ignored the instruction in § 921 that “liabil-
ity of the employer...shall be limited to those benefits
accruing during the period of 52 weeks after the date of
injury.” Robinson’s sanction of complete dismissal of
the fund creates a clear conflict with the text of § 921.
3
2
Under MCL 418.601, the definition of “carrier” includes both an
insurer and a self-insured employer, such as Oakwood in the present case.
Thus, as noted by the majority, the distinction between “employer” and
“carrier” has no bearing on this case. Ante at 690 n 3.
3
As an example of the impact of Robinson’s sanction of dismissal upon
an employer or a carrier, one need only look at Valencic. In that case,
because of confusion regarding which insurer was the “carrier” at the
time of the plaintiff’s injury, the carrier ultimately found liable was not
alerted to the existence of the injury until four years after it occurred.
Valencic, supra at 604, 608. Notwithstanding that the carrier had no
knowledge of the injury until long after the notice provision of § 925(1)
had expired, the fund was dismissed from the suit because the carrier had
708 472 M
ICH
685 [June
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ARKMAN
,J.
However, despite recognizing that the Robinson line
of cases completely ignores one statutory mandate at
the expense of another, the rule the majority adopts
today has exactly the same effect. Section 925(1) pro-
vides:
Not less than 90 nor more than 150 days before the
expiration of 52 weeks after the date of injury, the carrier
shall notify the fund whether it is likely that compensation
may be payable beyond a period of 52 weeks after the date
of injury. [MCL 418.925(1) (emphasis added).]
Applying basic principles of statutory construction,
the Legislature’s use of the words “shall notify” makes
clear that notification to the fund is mandatory. How-
ever, far from giving meaning to every word of the
statute, the majority effectively reads this mandatory
notification language out of the statute. I do not
believe that the Legislature intended to make such
notice requirement “mandatory,” yet intended no rem-
edy or means of enforcement for such requirement.
In my judgment, the most harmonious and natural
reading of the vocational disability chapter as a whole
would limit the employer’s liability to a period of
fifty-two weeks under § 921, provided that the carrier
complies with the notice requirement of § 925(1).
Where the carrier fails to notify the fund of the possi-
bility that benefits will remain payable under this
chapter, the employer’s liability continues until such
time as ninety days have passed from when the fund
receives notification. See § 925(1). This approach is
sounder, I believe, than that of the majority by giving
meaning to both the limitation on the employer’s liabil-
ity in § 921 and the requirement that notice be given to
not provided timely notice. This left the full liability to fall on the
shoulders of the employer or carrier.
2005] B
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709
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ARKMAN
,J.
the fund in § 925(1), thereby giving effect to all the
relevant language of the law. At the same time, as long
as the carrier supplied notice to the fund at some
point, this approach would avoid permanently placing
responsibility for the payment of benefits upon the
employer, as would be effected by Robinson and Valen-
cic.
4
Moreover, because an injury to any other, non-
“vocationally disabled,” employee would result in in-
definite liability to the employer, the limited penalty
suffered by the employer who fails to comply with the
notice requirement does not seem unreasonable.
5
Be-
cause the employer essentially derives a benefit under
the WDCA by hiring the vocationally disabled em-
ployee, in that its liability ordinarily ceases after fifty-
two weeks in the face of a second injury, it does not seem
4
Contrary to the majority’s assertion, this dissent does not “relieve the
fund of all liability if the carrier fails to provide the notice required by
§ 925.” Ante at 695 n 7 (emphasis added). Rather, as has been made clear,
the employer’s liability would continue beyond fifty-two weeks only until
such time as the carrier has complied with the notice requirements of
§ 925. The fund would then become liable ninety days after the carrier
has provided the notice required by the statute.
5
The majority asserts that this interpretation would be neither
“reasonable” nor “equitable” in situations in which the carrier and the
employer were not the same party, because in such situations the failure
of the carrier to provide timely notice would result in liability to the
employer. Ante at 696 n 7. By this observation, the majority treats the
employers of this state as essentially passive participants in the
marketplace, incapable of protecting their own economic interests
without the strained interpretations of this Court. Employers are
perfectly capable of contracting with their own carriers, as well as
utilizing the legal process where necessary, to ensure that the risks of
liability in cases such as this one fall upon the party whose failure to
comply with its statutory duty caused liability. Further, unlike what
occurred in this case, there is nothing to prevent an employer from
simply monitoring its carrier with regard to the typically few injured,
vocationally disabled employees employed by an employer to ensure
that the carrier carries out the required notification.
710 472 M
ICH
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ISSENTING
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ARKMAN
,J.
unreasonable to require the employer to comply with
the act in order to receive such benefit.
6
I am not oblivious to the argument that the interpre-
tation in this dissent accords inadequate consideration
to the “shall be limited to those benefits accruing
during the period of 52 weeks after the date of injury”
language in § 921. There is simply no perfect interpre-
tation of this confusing statute, merely a less imperfect
and a more imperfect interpretation. I believe that the
interpretation here accords at least some meaning to
the “shall” language in both § 921 and § 925(1), while
the majority’s interpretation effectively ignores the
“shall” language in § 925(1).
7
6
The majority implies that the fund will not be prejudiced by a delay in
notification, because under MCL 418.925(2), the fund “may dispute an
employee’s eligibility for payment” at any time. Ante at 698. However, the
majority fails to consider that one of the purposes of the notice require-
ment is to allow the fund to timely investigate the validity of such claims.
While it may be true that the fund may dispute an employee’s eligibility
for payments at any time, evidentiary concerns too obvious to state
suggest that the fund is in a better position to dispute such eligibility if
the investigation comes sooner rather than later.
7
The majority struggles to accord some modicum of meaning to
§ 925(1). It suggests that the “Legislature intended several consequences
for failure to give notice under § 925(1).” Ante at 697. First, it suggests
that the loss of the temporary use of the carrier’s money serves as an
adequate sanction. Ante at 697-698. If the majority is correct that the
Legislature intended as a sanction the loss of interest on certain benefits
paid out, then the majority has discerned a sanction that is most
noticeable by its absence from the language of the statute, and which
sanction is a notably ineffectual one to boot.
Second, the majority suggests that another sanction exists in cases in
which an employee becomes ineligible for benefits after fifty-two weeks,
because “[i]f the employee is not eligible, there is no liability to pay
benefits under MCL 418.921.” Ante at 698. However, in characterizing
the Legislature’s unremarkable decision that fraudulent claims should
not be reimbursed as a “consequence” of untimely notification, the
majority misapprehends the statutory scheme. The fund’s ability to
contest an employee’s eligibility is not a “consequence” of the carrier’s
2005] B
AILEY V
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TR
711
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ISSENTING
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PINION BY
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ARKMAN
,J.
Accordingly, I would reverse the decision of the Court
of Appeals affirming the dismissal of the fund from the
suit, and hold that the fund became liable for plaintiff’s
benefits ninety days after Oakwood provided the notice
required under § 925(1). Before that time, Oakwood
remained liable for these benefits.
C
AVANAGH
, J., concurred with M
ARKMAN,
J.
failure to comply with the notice requirement of § 925(1), but rather a
“consequence” of the plain language of § 925(2), which provides that the
fund may dispute the employee’s eligibility “at any time.” Because the
fund has this power at any time regardless of when it received notice, it
can hardly be said that such power is a “consequence” of untimely notice.
712 472 M
ICH
685
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ISSENTING
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PINION BY
M
ARKMAN
,J.
AYAR v FOODLAND DISTRIBUTORS
Docket No. 126870. Decided July 6, 2005. On application by the plaintiffs
for leave to appeal, the Supreme Court, in lieu of granting leave to
appeal, reversed the judgment of the Court of Appeals, reinstated
the order of the circuit court, and remanded the case to the circuit
court for further proceedings. Rehearing denied 474 Mich 1201.
Raad Ayar and others brought an action in the Wayne Circuit Court
alleging contract and tort claims against Foodland Distributors
and others. The court, Robert J. Colombo, Jr., J., entered judgment
on a jury verdict and award of damages for the plaintiffs. The
judgment included prejudgment interest. The court subsequently
entered orders granting the plaintiffs’ motion for costs and media-
tion sanctions and awarding prejudgment interest on such costs
and mediation sanctions from the filing date of the complaint.
MCL 600.6013. Defendant Kroger Company appealed by delayed
leave granted. The Court of Appeals, G
AGE
,P.J., and M
ETER
and
F
ORT
H
OOD
, JJ., reversed the trial court order regarding interest on
the award of costs and mediation sanctions, and remanded for
entry of an amended judgment that provides for accrued statutory
interest from the date costs and mediation sanctions were
awarded. 263 Mich App 105 (2004). The plaintiffs sought leave to
appeal in the Supreme Court.
In an opinion per curiam, signed by Chief Justice T
AYLOR
, and
Justices W
EAVER,
C
ORRIGAN,
Y
OUNG
, and M
ARKMAN
, the Supreme
Court held:
The clear and unambiguous language of MCL 600.6013(8)
requires interest to be calculated from the date that the complaint
is filed. The statute makes no exception for attorney fees and costs
ordered as mediation sanctions under MCR 2.403(O). The judg-
ment of the Court of Appeals must be reversed, the order of the
circuit court must be reinstated, and the matter must be remanded
to the circuit court for further proceedings consistent with this
opinion.
Justice C
AVANAGH
, joined by Justice K
ELLY
, concurring, wrote
separately to note that because MCL 600.6013(8) is clear and
unambiguous, it must be applied as written. The statute clearly
provides that interest on mediation sanctions is to be calculated
2005] A
YAR V
F
OODLAND
D
ISTRIBUTORS
713
from the time the complaint is filed. The majority should not
attempt to distinguish the majority opinion in Rittenhouse v
Erhart, 424 Mich 166 (1985), from this case because the majority
in Rittenhouse undertook to interpret and rewrite this plain
statutory provision to reach its determination that the statute
contained an exception relevant in that case. The majority should
also not engage in a patent imploration to the Legislature to
change the law to comport with the policy views of the majority.
Reversed, circuit court order reinstated, and case remanded to
the circuit court.
I
NTEREST —
M
ONEY
J
UDGMENTS —
M
EDIATION
S
ANCTIONS
.
Prejudgment interest on an award of attorney fees and costs as
mediation sanctions accrues from the date the complaint is filed
(MCR 2.403[O]; MCL 600.6013[8]).
Morganroth & Morganroth, PLLC (by Mayer Mor-
ganroth and Jeffrey B. Morganroth), for the plaintiffs.
Miller, Canfield, Paddock and Stone, P.L.C. (by Carl
H. von Ende, Larry J. Saylor, and Todd A. Holleman),
for Kroger Company.
P
ER
C
URIAM
. At issue in this case is when interest
begins to accrue, pursuant to MCL 600.6013(8), on costs
and attorney fees imposed for rejecting a mediation
evaluation, MCR 2.403(O)(1), (6).
1
The clear language
of this statute indicates that it accrues from the date of
the filing of the complaint. The Court of Appeals, in
reversing the order of the trial court, incorrectly con-
cluded that accrual did not begin on that date. This was
error, and accordingly, pursuant to MCR 7.302(G)(1),
we reverse the judgment of the Court of Appeals
2
and
reinstate the order of the circuit court.
1
By an amendment in 2000, the rule was amended to refer to “case
evaluation” rather than “mediation.” The mediation in this case occurred
in 1995. Consequently, we will refer to “mediation” in this opinion.
2
Ayar v Foodland Distributors, 263 Mich App 105; 687 NW2d 365
(2004).
714 472 M
ICH
713 [July
O
PINION OF THE
C
OURT
I
In October 1993 plaintiffs filed a complaint against
defendants for damages arising from aspects of the
parties’ commercial relationships. Mediation was con-
ducted in 1995. The case then proceeded to trial, and
plaintiffs eventually were awarded a substantial verdict
in a final judgment dated June 21, 2002. This judgment
included prejudgment interest and “costs and attorney
fees to be assessed, if any.” In an order dated June 24,
2002, the circuit court granted plaintiffs’ motion for
assessment of costs and mediation sanctions, MCR
2.403(O), and determined the specific amounts appli-
cable to the various defendants.
3
An issue then arose
concerning interest on these amounts. In an order
dated November 14, 2002, the trial court ordered that
interest on the costs and mediation sanctions awarded
in its June 24 order was to be calculated from the date
the complaint was filed.
The Court of Appeals reversed that order and re-
manded the matter for a redetermination of the amount
of interest. It recognized that judgment interest is
allowed on an award of mediation sanctions,
4
but deter-
mined that interest should be calculated from the date
of the judgment awarding mediation sanctions, June
24, 2002. The Court of Appeals reasoned that, before
that date, no mediation award existed upon which
interest could be calculated.
II
Questions of statutory interpretation are reviewed de
novo. Burton v Reed City Hosp Corp, 471 Mich 745, 751;
3
Defendant-appellant Kroger Company was ordered to pay $381,752.
4
Defendant Kroger’s argument pertains to the date interest com-
mences, not to whether interest can be awarded on mediation sanctions.
2005] A
YAR V
F
OODLAND
D
ISTRIBUTORS
715
O
PINION OF THE
C
OURT
691 NW2d 424 (2005); Morales v Auto-Owners Ins Co
(After Remand), 469 Mich 487, 490; 672 NW2d 849
(2003). Clear and unambiguous statutory language is
given its plain meaning, and is enforced as written.
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642
NW2d 663 (2002).
III
At issue here is MCL 600.6013(8), which provides, in
pertinent part:
[F]or complaints filed on or after January 1, 1987,
interest on a money judgment recovered in a civil action is
calculated at 6-month intervals from the date of filing the
complaint at a rate of interest equal to 1% plus the average
interest rate paid at auctions of 5-year United States
treasury notes during the 6 months immediately preceding
July 1 and January 1, as certified by the state treasurer,
and compounded annually, according to this section. Inter-
est under this subsection is calculated on the entire amount
of the money judgment, including attorney fees and other
costs. The amount of interest attributable to that part of
the money judgment from which attorney fees are paid is
retained by the plaintiff, and not paid to the plaintiff’s
attorney. [Emphasis added.]
[5]
The statute plainly states that interest on a money
judgment is calculated from the date of filing the
complaint. We find this language to be clear and unam-
biguous, as we did in Morales, supra.InMorales,we
concluded that the statute makes no exception for
periods of prejudgment appellate delay, and that inter-
est on a judgment following such a delay is calculated,
without interruption, from the date the complaint is
5
This is the wording of the statute as amended by 2002 PA 77, effective
March 21, 2002, that applies to the June 24, 2002, judgment in this case.
716 472 M
ICH
713 [July
O
PINION OF THE
C
OURT
filed. Similarly, the statute makes no exception for
attorney fees and costs ordered as mediation sanctions
under MCR 2.403(O).
The Court of Appeals was correct in applying the
judgment interest statute to mediation sanctions. Defen-
dant Kroger does not dispute this point, and the statute
expressly applies to “attorney fees and other costs.”
The Court of Appeals was mistaken, however, in
considering mediation sanctions to be in the nature of an
additional claim for damages that did not arise until long
after the complaint was filed. The mediation process is
an integral part of the proceeding commenced when
plaintiffs filed their complaint. The realization of media-
tion sanctions is tied directly to the amount of the verdict
rendered with regard to that complaint. MCR
2.403(O)(1). Indeed, the award of prejudgment interest
on mediation sanctions is part of the final judgment
against defendants. At all times during which interest
was assessed, plaintiffs’ claim against defendants was in
dispute. Therefore, the Court of Appeals was incorrect to
suggest that Rittenhouse v Erhart, 424 Mich 166, 217-
218; 380 NW2d 440 (1985) (R
ILEY
, J.), dictated a different
result in this case.
6
IV
We conclude that, under MCL 600.6013(8), judgment
interest is applied to attorney fees and costs ordered as
6
In Rittenhouse, we held that prejudgment interest owed by a party
accrued from the date of the complaint adding that party. The case at bar
does not involve an added party, but, consistent with Rittenhouse,the
circuit court ordered interest from the filing of the complaint against the
defendant liable for the judgment.
Because this case does not involve an added party, Justice C
AVANAGH
’s
continuing disagreement with the Rittenhouse decision is irrelevant to
the disposition of this case.
2005] A
YAR V
F
OODLAND
D
ISTRIBUTORS
717
O
PINION OF THE
C
OURT
mediation sanctions under MCR 2.403(O) from the
filing of the complaint against the liable defendant.
This results from a plain reading of the statute. The
statute provides no special treatment for judgment
interest on mediation sanctions. Therefore, we reverse
the judgment of the Court of Appeals, reinstate the
order of the circuit court, and remand to the circuit
court for further proceedings consistent with this opin-
ion.
We acknowledge that there are meaningful policy
reasons for a statute that would provide for interest on
mediation sanctions from a date later than when the
complaint is filed. Costs imposed under MCR 2.403(O)
are in the nature of sanctions, and a successful plaintiff
will otherwise receive interest on the judgment itself, in
addition to costs and attorney fees that can be ordered
under MCR 2.403(O). We invite our Legislature to
reconsider whether interest should be imposed on me-
diation sanctions from the date a complaint is filed. As
this case shows, the amount of mediation sanctions
might not be determined until several years after the
filing date. It would not be unreasonable to amend the
statute to provide a result similar to that reached by the
Court of Appeals. However, that result does not follow
from the statute as it is currently written.
T
AYLOR
, C.J., and W
EAVER,
C
ORRIGAN,
Y
OUNG
, and
M
ARKMAN
, JJ., concurred.
C
AVANAGH,
J. (concurring). I concur with the majori-
ty’s holding that interest on an award of mediation
sanctions should be calculated from the date the com-
plaint was filed. However, I write separately for two
reasons.
First, I disagree with the majority’s discussion of
Rittenhouse v Erhart, 424 Mich 166; 380 NW2d 440
(1985). See ante at 717 n 6. In the present case, the
718 472 M
ICH
713 [July
C
ONCURRING
O
PINION BY
C
AVANAGH
,J.
majority correctly concludes that MCL 600.6013(8)
1
is
an unambiguous statute that must be applied as writ-
ten. As such, it accurately determines that because the
statute contains no exception pertaining to mediation
sanctions, interest on mediation sanctions is calculated
from the time the complaint was filed. What the major-
ity fails to acknowledge, however, is that under these
same rules of construction, no exception that allows for
changing the time of calculation when a party has been
added after the initial complaint was filed can be found
either, contrary to the majority position in Rittenhouse,
supra at 217-218 (R
ILEY
, J.).
In Rittenhouse, the majority undertook to interpret
and rewrite this plain statutory provision to hold that
when a party is added to a lawsuit that is already in
progress, interest on the money judgment accrues not
from “the date of filing the complaint,” as instructed by
MCL 600.6013(8), but from “the date of the filing of the
complaint upon the defendant against whom the judg-
ment has been entered.” Rittenhouse, supra at 218
(R
ILEY
, J.) (emphasis added). But, just like the statute
contains no exceptions for periods of prejudgment ap-
pellate delay, Morales v Auto-Owners Ins Co (After
Remand), 469 Mich 487, 490-492; 672 NW2d 849
(2003), interest on claims added in amended com-
plaints, Phinney v Perlmutter, 222 Mich App 513, 539-
543; 564 NW2d 532 (1997), or interest on mediation
sanctions, ante at 717, it likewise contains no exception
1
In pertinent part, the statute in force at the relevant time instructed:
[F]or complaints filed on or after January 1, 1987, interest on
a money judgment recovered in a civil action is calculated at
6-month intervals from the date of filing the complaint....
Interest under this subsection is calculated on the entire amount
of the money judgment, including attorney fees and other costs.
2005] A
YAR V
F
OODLAND
D
ISTRIBUTORS
719
C
ONCURRING
O
PINION BY
C
AVANAGH
,J.
for interest on a judgment against a particular defen-
dant. See Rittenhouse, supra at 190-191 (B
RICKLEY
, J.).
These four conclusions are consistent, and all are
reached by recognizing that MCL 600.6013 is clear and
unambiguous and must be applied as written. Thus, I
find the majority’s attempt to distinguish this Court’s
holding in Rittenhouse, which was reached by rewriting
the statute, disingenuous in light of the majority’s
recognition in this case that the statute is “plain[],”
“clear[,] and unambiguous.” Ante at 716.
Second, I disagree that the majority should engage in
a patent imploration to the Legislature, see ante at 718,
to change a law to comport with the majority’s policy
views. The majority’s entreaty is not only inappropri-
ate, but it contravenes the central purpose of the
statute it seeks to change. MCL 600.6013 is a remedial
statute designed to “compensate the claimant for delays
in recovering money damages,” Yaldo v North Pointe
Ins Co, 457 Mich 341, 350; 578 NW2d 274 (1998), offset
costs incurred in bringing the action, encourage prompt
settlement, and discourage defendants from unneces-
sarily delaying litigation. Old Orchard by The Bay Assoc
v Hamilton Mut Ins Co, 434 Mich 244, 252-253; 454
NW2d 73 (1990), disavowed in part on other grounds
Holloway Constr Co v Oakland Co Bd of Co Rd
Comm’rs, 450 Mich 608 (1996). The majority should
not, on the basis of what it considers “meaningful policy
reasons,” ante at 718, engage in the business of “invit-
ing” the Legislature to revisit a policy that the Legisla-
ture has clearly already deemed meaningful by virtue of
enacting the statute that furthers it.
K
ELLY
, J., concurred with C
AVANAGH
,J.
720 472 M
ICH
713 [July
C
ONCURRING
O
PINION BY
C
AVANAGH
,J.
A
CTIONS ON
A
PPLICATIONS
ACTIONS ON APPLICATIONS FOR
LEAVE TO APPEAL FROM THE
COURT OF APPEALS
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal January 27, 2005:
T
ATE V
B
OTSFORD
G
ENERAL
H
OSPITAL
, No. 126603. Pursuant to MCR
7.302(G)(l), the clerk is to schedule oral argument on whether to grant
the application or take other peremptory action permitted by MCR
7.302(G)(l). The parties may file supplemental briefs within 28 days of
the date of this order. Court of Appeals No. 245081.
Summary Disposition January 27, 2005:
H
ADDIX V
M
AJCHRZYCKI
, No. 126496. In lieu of granting leave to appeal,
the Court of Appeals judgment is vacated, and the case is remanded to
that Court for reconsideration of both (1) the procedural deficiency issue,
which was raised sua sponte in the Court of Appeals, and (2) the
substantive issue—whether plaintiff has a “serious impairment of body
function”—in light of this Court’s decision in Kreiner v Fischer and
Straub v Collette, 471 Mich 109 (2004). MCR 7.302(G)(1). The Court of
Appeals is to consider further briefing on either or both issues, if it is
requested by either party. Jurisdiction is not retained. Court of Appeals
No. 244983.
K
ELLY,
J
.
I would deny leave to appeal.
Leave to Appeal Denied January 27, 2005:
P
EOPLE V
P
ATRICK
H
ENRY
, No. 125326. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 240081.
P
EOPLE V
B
ATES
, No. 126072. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 251123.
C
AVANAGH
and K
ELLY
, JJ. We would remand this case to the Wayne
Circuit Court for an evidentiary hearing.
P
EOPLE V
R
ANDLE
G
RIFFIN
, No. 126133. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 252589.
C
AVANAGH
and K
ELLY
, JJ. We would grant leave to appeal.
F
INNILA V
A
RKIN
, Nos. 126297, 126298; Court of Appeals Nos. 243371,
244155.
P
EOPLE V
P
IETRO
T
ERRELL
, No. 126397; Court of Appeals No. 243097.
C
AVANAGH
and K
ELLY
, JJ. We would grant leave to appeal.
.
A
CTIONS ON
A
PPLICATIONS
851
P
EOPLE V
T
EPATTI
, No. 126399; Court of Appeals No. 247009.
C
AVANAGH
and K
ELLY
, JJ. We would grant leave to appeal.
P
EOPLE V
C
HARLES
B
ROWN
, No. 126423; Court of Appeals No. 254612.
C
AVANAGH
and K
ELLY
, JJ. We would remand this case to the Jackson
Circuit Court for resentencing.
P
EOPLE V
J
ACOBS
, No. 126430. Whatever the propriety of departing
from the guideline range on the basis of defendant’s inability to pay
restitution, the trial court articulated other substantial and compelling
reasons on the basis of which the Supreme Court believes the trial court
would have departed from the guideline range to the same extent. The
Court is not persuaded that the other questions presented should be
reviewed by this Court. Court of Appeals No. 254499.
W
EAVER,
J
.
I would deny leave to appeal without the further statement
found in the majority’s order.
P
EOPLE V
F
OWLER
, No. 126436; Court of Appeals No. 253103.
T
HE
L
OCAL
A
REA
W
ATCH V
C
ITY OF
G
RAND
R
APIDS
, No. 126438; reported
below: 262 Mich App 136.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
P
ARCELL V
A
UTO
-O
WNERS
I
NSURANCE
C
OMPANY
, No. 126453; Court of
Appeals No. 246134.
K
ELLY
, J. I would grant leave to appeal.
P
EACOCK V
O
NAWAY
C
OMMUNITY
F
EDERAL
C
REDIT
U
NION
, No. 126490;
Court of Appeals No. 243460.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
P
EOPLE V
V
OSTRIRANCKY
, No. 126508; Court of Appeals No. 245897.
K
ELLY,
J
.
I would remand this case for resentencing.
P
EOPLE V
G
EORGE
M
YERS
, No. 126516; Court of Appeals No. 249626.
P
EOPLE V
C
URTIS
K
ELLY
, No. 126527; Court of Appeals No. 246228.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
J
OSEPH
R
OBINSON
, No. 126529; Court of Appeals No. 246708.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
B
ARAWSKAS
, No. 126532; Court of Appeals No. 254960.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
P
EOPLE V
R
OSSBACH
, No. 126559; Court of Appeals No. 245262.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
P
EOPLE V
H
ANAS
, No. 126595; Court of Appeals No. 254434.
C
AVANAGH,
K
ELLY,
and M
ARKMAN
, JJ. We would grant leave to appeal.
P
EOPLE V
C
ATO
, No. 126666; Court of Appeals No. 246619.
852 472 M
ICHIGAN
R
EPORTS
K
ELLY
, J. I would grant leave to appeal to consider the applicability of
Blakely v Washington, 542 US 296 (2004).
B
LYE V
A
LLIED
S
YSTEMS,
L
TD
, No. 126713; Court of Appeals No. 253500.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
P
EOPLE V
W
ESTCOMB
, No. 126763. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254031.
K
ELLY
, J. I would remand this case to the Newaygo Circuit Court for
resentencing.
P
EOPLE V
S
HANEBERGER
, No. 126876. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
256500.
Reconsideration Denied January 27, 2005:
S
CHMITZ V
C
ITIZENS
I
NSURANCE
C
OMPANY OF
A
MERICA
, No. 127034. Leave to
appeal denied at 471 Mich 913. Court of Appeals No. 256599.
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal January 28, 2005:
D
EAN V
C
HILDS
, No. 126393. Pursuant to MCR 7.302(G)(l), the clerk is
to schedule oral argument on whether to grant the application or take
other peremptory action permitted by MCR 7.302(G)(l). The parties shall
address only the question whether Childs’s actions or omissions were
“the” proximate cause of the deaths under Robinson v Detroit, 462 Mich
439 (2000). They may file supplemental briefs within 28 days of the date
of this order. The motions to file briefs amicus curiae are granted.
Reported below: 262 Mich App 48.
P
HOENIX
I
NVESTMENT
H
OLDING
C
OMPANY,
I
NC V
N
OSAN &
S
ILVERMAN
H
OMES,
LLC, No. 126561. Pursuant to MCR 7.302(G)(l), the clerk is to schedule
oral argument on whether to grant the application or take other
peremptory action permitted by MCR 7.302(G)(l). The parties shall
include among the issues to be addressed whether the Court of Appeals
erred in its finding that the liquidated damages provision did not cover a
nonmonetary default such as the failure to enter into excavation con-
tracts. The parties may file supplemental briefs within 28 days of the date
of this order. Court of Appeals No. 246398.
H
UBBARD V
N
ATIONAL
R
AILROAD
P
ASSENGER
C
ORPORATION
, No. 127240.
Pursuant to MCR 7.302(G)(l), the clerk is to schedule oral argument on
whether to grant the application or take other peremptory action
permitted by MCR 7.302(G)(l). The parties shall include among the issues
to be addressed whether the Wayne Circuit Court properly dismissed
plaintiff’s claim under the Federal Employers’ Liability Act, 45 USC 51 et
A
CTIONS ON
A
PPLICATIONS
853
seq., because plaintiff failed to present the opinion of an expert that the
locomotive cab seat was dangerous or defective. They may file supple-
mental briefs within 28 days of the date of this order. The motion for stay
is denied as unnecessary. MCR 7.302(C)(5)(a). Court of Appeals No.
246165.
Leave to Appeal Denied January 28, 2005:
W
OLF V
G
ENERAL
M
OTORS
C
ORPORATION
, No. 126249. Leave to file a brief
amicus curiae is granted. Reported below: 262 Mich App 1.
UAW -F
ORD
N
ATIONAL
E
DUCATION
D
EVELOPMENT AND
T
RAINING
C
ENTER V
C
ITY OF
D
ETROIT
, No. 126352; Court of Appeals No. 242809.
M
ANISTEE
C
OUNTY
R
OAD
C
OMMISSION V
N
ORTHWOODS
D
EVELOPMENT,
LLC,
No. 126471; Court of Appeals No. 243971.
P
EOPLE V
R
OBERT
H
OLLAND
, Nos. 126731, 126732; Court of Appeals Nos.
254725, 254728.
P
EOPLE V
K
EVIN
H
ARRINGTON
, No. 126946; Court of Appeals No. 253918.
W
EAVER
, J. I would remand this case to the Court of Appeals for
consideration as on leave granted.
C
ORRIGAN
, J. I respectfully dissent from the order denying the
prosecutor’s application for leave to appeal in this first-degree murder
case. I would remand this case to the Court of Appeals for consideration
as on leave granted. While Judge Michael Hathaway may arguably be
correct that defendant is entitled to a new trial, I believe that his
decision should be fully evaluated and tested by a three-judge panel
before the trial court is required to conduct a second trial at consider-
able taxpayer expense.
The majority does not explain its refusal to allow a full review of this
troubling case in the Court of Appeals. I have two fundamental concerns
about the majority’s action. First, the codefendant received a contradic-
tory ruling denying him relief on the very same Confrontation Clause
issue for which defendant received a new trial. This glaring inconsistency
warrants, at a minimum, a full review by the Court of Appeals.
Second, I am concerned that the majority, by refusing to accord full
appellate review, has left intact a decision that essentially rewards
conduct that no legal system should ever tolerate. Specifically, it appears
that retained defense counsel’s inappropriate and abusive behavior at
trial, including intimidating comments directed at the trial judge and the
prosecutor, may well have been designed to invite error. If the defense did
employ such a deliberate strategy at trial, it may preclude the grant of a
new trial on the basis of that misconduct.
At the very least, these issues deserve a thorough and considered
appellate review. The majority’s refusal to allow any such review—by
denying leave rather than remanding to the Court of Appeals for
consideration as on leave granted—is troubling.
854 472 M
ICHIGAN
R
EPORTS
I. INCONSISTENT CONFRONTATION CLAUSE RULINGS
I conclude that submission to a three-judge panel is warranted
because defendant and the codefendant received contradictory rulings on
the identical Confrontation Clause issue. They were tried jointly before a
single jury in the courtroom of Judge Diane Hathaway. Judge Hathaway
declared one of the witnesses for the prosecution unavailable after the
witness proved uncooperative on the stand. The prosecutor was then
allowed to use the witness’s preliminary examination testimony as
substantive evidence against both defendants. Both defendant and code-
fendant Clark had fully cross-examined this witness at the preliminary
examination.
It should be noted that both defendants apparently engaged in
witness intimidation tactics that likely caused the witness to freeze on
the stand. After murdering the victim, the defendants threatened to
harm the witness and her children if she informed the police about what
she saw. Further, during the codefendant’s preliminary examination, his
girlfriend threatened this witness by making a hand motion simulating a
slit throat. In addition, defendant overtly glared at the witness while she
attempted to testify at trial.
1
After the jury convicted both defendants of first-degree murder,
defendant retained another attorney and moved for a new trial. When
Judge Diane Hathaway recused herself, the case was transferred by blind
draw to Judge Michael Hathaway. The basis for defendant’s motion for a
new trial was his inability to cross-examine the witness who was declared
unavailable. Judge Michael Hathaway initially ruled that any error was
harmless and denied defendant’s motion. Likewise, Judge Diane Hatha-
way denied the codefendant’s motion for a new trial, which motion was
based on the identical confrontation argument.
Like defendant, the codefendant claimed that his confrontation rights
were violated when the prosecution’s witness was ruled unavailable at
trial and her preliminary examination testimony was thereafter read into
the record. Judge Diane Hathaway ruled that the codefendant was not
denied his right to confrontation because his misbehavior rendered the
witness unavailable. Judge Michael Hathaway, however, ultimately
reached a directly contrary conclusion, and ruled that defendant’s
confrontation rights were violated. The Court of Appeals should review
the matter and resolve the apparent contradiction.
In Crawford v Washington, 541 US 36, 62 (2004), the United States
Supreme Court stated that “the rule of forfeiture by wrongdoing...ex-
tinguishes confrontation claims on essentially equitable grounds....”
The prosecutor’s claim that defendant (and the codefendant) forfeited
their Sixth Amendment rights to confront their accuser by continually
intimidating the witness warrants plenary consideration, especially
1
Judge Michael Hathaway acknowledged in his first ruling denying
defendant’s motion for a new trial that, “one can sort of pick that up in
the trial transcript. I mean it’s obvious that she was spooked by
something.”
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where it resulted in contradictory rulings between the codefendants who
had alleged precisely the same claim of confrontation violation.
2
II. DEFENSE COUNSEL’S MISCONDUCT
The other apparent basis for the grant of a new trial was a claim of
ineffective assistance of counsel arising from retained defense counsel’s
misconduct. Throughout the trial, defense counsel behaved in a disre-
spectful and inappropriate manner toward the judge and the prosecutor.
While much of counsel’s behavior occurred outside the presence of the
jury, the jury was present on three occasions in which counsel was fined
by the trial court. In addition, it was later revealed that the jury
overheard defense counsel shout a disparaging comment to the prosecu-
tor while the jurors were in the jury room.
Judge Michael Hathaway took testimony regarding defense counsel’s
misconduct to use in referring counsel to the Attorney Grievance
Commission. During this hearing, Judge Hathaway learned that the
jurors overheard one of defense counsel’s disparaging comments directed
at the prosecutor. Following this revelation, defendant’s new counsel
moved again for a new trial, on the new basis of ineffective assistance of
counsel. Judge Michael Hathaway granted the motion, stating:
This trial was even worse than I thought it was in the first
place. I now know from [the prosecutor’s] testimony...[t]hat
[defense counsel’s] abuse of her took an extremely personal turn,
2
Interestingly, in his first ruling denying defendant’s motion for a new
trial, Judge Michael Hathaway stated:
But as flawed and as awkward as that methodology, which
ultimately was abandoned fortunately, but as flawed and as
awkward [as] it was, the defense attorney asked it to be done that
way.
It was [defense counsel] Mr. Evans who insisted on the People
proceeding on a question-by-question basis to determine whether
or not the witness had a recollection sufficient to answer any of the
questions she was asked.
And unless I’m missing something, virtually every question
that she did answer on direct examination in the trial was also
asked in the Preliminary Examination transcript in one way or
another, and the witness was very thoroughly cross-examined in
the Exam.
In fact, the cross-examination of that witness was three or four
times the length of the direct.
856 472 M
ICHIGAN
R
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and under the circumstances where the jury, whether they were in
the box or not. [sic] Apparently overheard the remarks that he
made to her, and that the jury commiserated with her about his
treatment of her, in discussing the case with her after the verdict,
in very sympathetic and supportive ways.
And when you combine [defense counsel’s] outrageous behav-
ior during the [course] of this trial, with the fact that the jury
knew about much of it, and commiserated with the prosecutor over
it, as any human being would, under these circumstances. [sic]
And then you also look back on the conduct of the trial itself, the
way in which this reluctant witness was, her testimony was
managed by the trial Court, and parts of her prior testimony read
in on a question-by-question basis.
The trial [court’s] ruling about the admission of that testi-
mony...[t]here is no question in my mind that this trial was a
complete wreck, in extremely basic and fundamental ways....
***
It’s not in any way the kind of strategy or behavior that we
could attribute to the defendant, or say that the defendant is
somehow benefiting from it.
Judge Michael Hathaway thus reconsidered his earlier denial of
defendant’s motion for a new trial, because of defense counsel’s “outra-
geous behavior.” What has not been tested through plenary appellate
review, however, is retained defense counsel’s ploy of creating an appel-
late parachute.
The apparent defense strategy of intimidating all those who stood in
the way of an acquittal, and of being as disruptive as possible, became
evident throughout these proceedings, beginning as early as the prelimi-
nary examination. An example of these tactics includes defense counsel’s
calling the assistant prosecuting attorney, who was a woman, a “tramp”
whom he wanted to “shut up.” Counsel’s obstructionist behavior forced
the court to hold him in contempt of court, to fine him three times during
the trial, and to send him to jail. Counsel even went so far as to accuse the
court of treating him like a “Negro slave,” and then dared the court to hold
him in contempt yet again. While these actions largely took place outside
the presence of the jury, they nonetheless appear to be actions designed to
goad the court with the hopes of establishing error requiring reversal.
Indeed, defense counsel’s own comments at trial suggest that his
outrageous behavior was designed to invite error and create an appellate
parachute. During trial, defense counsel made the apparently self-
fulfilling prophecy that “this is going to come back on appeal.” During his
closing argument, defense counsel told the jury:
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...please,pleasedon’t hold anything that I’ve done or my
confrontations with the Judge or the prosecution and my willing-
ness to be fined because you know what? My father, he used to
work for a judge....
***
. . . I’m a lawyer, not a doormat. And I’m going to do my job
whether I have to go broke in the process.
***
Don’t think about that. Don’t think about me being held in
contempt. That has nothing to do with it because I’m representing
my client.
Thus, defense counsel created an appellate parachute for a claim of
ineffective assistance of counsel while at the same time arguing to the
jury that the same ineffective assistance was simply part of doing his
“job.”
Because defense counsel’s misconduct was central to Judge Michael
Hathaway’s decision to grant a new trial, I believe we should remand
this case to the Court of Appeals so that a three-judge panel may fully
review this troubling case for invited error. This Court should not deny
plenary review of a decision that rewards such offensive and inappro-
priate behavior. For these reasons, I respectfully dissent from this
Court’s order denying the prosecutor’s application for leave to appeal.
M
OGASSABI V
C
HOJNACKI
, No. 127732; Court of Appeals No. 259025.
Interlocutory Appeals
Leave to Appeal Denied January 28, 2005:
G
ARON V
ACIA, No. 127774; Court of Appeals No. 258732.
C
OOPER V
A
UTO
C
LUB
I
NSURANCE
A
SSOCIATION
, No. 127848; Court of
Appeals No. 259729.
Reconsideration Denied January 28, 2005:
In re F
OONDLE
(F
AMILY
I
NDEPENDENCE
A
GENCY V
F
OONDLE
), Nos. 127455,
127456. Leave to appeal denied at 471 Mich 937. Court of Appeals Nos.
255548, 255795.
In re M
ORRIS
(F
AMILY
I
NDEPENDENCE
A
GENCY V
M
ORRIS
), No. 127486.
Leave to appeal denied at 471 Mich 937. Court of Appeals No. 255222.
858 472 M
ICHIGAN
R
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Summary Dispositions January 31, 2005:
P
EOPLE V
M
ICHAEL
G
REEN
, No. 126632. In lieu of granting leave to
appeal, the case is remanded to the Genesee Circuit Court for entry of an
amended Judgment of Sentence. MCR 7.302(G)(1). Defendant pleaded
guilty to two counts of criminal sexual conduct in the third degree.
Although the Judgment of Sentence reflects a minimum sentence of 178
months for one count of criminal sexual conduct and 175 months for the
other, the trial judge expressed her intent to sentence defendant to
minimum terms of 175 months for both counts. The Judgment of
Sentence is to be amended accordingly. In all other respects, leave to
appeal is denied. Jurisdiction is not retained. Court of Appeals No.
255039.
In re B
ANKS
(F
AMILY
I
NDEPENDENCE
A
GENCY V
B
ANKS
), No. 127292. On
January 13, 2005, the Court heard oral argument on the application for
leave to appeal the September 30, 2004, judgment of the Court of
Appeals. On order of the Court, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, the case is remanded to the St. Clair Circuit
Court, Family Division, to determine, for each of the two children,
whether “there is a reasonable likelihood that the child will suffer from
injury or abuse in the foreseeable future if placed in [respondent]’s
home.” MCL 712A.19b(3)(b)(i). The St. Clair Circuit Court, Family
Division, may conduct additional proceedings or evidentiary hearings, if
necessary, and shall expedite its consideration of this matter. Jurisdiction
is retained. Court of Appeals No. 252617.
Justices C
AVANAGH
and C
ORRIGAN
concur, Chief Justice T
AYLOR
joins the
statement of Justice C
AVANAGH
, and Justice K
ELLY
dissents, in statements
set forth below:
C
AVANAGH,
J
.
(concurring). This is an especially difficult termination
case. I would prefer to defer to the determination made by the Court of
Appeals and deny leave. However, I concur with the remand inasmuch
as it allows the trial court to again review this matter in accordance
with the statutory criteria, take additional testimony if requested,
consider the current circumstances, and clearly articulate the bases for
whatever findings it makes. The “findings” and “conclusions” outlined
in Justice C
ORRIGAN
’s concurrence are hers and hers alone and are not
shared by me. As we are retaining jurisdiction in this matter, such
determinations are better made by a review of the record following our
remand.
T
AYLOR,
C.J. I join the statement of Justice C
AVANAGH.
C
ORRIGAN,
J
.
I concur with this Court’s decision to remand this case so
that the St. Clair Circuit Court, Family Division, can articulate a separate
conclusion regarding the reasonable likelihood that respondent’s two
children “will suffer from injury or abuse in the foreseeable future” if
returned to her. MCL 712A.19b(3)(b)(i). I write to emphasize the follow-
ing points.
MCL 712A.10(1)(c) provides that a referee may “make...arecom-
mendation for the court’s findings and disposition.” (Emphasis added.)
A referee’s recommended findings are entitled to no deference by the
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859
circuit court. Here, the circuit court rejected the referee’s recommen-
dations and found that respondent intentionally (1) removed the
window blinds, (2) pried off the seal around the screen, and (3) threw
her seven-month-old baby out a second-story window. On this basis, the
circuit court held that respondent’s children were “likely to suffer from
injury or abuse in the foreseeable future” if returned to respondent.
MCL 712A.19b(3)(b)(i). A reviewing court is required to affirm the
circuit court’s decision to terminate parental rights unless it is clearly
erroneous. In re Miller, 433 Mich 331, 338 (1989); MCR 3.977(J).
While I do not believe the circuit court clearly erred in this case, I
believe its legal conclusions are incomplete. The court properly rejected
the referee’s conclusion that the baby’s two-story “fall” was directly
related to the respondent mother’s mental illness because respondent’s
attorney specifically argued the contrary during closing argument:
I’m really not thinking, from my view of the testimony, that
there was any connection between her illness and what I would
firmly believe is the accident with respect to the child. [Emphasis
added.]
Ample record evidence supported the circuit court’s conclusion that
respondent intentionally threw her child out the second-story window.
Specifically, the child landed approximately twenty-two inches away from
the home. This supports the theory that the child was thrown from the
window and not dropped, as respondent insisted. Moreover, respondent
stated that when she used the sink to wash her hands before the
“accident,” nothing impeded her access. When it was pointed out to her
that a set of blinds lay across the sink, she opined that the wind must have
blown the blinds down and to the left, depositing them directly across the
sink. Respondent’s “wind” theory is patently ridiculous.
While the circuit court properly concluded that respondent acted
intentionally when she threw her child out the second-story window, the
court’s opinion did not grapple with how respondent’s intentional actions
created “a reasonable likelihood that the child[ren] will suffer from injury
or abuse in the foreseeable future if placed in [respondent]’s home.” MCL
712A.19b(3)(b)(i). In my view, respondent’s lack of candor under oath, as
well as her refusal or inability to take responsibility for her intentional acts
indicates that she is still in denial about the seriousness of her actions.
Given her denial and her refusal to take responsibility, I believe respon-
dent’s children do face a reasonable likelihood of further harm if they are
returned to her.
K
ELLY,
J
.
I dissent from the majority’s decision to remand this case to
the circuit court for further proceedings. Because that court never
articulated that a reasonable likelihood exists that the children will suffer
from injury if returned to respondent, it failed in its effort to terminate
under MCL 712A.19b(3)(b)(i). Therefore, the Court of Appeals correctly
reversed the decision. I would deny leave to appeal.
860 472 M
ICHIGAN
R
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If leave were denied and if respondent could not comply with her
treatment plan, she would not regain her children, and the Family
Independence Agency could again seek termination.
Because the case is being remanded for further action by the judge, I
add that I do not share the “findings” and “conclusions” in Justice
C
ORRIGAN
’s concurrence. I urge the judge on remand to make an indepen-
dent and updated review of the merits of the question of future injury.
Leave to Appeal Denied January 31, 2005:
V
ASQUEZ V
V
ASQUEZ
, No. 126472; Court of Appeals No. 244222.
P
EOPLE V
C
LOY
, No. 126505; Court of Appeals No. 246073.
P
EOPLE V
A
NDREWS
, No. 126520; Court of Appeals No. 244054.
P
EOPLE V
M
UEHLENBEIN
, No. 126521; Court of Appeals No. 244712.
J
OACHIM V
LSM F
AMILY
T
RUST
, No. 126523; Court of Appeals No.
245586.
P
EOPLE V
M
C
C
REARY
, No. 126570; Court of Appeals No. 240822.
P
EOPLE V
S
HARMA
, No. 126573; Court of Appeals No. 252105.
B
YNUM V
G
ROSSE
I
LE
T
OWNSHIP
, Nos. 126618, 126619; Court of Appeals
Nos. 245842, 248087.
P
EOPLE V
T
ROY
M
ANNING
, No. 126622; Court of Appeals No. 246535.
P
EOPLE V
H
EINLE
, No. 126630; Court of Appeals No. 241570.
Y
PSILANTI
C
HARTER
T
OWNSHIP V
M
ILLER
, No. 126642; Court of Appeals
No. 243879.
M
C
F
ARLAND V
T
RAVELERS
I
NSURANCE
C
OMPANY
, No. 126685; Court of
Appeals No. 245771.
P
EOPLE V
W
OODRUFF
, No. 126690; Court of Appeals No. 247897.
P
EOPLE V
G
AILAN
S
MITH
, No. 126692; Court of Appeals No. 247946.
P
EOPLE V
A
RTHUR
S
MITH
, No. 126697; Court of Appeals No. 247826.
G
ESING V
C
ITY OF
W
ARREN
, No. 126710; Court of Appeals No. 244501.
P
EOPLE V
A
NTHONY
H
ENRY
, No. 126730; Court of Appeals No. 244240.
P
EOPLE V
E
DMUNDS
, No. 126734; Court of Appeals No. 245498.
P
EOPLE V
T
ATUM
, No. 126735; Court of Appeals No. 248037.
P
EOPLE V
D
ERRICK
G
ARNER
, No. 126741; Court of Appeals No. 255297.
P
EOPLE V
O
VERTON
, No. 126742; Court of Appeals No. 246929.
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861
L
ITTLE V
H
IRSCHMAN
, No. 126750; Court of Appeals No. 227751 (on
remand).
P
EOPLE V
A
LLEN
, No. 126754; Court of Appeals No. 246416.
P
EOPLE V
M
ARVIN
L
EE
, No. 126761; Court of Appeals No. 244703.
P
EOPLE V
L
AROME
S
MITH
, No. 126762; Court of Appeals No. 246632.
P
EOPLE V
W
OOD
, No. 126774; Court of Appeals No. 245195.
P
EOPLE V
G
ORENC
, No. 126781; Court of Appeals No. 253465.
P
EOPLE V
M
ADYUN
, No. 126783; Court of Appeals No. 246016.
P
EOPLE V
D
AUGHERTY
, No. 126788; Court of Appeals No. 252665.
P
EOPLE V
P
OTTS
, No. 126790; Court of Appeals No. 245588.
P
EOPLE V
B
OOKER
H
UDSON
, No. 126791; Court of Appeals No. 246403.
C
AVANAGH
, J. I would grant leave to appeal to reconsider People v
Stevens (After Remand), 460 Mich 626 (1999).
P
EOPLE V
D
ABNEY
, No. 126807; Court of Appeals No. 246618.
P
EOPLE V
C
HRISTOPHER
M
ULLINS
, No. 126809; Court of Appeals No.
246892.
P
EOPLE V
F
REDERICK
W
ILLIAMS
, No. 126812; Court of Appeals No.
245176.
P
EOPLE V
H
ERBERT
L
EE
, No. 126819; Court of Appeals No. 246418.
P
EOPLE V
L
EACH
, No. 126820; Court of Appeals No. 254397.
P
EOPLE V
T
INCHER
, No. 126829; Court of Appeals No. 246891.
P
EOPLE V
F
ERGUSON
, No. 126830; Court of Appeals No. 255474.
P
EOPLE V
H
ARRISON
, No. 126838; Court of Appeals No. 255502.
M
URRAY V
D
EPARTMENT OF
C
ORRECTIONS
, No. 126855; Court of Appeals
No. 255383.
P
EOPLE V
S
TEVENSON
, No. 127297; Court of Appeals No. 254856.
P
EOPLE V
C
AMBURN
, No. 127496; Court of Appeals No. 246786.
O
AKES V
M
ESSINGER
, No. 127565; Court of Appeals No. 254778.
P
EOPLE V
A
DELSON
, No. 127638; Court of Appeals No. 255859.
W
INALIS V
K
HATTAR
, No. 127683; Court of Appeals No. 259053.
Reconsideration Denied January 31, 2005:
P
EOPLE V
M
ONTAGUE
, No. 123851. Leave to appeal denied at 471 Mich
911. Court of Appeals No. 232314.
862 472 M
ICHIGAN
R
EPORTS
S
MITH V
C
OMMUNITY
E
MERGENCY
M
EDICAL
S
ERVICE
, No. 123883. Leave to
appeal denied at 471 Mich 894. Court of Appeals No. 247770.
B
OWERS V
C
ITY OF
F
LINT,
No. 125105. Leave to appeal denied at 471
Mich 892. Court of Appeals No. 251062.
P
EOPLE V
M
OFFIT
, No. 125322. Leave to appeal denied at 471 Mich
894. Court of Appeals No. 252109.
E
LSWORTH
E
NTERPRISES,
I
NC V
G
ENESYS
R
EGIONAL
M
EDICAL
C
ENTER
, No.
125423. Leave to appeal denied at 471 Mich 888. Court of Appeals No.
248446.
M
ARKMAN
, J. I would grant reconsideration and, on reconsideration,
would grant leave to appeal.
P
EOPLE V
E
DDIE
T
HOMPSON
, No. 125452. Leave to appeal denied at 471
Mich 895. Court of Appeals No. 252236.
P
EOPLE V
N
EFF
, No. 125937. Leave to appeal denied at 471 Mich
872. Court of Appeals No. 253194.
In re B
ENJAMIN
J
OHN
A
ZZAR
L
IVING
T
RUST
(E
LLIS V
A
ZZAR
), Nos. 125951-
125953. Leave to appeal denied at 471 Mich 872. Court of Appeals Nos.
238476, 241119, 243766.
P
EOPLE V
L
EON
D
AVIS
, No. 125962. Leave to appeal denied at 471 Mich
906. Court of Appeals No. 243809.
W
INDSOR
C
HARTER
T
OWNSHIP V
A
ZZAWI
, No. 126003. Leave to appeal
denied at 471 Mich 873. Court of Appeals No. 249876.
SHR L
IMITED
P
ARTNERSHIP V
S
HELL
O
IL
C
OMPANY
, No. 126114. Leave to
appeal denied at 471 Mich 885. Court of Appeals No. 251927.
In re T
UCKER
(F
AMILY
I
NDEPENDENCE
A
GENCY V
T
UCKER
), No. 127321.
Leave to appeal denied at 471 Mich 919. Court of Appeals No. 252651.
Leave to Appeal Denied February 3, 2005:
C
RIGLER V
B
RYAN
, No. 126310; Court of Appeals No. 246174.
P
EOPLE V
J
EFFREY
R
ICHARDS
, No. 126708; Court of Appeals No. 245264.
P
EOPLE V
D
ASHKOVITZ
, No. 126712; Court of Appeals No. 245847.
C
AVANAGH
and K
ELLY
, JJ. We would grant leave to appeal.
P
EOPLE V
C
OHEN
, No. 127205; Court of Appeals No. 256919.
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal February 25, 2005:
P
EOPLE V
M
C
K
AY
, No. 126930. The clerk is to schedule oral argument
on whether to grant the application or take other peremptory action
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CTIONS ON
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863
permitted by MCR 7.302(G)(l). The oral argument is limited to the
following issue: whether Offense Variable 13 of the sentencing guidelines,
MCL 777.43, was properly scored. The parties may file supplemental
briefs within 28 days of the date of this order.
C
AVANAGH
and K
ELLY,
JJ. We would grant oral argument on both issues.
Leave to Appeal Denied February 25, 2005:
P
EOPLE V
W
ATTS
, No. 126512; Court of Appeals No. 246881.
K
ELLY
,J.(dissenting). Defendant is a police officer who committed
perjury in a drug case. He was charged and tried for the offense. At trial,
the prosecution made civic duty arguments to the jury in its closing
argument.
The prosecutor told the jury that the police community and legal
community would watch the case to see “what we’re going to say about
this conduct....”
During rebuttal, the prosecutor continued, “And if we can’t get [a
guilty verdict] from you...wemayaswellpackupourtentandgohome
because we can’t go on and present cases and fight crime and try and
solve it if we don’t have that from you in a case like this where we have
to have a statement through a verdict of guilty....”
Defense counsel did not object. Nonetheless, I agree with Judge
M
ETER
’s Court of Appeals dissent that these improper arguments consti-
tuted plain, prejudicial error that seriously affected the fairness and
integrity of the judicial proceedings. People v Carines, 460 Mich 750,
763-764 (1999).
The prosecutor was asking the jury to convict defendant because any
other verdict would signal to the police that our society condones perjury
by law enforcement officers. This was obviously a civic duty argument,
one that our courts have long held is legally improper.
These exhortations seriously affect the fairness and integrity of the
judicial proceedings. They beg the jury to send a message to others by its
verdict. The message in this case was that society will not tolerate
dishonesty from law enforcement officers on the witness stand.
While all can agree that we must not tolerate such dishonesty, the trial
of an accused is not the forum from which to send that message. The
reason is, of course, that jurors in criminal trials are not empaneled to
send a message to law enforcement, or to any other civic body. Their job
is not to fight crime. Rather, their sworn mission is to determine the guilt
or innocence of the accused who appears before them. Civic duty
arguments cannot be tolerated lest we imprison people, not for their
alleged illegal acts, but to right the wrongs of our institutions and of
society in general.
The improper urgings on the prosecutor’s part in this case denied
defendant a fair trial. They rendered suspect the fairness and impartial-
ity of the proceedings. For that reason, defendant’s conviction should be
reversed and the case remanded for a new trial.
C
AVANAGH
, J. I join the statement of Justice K
ELLY
.
864 472 M
ICHIGAN
R
EPORTS
In re K
RANZ
(F
AMILY
I
NDEPENDENCE
A
GENCY V
K
RANZ
) and In re L
UST
(F
AMILY
I
NDEPENDENCE
A
GENCY V
K
RANZ
), Nos. 128009-128011; Court of
Appeals Nos. 254029, 254030, 254425.
Interlocutory Appeal
Leave to Appeal Denied February 25, 2005:
P
EOPLE V
C
HARLIE
J
ONES
, No. 127932; Court of Appeals No. 259972.
Summary Disposition February 28, 2005:
P
EOPLE V
C
ARL
S
MITH
, No. 126920. In lieu of granting leave to appeal,
the case is remanded to the Genesee Circuit Court pursuant to MCR
6.425(D)(3) to correct or delete the challenged information in the
presentence report that was not taken into account in sentencing and, if
necessary, to amend the restitutionary amount prescribed by the judg-
ment of sentence, which appears to exceed the total of the amounts
defendant fraudulently obtained or embezzled reflected in the presen-
tence report’s victim loss summary. MCR 7.302(G)(1). In all other
respects, leave to appeal is denied. Jurisdiction is not retained. Court of
Appeals No. 255799.
Leave to Appeal Denied February 28, 2005:
P
EOPLE V
M
IMS
, No. 125866; Court of Appeals No. 244065.
M
ABINS V
B
USTOS
, No. 125974; Court of Appeals No. 239099.
M
ANZO V
P
ETRELLA
, No. 126256; reported below: 261 Mich App 705.
P
EOPLE V
A
NTHONY
J
ONES
, No. 126258; Court of Appeals No. 245890.
P
EOPLE V
P
AUL
S
MITH
, No. 126285; Court of Appeals No. 242738.
P
EOPLE V
R
ANDY
P
ATTERSON
, No. 126359; Court of Appeals No. 254272.
P
EOPLE V
P
ICKETT
, No. 126442; Court of Appeals No. 246138.
P
EOPLE V
S
COTT
O
WENS
, No. 126480; Court of Appeals No. 244917.
P
EOPLE V
L
ONNIE
W
ILLIAMS
, No. 126486; Court of Appeals No. 246011.
A
LTEGRA
C
REDIT
C
OMPANY V
D
AAJA
-R
A
, No. 126535; Court of Appeals No.
253432.
R
ORKE V
S
AVOY
E
NERGY,
LP, No. 126560; Court of Appeals No. 245317.
P
EOPLE V
B
RIAN
P
AIGE
, No. 126593; Court of Appeals No. 254555.
P
EOPLE V
T
HOMAS
B
ROOKS
, No. 126635; Court of Appeals No. 245252.
A
CTIONS ON
A
PPLICATIONS
865
L
OUIS
JE
YDE
L
IMITED
F
AMILY
P
ARTNERSHIP V
M
ERIDIAN
C
HARTER
T
OWNSHIP
,
No. 126674; Court of Appeals No. 248312.
K
OOPMANS V
W
ASTE
M
ANAGEMENT OF
M
ICHIGAN,
I
NC
, No. 126678; Court of
Appeals No. 246852.
T
HE
M
ABLE
C
LEARY
T
RUST V
T
HE
E
DWARD
-M
ARLAH
M
UZYL
T
RUST
, No.
126679; reported below: 262 Mich App 485.
F
LINT
P
ROFESSIONAL
F
IREFIGHTERS
U
NION
L
OCAL
352vC
ITY OF
F
LINT,
AFSCME C
OUNCIL,
L
OCALS
1600
AND
1799 v C
ITY OF
F
LINT,
and F
LINT
P
OLICE
O
FFICERS
A
SSOCIATION V
C
ITY OF
F
LINT
, Nos. 126681-126683. Application for
leave to cross-appeal is also denied. Court of Appeals Nos. 244953,
244961, 244985.
P
EOPLE V
E
NGLISH
, No. 126698; Court of Appeals No. 247354.
P
EOPLE V
M
ACK
, No. 126700; Court of Appeals No. 245057.
P
EOPLE V
D
ARYL
P
ARKER
N
O
1, No. 126702; Court of Appeals No.
244118.
P
EOPLE V
T
RACY
R
OBINSON
, No. 126719; Court of Appeals No. 253319.
P
EOPLE V
G
RAHAM
, No. 126738; Court of Appeals No. 246726.
S
MITH V
C
OLEMAN
, No. 126745; Court of Appeals No. 243768.
H
IGHLAND
P
ARK
P
OLICEMEN AND
F
IREMEN
R
ETIREMENT
S
YSTEM V
C
ITY OF
H
IGHLAND
P
ARK
, No. 126749; Court of Appeals No. 252424.
P
EOPLE V
B
ARNES
, No. 126764; Court of Appeals No. 247037.
P
EOPLE V
M
ARSHAWN
P
ORTER
, No. 126765; Court of Appeals No. 254417.
S
OTO V
D
EPARTMENT OF
C
ORRECTIONS
, No. 126767; Court of Appeals No.
255937.
S
ANILAC
C
OUNTY
P
ARKS
C
OMMISSION V
L
EXINGTON
T
OWNSHIP
, Nos. 126772,
126773; Court of Appeals Nos. 244858, 244960.
P
EOPLE V
M
OBLEY
, No. 126776; Court of Appeals No. 246020.
P
EOPLE V
C
OWANS
, No. 126777; Court of Appeals No. 248976.
P
EOPLE V
C
OLEN
, No. 126784; Court of Appeals No. 255673.
P
EOPLE V
P
HAN
, No. 126786; Court of Appeals No. 249703.
P
EOPLE V
K
ALA
W
HITE
, Nos. 126792, 126793; Court of Appeals Nos.
221694, 232606.
P
EOPLE V
C
OLEMAN
, No. 126794; Court of Appeals No. 254208.
P
EOPLE V
D
ARRETT
K
ING
, No. 126797; Court of Appeals No. 245766.
P
EOPLE V
M
ALACHI
W
ASHINGTON
, No. 126799; Court of Appeals No.
247713.
866 472 M
ICHIGAN
R
EPORTS
P
EOPLE V
R
AY
, No. 126806; Court of Appeals No. 247510.
P
EOPLE V
M
C
K
ECHNIE
, No. 126813; Court of Appeals No. 255602.
P
EOPLE V
D
OUGLAS
, No. 126814; Court of Appeals No. 254900.
P
EOPLE V
B
ULLS
, No. 126817; reported below: 262 Mich App 618.
K
ORN V
S
OUTHFIELD
C
ITY
C
LERK
, No. 126818. Application for leave to
cross-appeal is denied as moot. Court of Appeals No. 251827.
P
EOPLE V
J
OSEPH
P
ATTERSON
, No. 126823; Court of Appeals No. 254441.
S
T
J
OSEPH
M
ERCY
H
OSPITAL V
T
HOMAS
, No. 126826; Court of Appeals No.
253567.
P
EOPLE V
S
EAN
R
OGERS
, No. 126827; Court of Appeals No. 247616.
P
EOPLE V
D
ARYL
P
ARKER
N
O
2, No. 126828; Court of Appeals No.
243485.
L
ANDON V
G
ENESEE
F
AMILY
C
OURT
J
UDGE
, No. 126831; Court of Appeals
No. 255299.
S
AGINAW
S
CHOOL
D
ISTRICT V
G
AERTNER
, No. 126832; Court of Appeals No.
253581.
P
EOPLE V
D
RAIN
, No. 126840; Court of Appeals No. 246014.
P
EOPLE V
B
UTLER
, No. 126843; Court of Appeals No. 247043.
P
EOPLE V
D
AVID
AC
AMPBELL
, No. 126844; Court of Appeals No. 246271.
D
UNLAP V
W
AYNE
C
IRCUIT
J
UDGE
, No. 126850; Court of Appeals No.
255334.
P
EOPLE V
M
ILLS
, No. 126856; Court of Appeals No. 247948.
P
EOPLE V
T
ANSIL
, No. 126857; Court of Appeals No. 255553.
P
EOPLE V
A
NTHONY
R
OGERS
, No. 126862; Court of Appeals No. 255417.
P
EOPLE V
J
ESSE
K
ELLY
, No. 126863; Court of Appeals No. 255585.
P
EOPLE V
L
AHTI
-P
ETERSON
, No. 126865; Court of Appeals No. 254925.
P
EOPLE V
T
HURSAM
, No. 126869; Court of Appeals No. 255209.
P
EOPLE V
W
ALLACE
, No. 126873; Court of Appeals No. 255684.
P
EOPLE V
A
USSICKER
, No. 126877; Court of Appeals No. 245058.
10
AND
S
COTIA
E
XPRESS,
LLCvT
ARGET
C
ONSTRUCTION,
I
NC
, No. 126878;
Court of Appeals No. 244827.
P
EOPLE V
S
CHUIL
, No. 126885; Court of Appeals No. 254558.
P
EOPLE V
P
IBULDHANAPATANA
, No. 126887; Court of Appeals No. 254886.
P
EOPLE V
M
ULLEN
, No. 126890; Court of Appeals No. 244700.
A
CTIONS ON
A
PPLICATIONS
867
P
EOPLE V
N
EVELS
, No. 126898; Court of Appeals No. 255422.
P
EOPLE V
M
ADDOX
, No. 126907; Court of Appeals No. 247601.
P
EOPLE V
G
ARCIA
, No. 126912; Court of Appeals No. 246154.
P
EOPLE V
B
ARTHOLOMEW
, No. 126915; Court of Appeals No. 255677.
P
EOPLE V
B
RIDINGER
, No. 126919; Court of Appeals No. 255552.
P
EOPLE V
B
YARS
, No. 126923; Court of Appeals No. 254666.
P
EOPLE V
C
HARLIE
W
ASHINGTON
, No. 126960; Court of Appeals No.
247127.
P
EOPLE V
K
IMBROUGH
, No. 126987; Court of Appeals No. 246812.
P
EOPLE V
B
USWA
, No. 127001; Court of Appeals No. 255654.
P
EOPLE V
T
RUDEAU
, No. 127030; Court of Appeals No. 246938.
P
EOPLE V
A
USTIN
, No. 127038; Court of Appeals No. 256379.
P
EOPLE V
J
ACOB
M
ARTIN
, No. 127116; Court of Appeals No. 247429.
P
EOPLE V
B
OLDUC
, No. 127243; reported below: 263 Mich App 430.
P
EOPLE V
K
EITH
, No. 127495; Court of Appeals No. 256010.
P
EOPLE V
D
EQUAN
M
AHAN
, No. 127497; Court of Appeals No. 255247.
E
YDE V
S
TATE OF
M
ICHIGAN
, No. 127508; Court of Appeals No. 257690.
P
EOPLE V
Q
URESHI
, No. 127726; Court of Appeals No. 258472.
In re R
OGERS
(F
AMILY
I
NDEPENDENCE
A
GENCY V
A
GUIRRE
), No. 127821;
Court of Appeals No. 255479.
In re H
ICKS
(F
AMILY
I
NDEPENDENCE
A
GENCY V
H
ICKS
), No. 127885; Court
of Appeals No. 255540.
Interlocutory Appeals
Leave to Appeal Denied February 28, 2005:
P
EOPLE V
L
ONSBY
, No. 126879; Court of Appeals No. 250559.
S
UNDELL V
N
ATIONWIDE
I
NSURANCE
C
OMPANY
, No. 126981; Court of
Appeals No. 255218.
B
IORESOURCE,
I
NC V
C
ITY OF
D
ETROIT
, Nos. 127680, 127681; Court of
Appeals Nos. 241137, 241168 (on reconsideration).
Reconsideration Denied February 28, 2005:
K
NECHT V
Q
UICK
-S
AV
F
OOD
S
TORES,
L
TD
, No. 121622. Leave to appeal
denied at 471 Mich 870. Court of Appeals No. 239672.
868 472 M
ICHIGAN
R
EPORTS
B
ROWN V
B
RECON
C
OMMONS,
LLC, No. 123600. Leave to appeal denied at
471 Mich 894. Court of Appeals No. 233188.
K
ELLY
, J. I would grant reconsideration.
N
ELSON V
G
RAY
, No. 124795. Leave to appeal denied at 471 Mich
883. Court of Appeals No. 236369.
P
EOPLE V
R
ODNEY
H
ICKS
, No. 125461. Leave to appeal denied at 471
Mich 927. Reported below: 259 Mich App 518.
P
EOPLE V
A
NTON
M
ARSHALL
, No. 125608. Leave to appeal denied at 471
Mich 893. Court of Appeals No. 242774.
P
EOPLE V
E
DDINGTON
, No. 125670. Leave to appeal denied at 471 Mich
927. Court of Appeals No. 248852.
K
ELLY,
J
.
I would grant reconsideration. On reconsideration, I would
vacate the Wayne Circuit Court’s orders of February 6, 2003, and April 7,
2003, denying the defendant’s motion for resentencing pursuant to MCR
6.508(D)(2) and defendant’s motion for reconsideration, and remand the
case to the Wayne Circuit Court for reconsideration of the defendant’s
motion as one seeking relief from judgment in the form of resentencing.
The trial judge’s opinion denying the motion mistakenly identified as the
issues raised those that the defendant had raised in his appeal of right.
Thus, the court did not deal with the issues which were in fact presented
in the motion seeking relief from judgment in the form of resentencing.
P
EOPLE V
D
WIGHT
W
ILLIAMS
, No. 125732. Leave to appeal denied at 471
Mich 896. Court of Appeals No. 251660.
P
EOPLE V
D
ALY
, No. 125788. Leave to appeal denied at 471 Mich
906. Court of Appeals No. 243958.
C
AVANAGH
and K
ELLY
, JJ. We would grant reconsideration and, on
reconsideration, would remand this case to the Court of Appeals for
reconsideration in light of Crawford v Washington, 541 US 36 (2004).
P
EOPLE V
D
ERICO
T
HOMPSON
, No. 125799. Leave to appeal denied at 471
Mich 919. Court of Appeals No. 237602.
D
EITERING V
G
RAND
B
LANC
C
HARTER
T
OWNSHIP
, No. 125824. Leave to
appeal denied at 471 Mich 906. Court of Appeals No. 244158.
C
AVANAGH
and K
ELLY,
JJ. We would grant reconsideration and, on
reconsideration, would grant leave to appeal.
W
EAVER,
J. I would grant reconsideration and, on reconsideration,
would grant leave to appeal because this Court should review the issue
presented.
L
OCKWOOD
B
UILDING
C
OMPANY,
I
NC V
D
EMPSEY
, No. 125865. Leave to
appeal denied at 471 Mich 919. Court of Appeals No. 241508.
W
ANG V
S
PORLEDER
, No. 125869. Leave to appeal denied at 471 Mich
906. Court of Appeals No. 244611.
A
CTIONS ON
A
PPLICATIONS
869
C
AVANAGH
and K
ELLY
, JJ. We would grant reconsideration and, on
reconsideration, would grant leave to appeal.
P
EOPLE V
D
ELL
, No. 125882. Leave to appeal denied at 471 Mich
897. Court of Appeals No. 250754.
P
EOPLE V
M
ARIO
E
VANS
N
O
1, No. 125969. Leave to appeal denied at 471
Mich 906. Court of Appeals No. 238184.
C
AVANAGH
and K
ELLY,
JJ. We would grant reconsideration and, on
reconsideration, would grant leave to appeal.
P
EOPLE V
R
UELAS
, No. 126002. Leave to appeal denied at 471 Mich
927. Court of Appeals No. 253463.
G
ILLETTE V
C
OMSTOCK
T
OWNSHIP
and G
ILLETTE V
S
TUCKI
, Nos. 126020,
126021. Leave to appeal denied at 471 Mich 898, 899. Court of Appeals
Nos. 240198, 240199.
P
EOPLE V
C
ONIC
, No. 126034. Leave to appeal denied at 471 Mich
899. Court of Appeals No. 250373.
P
EOPLE V
S
TEPHAN
, No. 126153. Leave to appeal denied at 471 Mich
886. Court of Appeals No. 241051.
P
EOPLE V
M
ARIO
E
VANS
N
O
2, No. 126167. Leave to appeal denied at 471
Mich 907. Court of Appeals No. 240357.
C
AVANAGH
and K
ELLY
, JJ. We would grant reconsideration and, on
reconsideration, would grant leave to appeal.
P
EOPLE V
M
ARY
L
ITTLE
, No. 126194. Leave to appeal denied at 471 Mich
900. Court of Appeals No. 253935.
P
EOPLE V
D
AVID
MC
AMPBELL
, No. 126224. Leave to appeal denied at 471
Mich 946. Court of Appeals No. 246967.
P
EOPLE V
C
ONWAY
, No. 126235. Leave to appeal denied at 471 Mich
900. Court of Appeals No. 246026.
P
EOPLE V
A
RQUETTE
, No. 126245. Leave to appeal denied at 471 Mich
933. Court of Appeals No. 244940.
K
ELLY
, J. I would grant reconsideration and, on reconsideration,
would remand for resentencing.
S
MITH V
A
KERLIND
, No. 126257. Leave to appeal denied at 471 Mich
920. Court of Appeals No. 244661.
L
A
S
ALLE
N
ATIONAL
B
ANK V
M
ASTER
G
UARD
H
OME
S
ECURITY,
I
NC
,No.
126263. Leave to appeal denied at 471 Mich 901. Court of Appeals No.
252571.
P
EOPLE V
M
C
C
AIN
, No. 126411. Leave to appeal denied at 471 Mich
921. Court of Appeals No. 243336.
870 472 M
ICHIGAN
R
EPORTS
B
ECKER V
R
ICHARDS
, No. 126985. Leave to appeal denied at 471 Mich
922. Court of Appeals No. 245423.
In re B
ROWN
(F
AMILY
I
NDEPENDENCE
A
GENCY V
J
IM
B
ROWN
) and In re
T
HACKER
(F
AMILY
I
NDEPENDENCE
A
GENCY V
T
AMMY
B
ROWN
), Nos. 127557,
127558. Leave to appeal denied at 471 Mich 943. Court of Appeals Nos.
254733, 254750.
Leave to Appeal Denied March 4, 2005:
In re U
NGER
(F
AMILY
I
NDEPENDENCE
A
GENCY V
U
NGER
), No. 127617;
reported below: 264 Mich App 270.
In re C
OX
(F
AMILY
I
NDEPENDENCE
A
GENCY V
C
OX
), No. 127824; Court of
Appeals No. 255179.
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal March 10, 2005:
S
TOKAN V
H
URON
C
OUNTY
, Nos. 126706, 126707. The clerk is to schedule
oral argument on whether to grant the application or take other
peremptory action permitted by MCR 7.302(G)(l). The parties may file
supplemental briefs, addressing the interpretation of R esolution 23.83,
within 28 days of the date of this order. Court of Appeals Nos. 242645,
243489.
Summary Dispositions March 10, 2005:
R
EID V
C
AVATAIO
, No. 126617. In lieu of granting leave to appeal, the
judgment of the Court of Appeals is vacated, and the case is remanded to
that Court for reconsideration in light of the Supreme Court’s decision in
Kreiner v Fischer and Straub v Collette, 471 Mich 109 (2004). MCR
7.302(G)(1). Court of Appeals No. 244615.
M
C
D
ONNELL V
A
MERICAN
N
ATIONAL
R
ED
C
ROSS
, Nos. 126769, 126770. In
lieu of granting leave to appeal, the June 29, 2004, judgment of the Court
of Appeals is vacated in part, and the case is remanded to that Court for
reconsideration of the issue whether plaintiff stated a cause of action in
ordinary negligence in light of Bryant v Oakpointe Villa Nursing Centre,
Inc, 471 Mich 411 (2004). Court of Appeals Nos. 243320, 245043.
Leave to Appeal Denied March 10, 2005:
P
EOPLE V
D
EJON
J
OHNSON
, No. 126726; Court of Appeals No. 246340.
K
ELLY,
J. I would remand this case for resentencing.
P
EOPLE V
M
C
C
RAY
, No. 126729; Court of Appeals No. 252233.
A
CTIONS ON
A
PPLICATIONS
871
C
AVANAGH
and K
ELLY,
JJ. We would hold this case in abeyance for
Halbert v Michigan, cert gtd 545 US ___; 125 S Ct 823; 160 L Ed 2d 609
(2005).
OIS, I
NC V
I
NDUSTRIAL
Q
UALITY
C
ONTROL
I
NC
, No. 126740; reported
below: 262 Mich App 592.
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal March 11, 2005:
K
ORRI V
N
ORWAY
V
ULCAN
A
REA
S
CHOOLS
, No. 125691. The clerk is to
schedule oral argument on whether to grant the application or take other
peremptory action permitted by MCR 7.302(G)(l). The parties shall
include among the issues to be addressed: (1) whether respondent failed
to provide an annual year-end performance evaluation within the mean-
ing of MCL 38.83a(1), and (2) whether the fact that petitioner was
notified that her employment was terminated, pursuant to MCL 38.83,
affected respondent’s obligation to issue a year-end evaluation under
MCL 38.83a(1). The parties may file supplemental briefs within 28 days
of the date of this order. Court of Appeals No. 238811.
G
RAND
T
RUNK
W
ESTERN
R
AILROAD,
I
NC V
A
UTO
W
AREHOUSING
C
OMPANY
,No.
126609. The clerk is to schedule oral argument on whether to grant the
application or take other peremptory action permitted by MCR
7.302(G)(1). The parties are directed to file supplemental briefs within 28
days of the date of this order addressing whether, as contended by the
dissenting judge in the Court of Appeals, defendant was entitled to have
the trier of fact determine the reasonableness of the settlement amount
allocated to each claim of injury. Reported below: 262 Mich App 345.
P
EOPLE V
C
LEVELAND
W
ILLIAMS
, No. 126956. The clerk is to schedule oral
argument on whether to grant the application or take other peremptory
action permitted by MCR 7.302(G)(1). The parties shall include among
the issues to be addressed whether People v Chavies, 234 Mich App 274
(1999), correctly held that MCL 780.131 does not apply to a defendant
who was on parole at the time of the offense with which the defendant is
charged. The parties may file supplemental briefs within 28 days of the
date of this order. Court of Appeals No. 239662.
Summary Dispositions March 11, 2005:
C
URTIS V
C
ITY OF
D
ETROIT
, No. 125652. The defendant filed an applica-
tion for leave to appeal and the Supreme Court directed that oral
argument be held on whether to grant the application or take other
peremptory action. The briefs and oral argument of the parties having
been considered by the Court, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, the judgment of the Court of Appeals is
reversed, and the case is remanded to the Wayne Circuit Court for entry
of a judgment in favor of defendant. Defendant fully complied with the
notice requirements of the Michigan housing law, MCL 125.540, and the
872 472 M
ICHIGAN
R
EPORTS
Detroit City Code, § 12-11-28. Whether lis pendens or other statutory
notice obligations should be in place is not an issue for this Court. Court
of Appeals No. 241632.
W
EAVER,
J
.
(dissenting). I would deny leave to appeal because the Court
of Appeals properly affirmed the trial court on the issues before us.
C
AVANAGH
and K
ELLY,
JJ. We concur in the statement of Justice W
EAVER.
P
EOPLE V
T
ERRY
W
ILLIS
, No. 125862. In lieu of granting leave to appeal,
the order of the Court of Appeals is vacated, and the case is remanded to
that Court for consideration of defendant’s application for leave to appeal
to that Court. MCR 7.302(G)(1). In the unique circumstances of this case,
the application should not have been dismissed as untimely under MCR
7.205(F)(3). Jurisdiction is not retained. Court of Appeals No. 251839.
T
AYLOR,
C.J. I concur with the Court’s remand order and write
separately to indicate that if the Court of Appeals finds the trial court
violated MCR 6.505(A) by hearing oral argument on defendant’s motion
without appointing counsel to represent defendant at the hearing, then it
should vacate the trial court’s order denying relief from judgment and
require the trial court to issue a new order granting or denying relief
from judgment after complying with MCR 6.505(A).
In re B
ANKS
(F
AMILY
I
NDEPENDENCE
A
GENCY V
B
ANKS
), No. 127292. On
January 13, 2005, the Court heard oral argument on the application for
leave to appeal the September 30, 2004, judgment of the Court of
Appeals. By order of January 31, 2005, 472 Mich 859, the case was
remanded to the St. Clair Circuit Court, Family Division, for its deter-
mination, with regard to each of the two children, whether “there is a
reasonable likelihood that the child will suffer from injury or abuse in the
foreseeable future if placed in [respondent]’s home.” MCL
712A.19b(3)(b)(i). The St. Clair Circuit Court, Family Division, rendered
its decision on February 11, 2005. On order of the Court, in lieu of
granting leave to appeal, the judgment of the Court of Appeals is reversed
and the St. Clair Circuit Court, Family Division, order terminating
respondent’s parental rights to the minor children is reinstated because
the Supreme Court is satisfied with that court’s findings on remand.
MCR 7.302(G)(1). Court of Appeals No. 252617.
T
AYLOR,
C.J., and C
AVANAGH
and K
ELLY,
JJ. We would deny leave to
appeal.
Leave to Appeal Denied March 11, 2005:
In re B
REAULT
(F
AMILY
I
NDEPENDENCE
A
GENCY V
H
UTCHINSON
), No.
128052; Court of Appeals No. 255568.
S
KONIECZNY V
S
KONIECZNY
, No. 128107; Court of Appeals No. 260682.
Appeal Dismissed March 18, 2005:
C
LOUGH V
B
ALLIET
, No. 126122. On order of the Court, on the Court’s
own motion, it appearing that the parties have settled this case, the order
A
CTIONS ON
A
PPLICATIONS
873
of November 4, 2004, 471 Mich 913, granting leave to appeal, is vacated
and the appeal is dismissed as moot. Court of Appeals No. 243090.
Leave to Appeal Denied March 18, 2005:
In re H
ENDERSON
(F
AMILY
I
NDEPENDENCE
A
GENCY V
H
ENDERSON
), No.
128112; Court of Appeals No. 254682.
P
EOPLE V
M
ALIK
, No. 127402; Court of Appeals No. 247222.
W
EAVER,
J. I would grant leave to appeal.
C
ORRIGAN,
J. (dissenting). I would reverse the decision of the Court of
Appeals, which incorrectly concluded that a limited search warrant
impeded the authority of the police to effectuate a lawful arrest or to
detain the occupant of a residence that was subject to a search. Rather,
the proper question was whether the police officer had probable cause to
detain or arrest the defendant’s brother at the time the officer saw the
additional illegal steroids in plain view. I believe that he did.
Defendant was the addressee of a package containing illegal steroids.
When the police effected a controlled delivery to defendant’s address,
defendant’s brother signed for the package, claiming to be defendant.
Before the delivery, the police obtained a search warrant that provided
that officers could enter the home and retrieve the package if it remained
unopened after a reasonable period elapsed.
Two hours later, the police executed the search warrant and located
the package. At that point, the police intended to arrest defendant. Upon
inquiry, the police were told that defendant was located in a back
bedroom. When the police walked toward the back bedroom as directed,
an officer observed the man who had earlier signed for the package, and
claimed to be defendant, walking quickly into a bedroom. Assuming that
the man was defendant, the officer followed the individual into the
bedroom, at which time the officer saw additional contraband in plain
view.
The Court of Appeals affirmed the circuit court order granting
defendant’s motion to suppress the seizure of the additional steroids and
quash the charges against him. The panel held that the police exceeded
the scope of the search warrant that allowed for the search and seizure of
the delivered package only.
The touchstone of Fourth Amendment analysis is reasonableness.
Ohio v Robinette, 519 US 33 (1996). “Fourth Amendment seizures are
‘reasonable’ only if based on probable cause.” Dunaway v New York, 442
US 200, 213 (1979). “Where the standard is probable cause, a search or
seizure of a person must be supported by probable cause particularized
with respect to that person.” Ybarra v Illinois, 444 US 85, 91 (1979).
Consistent with this understanding, MCL 764.15(1)(c) provides that an
officer may make an arrest without a warrant if a felony has been
committed “and the peace officer has reasonable cause to believe the
person committed it.”
Here, the arresting officer had particularized reasonable cause to
effectuate an arrest without a warrant against defendant’s brother.
874 472 M
ICHIGAN
R
EPORTS
Defendant’s brother signed for a package known to contain illegal drugs,
claiming to be the addressee/defendant. Because it is a felony to possess
controlled substances,
1
the officer was statutorily authorized to question
and arrest defendant’s brother with respect to those controlled sub-
stances contained in the delivered package. When executing a valid
arrest, an officer need not shut his eyes to evidence in plain view. See, e.g.,
Arizona v Hicks, 480 US 321, 326 (1987); Maryland v Buie, 494 US 325
(1990).
Moreover, the police officers were justified in detaining the man they
believed to be defendant while the package was retrieved under the terms
of the limited search warrant. As the United States Supreme Court noted
in Michigan v Summers, 452 US 692, 702-703 (1981):
In assessing the justification for the detention of an occupant of
premises being searched for contraband pursuant to a valid
warrant, both the law enforcement interest and the nature of the
“articulable facts” supporting the detention are relevant. Most
obvious is the legitimate law enforcement interest in preventing
flight in the event that incriminating evidence is found. Less
obvious, but sometimes of greater importance, is the interest in
minimizing the risk of harm to the officers.... The risk of harm to
both the police and the occupants is minimized if the officers
routinely exercise unquestioned command of the situation. [Em-
phasis supplied.]
In this situation, I believe the officer appropriately detained the person
believed to be defendant—the person who identified himself as the
addressee of the package of illegal drugs and who signed for possession of
that package. The detention was further warranted to ensure the safety of
the officers retrieving the package under the terms of the search warrant.
Under either of these bases, the officer was lawfully in a position from
which to view the drugs in the bedroom. The Court of Appeals erred in
affirming the lower court’s order suppressing the seized drugs and
quashing defendant’s indictment. I would reverse.
Interlocutory Appeal
Leave to Appeal Denied March 18, 2005:
P
EOPLE V
C
RAIG
B
ROWN
N
O.
1, No. 128143; Court of Appeals No. 259696.
Summary Dispositions March 25, 2005:
P
EOPLE V
H
INDMAN
, No. 125763. In lieu of granting leave to appeal, the
judgment of the Court of Appeals is reversed in part, and the case is
1
MCL 333.7401.
A
CTIONS ON
A
PPLICATIONS
875
remanded to the Saginaw Circuit Court for resentencing on defendant’s
second-degree murder conviction under properly scored sentencing
guidelines. MCR 7.302(G)(1). Offense variable 10 is to be scored at 10
points if the “offender exploited a victim’s physical disability, mental
disability, youth or agedness, or a domestic relationship, or the offender
abused his or her authority status.” MCL 777.40(1)(b) (emphasis added).
However, defendant here was assessed points not on the basis of having
exploited the second-degree murder victim, but on the basis of having
exploited her own children who were merely passengers in her car and
not the victims of the criminal offense being scored. Therefore, the circuit
court erred in scoring offense variable 10, and because defendant raised
this issue at sentencing, she is entitled to resentencing. People v Kimble,
470 Mich 305, 310-311 (2004); MCL 769.34(10). Offense variable 18, at
the time relevant to this action, was to be scored “if an element of the
offense or attempted offense involves the operation of a vehicle....”
MCL 777.22(1). The operation of a vehicle is not an element of second-
degree murder. Therefore, the circuit court erred in scoring offense
variable 18. Kimble, supra at 312; MCL 769.34(10). In addition, in
rescoring the guidelines, the circuit court should consider whether it was
appropriate to score 35 points under offense variable 3, in light of the
applicable language of former MCL 777.33(2)(c). In all other respects,
leave to appeal is denied. Court of Appeals No. 244904.
W
EAVER,
J
.
I dissent from the order remanding for resentencing. I
continue to believe that the plain language of MCL 769.34(10) requires a
defendant to preserve a scoring error by “rais[ing] the issue at sentencing
in a proper motion for resentencing, or in a proper motion to remand filed
in the court of appeals.” See, e.g., People v Kimble, 470 Mich 305 (2004)
(W
EAVER
J
.
, dissenting). Defendant did not preserve her objection to the
scoring of either offense variable 3 or 18 and, thus, cannot now challenge
the scoring of those variables. Moreover, although defendant did object to
the scoring of offense variable 10, even if the objection had been
sustained, the sentence imposed was within the appropriate guidelines
range, making review unnecessary.
To hold that the plain error doctrine may be applied, as a majority did
in People v Kimble, supra at 312, and does implicitly in this case,
undermines the plain language of MCL 769.34(10) that forbids a party to
raise unpreserved scoring errors on appeal.
P
EOPLE V
H
IRMUZ
, No. 128167. In lieu of granting leave to appeal, only
that portion of the order that directed assignment of this case to a
different judge upon remand is vacated. MCR 7.302(G)(1). In all other
respects, leave to appeal is denied. The motion for stay is denied. Court of
Appeals No. 259154.
Leave to Appeal Denied March 25, 2005:
In re D
ILLEY
(F
AMILY
I
NDEPENDENCE
A
GENCY V
W
ARTHAN
), No. 128188;
Court of Appeals No. 256647.
876 472 M
ICHIGAN
R
EPORTS
In re M
ITCHELL
(F
AMILY
I
NDEPENDENCE
A
GENCY V
S
TREETS
), No. 128197;
Court of Appeals No. 256816.
Summary Disposition March 29, 2005:
H
OME
O
WNERS
I
NSURANCE
C
OMPANY V
R
EED
, No. 126821. In lieu of
granting leave to appeal, the case is remanded to the Court of Appeals for
consideration as on leave granted. Farmers Insurance Exchange’s motion
to allow response brief is denied. MCR 7.302(G)(1). Jurisdiction is not
retained. Court of Appeals No. 252979.
Leave to Appeal Denied March 29, 2005:
P
EOPLE V
P
OSTELL
, No. 126406; Court of Appeals No. 245728.
S
LATER V
D
E
W
ITT
C
HARTER
T
OWNSHIP
, No. 126455; Court of Appeals No.
244791.
P
EOPLE V
T
YRONE
M
AHAN
, No. 126484; Court of Appeals No. 246234.
B
ANKSTON
C
ONSTRUCTION,
I
NC V
C
ITY OF
D
ETROIT
, No. 126592; Court of
Appeals No. 241988.
P
EOPLE V
M
UHAMMAD
, No. 126627; Court of Appeals No. 244688.
M
ORGAN V
D
EPARTMENT OF
C
ORRECTIONS
, No. 126766; Court of Appeals
No. 246732.
P
EOPLE V
C
RIDER
, No. 126778; Court of Appeals No. 245900.
P
EOPLE V
S
EEVER
, No. 126779; Court of Appeals No. 245615.
P
EOPLE V
A
NDREW
O
WENS
, No. 126780; Court of Appeals No. 244413.
H
LIFKA V
H
IGGINS
, No. 126798; Court of Appeals No. 244355.
P
EOPLE V
C
UMMINGS
, No. 126808; Court of Appeals No. 244907 (on
reconsideration).
P
EOPLE V
G
OLDY
, No. 126822; Court of Appeals No. 246501.
P
EOPLE V
B
LAYNE
F
IELDS
, No. 126833; Court of Appeals No. 254502.
P
EOPLE V
M
ASHELI
, No. 126861; Court of Appeals No. 247345.
P
EOPLE V
G
LENN
G
REEN
, No. 126866; Court of Appeals No. 247395.
P
EOPLE V
B
REEDING
, No. 126871; Court of Appeals No. 255472.
P
EOPLE V
A
NTONIO
M
ANNING
, No. 126875; Court of Appeals No. 255598.
P
EOPLE V
B
ELVIN
, No. 126889; Court of Appeals No. 248651.
In re H
OGAN
T
RUST
N
O
1(H
OGAN V
H
OGAN
), No. 126891; Court of
Appeals No. 247989.
A
CTIONS ON
A
PPLICATIONS
877
P
EOPLE V
M
ICHAEL
P
ARNELL
, No. 126892; Court of Appeals No. 248236.
In re H
OGAN
T
RUST
N
O
2(S
AWYER V
H
OGAN
), No. 126893; Court of
Appeals No. 242530.
E
CKLER V
H
OWARD
T
OWNSHIP
B
OARD OF
T
RUSTEES
, No. 126902; Court of
Appeals No. 247284.
Q
UEST
F
INANCIAL
S
ERVICES,
I
NC V
K
ITTS
, No. 126921; Court of Appeals
No. 254809.
H
ESSE V
C
HIPPEWA
V
ALLEY
S
CHOOLS
, No. 126925; Court of Appeals No.
244153.
P
EOPLE V
G
OSSARD
, No. 126935; Court of Appeals No. 245180.
P
EOPLE V
R
EGINALD
M
ARTIN
, No. 126938; Court of Appeals No. 247712.
G
ERESY V
D
OMMERT
, No. 126942; Court of Appeals No. 243468.
P
EOPLE V
D
OXEY
, No. 126947; reported below: 263 Mich App 115.
P
EOPLE V
A
LEJANDRO
G
ARDNER
, No. 126961. Defendant’s motion to add
issues is granted. Court of Appeals No. 246707.
P
EOPLE V
T
HOMAS
R
OBERTS
, No. 126962; Court of Appeals No. 246232.
MCA F
INANCIAL
C
ORPORATION V
G
RANT
T
HORNTON,
LLP, No. 126972;
reported below: 263 Mich App 152.
P
EOPLE V
A
LEXANDER
, No. 126976; Court of Appeals No. 248201.
P
EOPLE V
C
ARPENTER
, No. 126988; Court of Appeals No. 247543.
P
EOPLE V
D
UNNE
, No. 126989; Court of Appeals No. 256278.
P
EOPLE V
W
ARLICK
, No. 126992; Court of Appeals No. 247213.
P
EOPLE V
T
AVAR
C
URRY
, No. 126994; Court of Appeals No. 247134.
P
EOPLE V
T
ROY
J
ACKSON
, No. 127000; Court of Appeals No. 249622.
E
GBERT V
E
GBERT
, No. 127005; Court of Appeals No. 254578.
P
EOPLE V
S
TRAYHORN
, No. 127009; Court of Appeals No. 246999.
S
PIEGEL V
F
ORD
M
OTOR
C
OMPANY
, No. 127010; Court of Appeals No.
255250.
P
EOPLE V
J
OHNNY
W
ILLIAMS
, No. 127019; Court of Appeals No. 245267.
MCA F
INANCIAL
C
ORPORATION V
D
YKEMA
G
OSSETT,
PLLC, No. 127020;
Court of Appeals No. 250810.
P
EOPLE V
G
ARCIA
-M
ARCOS
, No. 127028; Court of Appeals No. 255707.
P
EOPLE V
W
HITLEY
, No. 127029; Court of Appeals No. 246218.
P
EOPLE V
M
ATHIS
, No. 127036; Court of Appeals No. 247848.
878 472 M
ICHIGAN
R
EPORTS
P
EOPLE V
S
CHRAM
, No. 127039; Court of Appeals No. 248103.
P
EOPLE V
B
LUE
, No. 127041; Court of Appeals No. 246782.
P
EOPLE V
A
RMSTRONG
, No. 127046; Court of Appeals No. 256714.
G
RANT V
M
ETALLOY
C
ORPORATION
, No. 127052; Court of Appeals No.
255092.
P
EOPLE V
W
HITESIDE
, No. 127053; Court of Appeals No. 255751.
S
TANFORD V
C
ITY OF
D
EARBORN
, No. 127055; Court of Appeals No.
254901.
P
EOPLE V
B
ONNER
, No. 127058; Court of Appeals No. 246783.
P
EOPLE V
B
ENAVIDEZ
, No. 127067; Court of Appeals No. 249415.
P
EOPLE V
S
ANTIAGO
P
EREZ
, No. 127071; Court of Appeals No. 247309.
S
UTTON V
F
IRST
F
EDERAL OF
M
ICHIGAN
, No. 127074; Court of Appeals No.
255770.
P
EOPLE V
V
INCENT
T
ERRELL
, No. 127077; Court of Appeals No. 255327.
P
EOPLE V
W
ILLIE
J
ONES
, No. 127078; Court of Appeals No. 253720.
P
EOPLE V
H
ENRY
S
IMPSON
, No. 127085; Court of Appeals No. 256640.
P
EOPLE V
T
YSON
, No. 127087; Court of Appeals No. 255939.
P
EOPLE V
B
RENDON
W
ALKER
, No. 127096; Court of Appeals No. 246634.
P
EOPLE V
P
HIPPS
, No. 127098; Court of Appeals No. 256433.
W
ERTH V
D
EPARTMENT OF
C
ORRECTIONS
, No. 127105; Court of Appeals No.
256246.
P
EOPLE V
J
AJUAN
D
AVIS
, No. 127108; Court of Appeals No. 248546.
P
EOPLE V
V
IRGIL
, No. 127120; Court of Appeals No. 247850.
P
EOPLE V
C
HAMBERS
, Nos. 127121-127125; Court of Appeals Nos.
255266, 255305-255308.
P
EOPLE V
Z
SIROS
, No. 127126; Court of Appeals No. 256158.
P
EOPLE V
T
ALLEY
, No. 127140; Court of Appeals No. 253655.
P
EOPLE V
W
OODROW
G
ARNER
, No. 127172; Court of Appeals No. 256375.
P
EOPLE V
P
EOPLES
, No. 127181; Court of Appeals No. 248155.
P
EOPLE V
G
RAVES
, No. 127234; Court of Appeals No. 247651.
P
EOPLE V
F
EW
, No. 127262; Court of Appeals No. 247650.
P
EOPLE V
H
EMP
, No. 127433; Court of Appeals No. 247716.
A
CTIONS ON
A
PPLICATIONS
879
R
OCCA V
C
HILDREN’S
H
OSPITAL OF
M
ICHIGAN
, No. 127618; Court of Appeals
No. 258500.
P
EOPLE V
M
AYBERRY
, No. 127954. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 257136.
P
EOPLE V
L
E
D
UC
, No. 127955; Court of Appeals No. 256968.
Interlocutory Appeal
Leave to Appeal Denied March 29, 2005:
H
ATTERY V
G
RUCA
, No. 126900; Court of Appeals No. 246755.
Reconsideration Denied March 29, 2005:
H
ASTINGS
M
UTUAL
I
NSURANCE
C
OV
R
UNDELL
, No. 124284. Leave to appeal
denied at 471 Mich 938. Court of Appeals No. 238549.
P
EOPLE V
K
ENNETH
W
ALKER
, No. 126035. Leave to appeal denied at 471
Mich 935. Court of Appeals No. 253636.
K
ELLY
, J. I would grant reconsideration and, on reconsideration, would
remand this case to the Court of Appeals to consider whether defendant
was entitled to resentencing.
P
EOPLE V
K
INDRED
, No. 126086. Leave to appeal denied at 471 Mich
945. Court of Appeals No. 249730.
N
IELSEN V
P
ALLISCO
, No. 126159. Leave to appeal denied at 471 Mich
920. Court of Appeals No. 250535.
P
EOPLE V
R
ITCHIE
, No. 126243. Leave to appeal denied at 471 Mich
946. Court of Appeals No. 247490.
O
IL
C
APITAL
R
ACE
V
ENTURE,
I
NC V
H
UNTER
, No. 126287. Leave to appeal
denied at 471 Mich 936. Court of Appeals No. 244132.
P
EOPLE V
W
ILBURN
S
TEWART
, No. 126324. Leave to appeal denied at 471
Mich 947. Court of Appeals No. 253810.
P
EOPLE V
M
C
C
ANN
N
O
1, No. 126345. Leave to appeal denied at 471
Mich 947. Court of Appeals No. 253937.
A
MERICAN
B
UMPER &
M
ANUFACTURING
C
OMPANY V
N
ATIONAL
U
NION
F
IRE
I
NSURANCE
C
OMPANY OF
P
ITTSBURGH,
PA, Nos. 126364, 126365. Leave to
appeal denied at 471 Mich 948. Reported below: 261 Mich App 367.
M
ARKMAN
, J., not participating.
P
EOPLE V
K
ENNETH
C
URRY
, No. 126376. Leave to appeal denied at 471
Mich 948. Court of Appeals No. 252884.
880 472 M
ICHIGAN
R
EPORTS
P
EOPLE V
S
AMUEL
N
EAL
, No. 126396. Leave to appeal denied at 471 Mich
948. Court of Appeals No. 254580.
P
EOPLE V
B
ARHITE
, No. 126398. Leave to appeal denied at 471 Mich
921. Court of Appeals No. 237890.
S
ARR V
S
COTT
AS
MITH,
PC, No. 126426. Leave to appeal denied at 471
Mich 949. Court of Appeals No. 242395.
P
EOPLE V
K
ARL
L
ITTLE
, No. 126715. Leave to appeal denied at 471 Mich
954. Court of Appeals No. 253818.
O
PTION
O
NE
M
ORTGAGE
C
ORPORATION V
U
RSERY
, No. 127318. Leave to
appeal denied at 471 Mich 958. Court of Appeals No. 257844.
K
ELLY
, J. I would grant reconsideration and, on reconsideration, would
remand this case to the Court of Appeals for consideration as on leave
granted.
Leave to Appeal Granted March 31, 2005:
P
RUCHNO V
P
RUCHNO
, No. 126858. The case is to be argued and
submitted to the Court with Sweebe v Sweebe Estate, No. 126913. The
Elder Law, Family Law, and Probate & Estate Planning sections of the
State Bar of Michigan are invited to file briefs amicus curiae. Other
persons or groups interested in the determination of the questions
presented in this case may move the Court for permission to file briefs
amicus curiae. Court of Appeals No. 245583.
S
WEEBE V
S
WEEBE
E
STATE
, No. 126913. The case is to be argued and
submitted to the Court with Pruchno v Pruchno, No. 126858. The Elder
Law, Family Law, and Probate & Estate Planning sections of the State
Bar of Michigan are invited to file briefs amicus curiae. Other persons or
groups interested in the determination of the questions presented in this
case may move the Court for permission to file briefs amicus curiae.
Court of Appeals No. 253520.
P
EOPLE V
D
ROHAN
, No. 127489. The issue is limited to whether Blakely
v Washington, 542 US 296 (2004), and United States v Booker, 543 US
___; 125 S Ct 738; 160 L Ed 2d 621 (2005), apply to Michigan’s sentencing
scheme. See People v Claypool, 470 Mich 715, 730 n 14 (2004). The
Prosecuting Attorneys Association of Michigan and the Criminal Defense
Attorneys of Michigan are invited to file briefs amicus curiae. Other
persons or groups interested in the determination of the question
presented in this case may move the Court for permission to file briefs
amicus curiae. Reported below: 264 Mich App 77.
Summary Dispositions March 31, 2005:
P
EOPLE V
L
ABELLE
, No. 127687. In lieu of granting leave to appeal, the
case is remanded to the Court of Appeals for consideration as on leave
granted. MCR 7.302(G)(1). The parties are also directed to address the
A
CTIONS ON
A
PPLICATIONS
881
issue whether defendant, a passenger, had standing to object to the traffic
stop or the subsequent search of the vehicle after the driver consented.
Court of Appeals No. 258986.
M
AC
I
NTYRE V
M
AC
I
NTYRE
, No. 127963. In lieu of granting leave to
appeal, the judgment of the Court of Appeals is reversed in part. MCL
600.5080(2) requires a “review” of the child custody decision. MCR
7.302(G)(1). The parties’ agreements may not waive the availability of
an evidentiary hearing if the circuit court determines that a hearing is
necessary to exercise its independent duty under the Child Custody Act,
MCL 722.25. But as long as the circuit court is able to “determine
independently what custodial placement is in the best interests of the
children[,]” Harvey v Harvey, 470 Mich 186, 187 (2004), an evidentiary
hearing is not required in all cases. In this case, the Oakland Circuit
Court was able to make such an independent determination without a
hearing. The case is remanded to the Court of Appeals for consideration
of the remaining issues on appeal. R eported below: 264 Mich App 690.
Leave to Appeal Denied March 31, 2005:
P
EOPLE V
C
RIPPEN
, No. 126440; Court of Appeals No. 246724.
C
AVANAGH
and K
ELLY
, JJ. We would grant leave to appeal.
P
EOPLE V
S
ULLIVAN
B
ROWN
, No. 126647; Court of Appeals No. 237027
(on remand).
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
K
AHIL
G
REEN
, No. 126717; Court of Appeals No. 246802.
P
EOPLE V
O
RICK
, No. 126718; Court of Appeals No. 246801.
C
AVANAGH
,K
ELLY,
and M
ARKMAN
, JJ. We would grant leave to appeal.
P
EOPLE V
A
L
-T
IMIMI
, No. 126725; Court of Appeals No. 245211.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
D
UVERNEY V
B
IG
C
REEK
M
ENTOR
U
TILITY
A
UTHORITY
, No. 126757; Court of
Appeals No. 243866.
W
EAVER,
K
ELLY,
and M
ARKMAN,
JJ. We would grant leave to appeal.
A
TTORNEY
G
ENERAL V
P
UBLIC
S
ERVICE
C
OMMISSION
, No. 126800; reported
below: 262 Mich App 649.
C
AVANAGH
, J. I would grant leave to appeal.
P
EOPLE V
M
C
P
HERSON
, No. 126804; reported below: 263 Mich App 124.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
P
EOPLE V
M
C
G
EE
, No. 126851; Court of Appeals No. 248710.
P
EOPLE V
S
TIFF
, No. 127063; Court of Appeals No. 247827.
P
EOPLE V
J
ENSEN
, No. 127689; Court of Appeals No. 235372 (on
reconsideration).
882 472 M
ICHIGAN
R
EPORTS
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal April 1, 2005:
M
ICK V
L
AKE
O
RION
C
OMMUNITY
S
CHOOLS
and M
ICK V
B
ASS
, Nos. 126547,
126548. Pursuant to MCR 7.302(G)(l), the clerk is to schedule oral
argument on whether to grant the application or take other peremptory
action permitted by MCR 7.302(G)(l). The parties shall be prepared to
address whether the plaintiff has shown a materially adverse employ-
ment action to sustain his retaliation claim. They may file supplemental
briefs within 28 days of the date of this order. The application for leave to
appeal remains pending. Court of Appeals Nos. 241121, 241122.
D
EYO V
D
EYO
, No. 126795. Pursuant to MCR 7.302(G)(l), the clerk is to
schedule oral argument on whether to grant the application or take other
peremptory action permitted by MCR 7.302(G)(l). The parties shall
include among the issues to be addressed whether the Court of Appeals
erred in its finding that the defendant “contributed to the acquisition,
improvement, or accumulation of the property.” MCL 552.401. See Dart
v Dart, 460 Mich 573 (1999), and Reeves v Reeves, 226 Mich App 490
(1997). The parties may file supplemental briefs within 28 days of the
date of this order. Court of Appeals No. 245210.
Summary Disposition April 1, 2005:
D
EVAULT
E
STATE V
P
ORNPICHIT
, No. 126714. In lieu of granting leave to
appeal, the Wayne Circuit Court’s June 17, 2004, oral opinion and the
June 18, 2004, order are vacated, and the case is remanded to that court
for further consideration. MCR 7.302(G)(1). The court is to issue findings
of fact and conclusions of law on the admissibility of the testimony of
Michael Brazil, D.O., consistent with the requirements of MRE 702 and
MCL 600.2955. Craig v Oakwood Hosp, 471 Mich 67 (2004); Gilbert v
DaimlerChrysler Corp, 470 Mich 749 (2004). The court shall provide a
copy of its decision to this Court within 45 days of this order. Jurisdiction
is retained. Court of Appeals No. 256163.
Leave to Appeal Denied April 1, 2005:
B
ARNES V
V
ETTRAINO
, No. 123661, 5/December 2004. On order of the
Court, leave to appeal having been granted and the Court having
considered the briefs and oral arguments of the parties, the order of
July 15, 2004, 470 Mich 894, that granted leave to appeal, is vacated and
leave to appeal is denied, because the Court is no longer persuaded the
questions presented should be reviewed by this Court. If plaintiffs do
prevail, they should be allowed to recover those damages that are
common to medical malpractice actions, but not those damages that are
a function of the destruction of the fetus, because an award of the latter
type of damages would be violative of Michigan’s clear public policy
against abortions. People v Bricker, 389 Mich 524, 529 (1973), constru-
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CTIONS ON
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883
ing Roe v Wade, 410 US 113 (1973). Plaintiffs’ motion to allow an
amended statement of facts is denied as moot. Court of Appeals No.
235357.
C
AVANAGH,
J
.(
concurring). Because I do not find it contrary to public
policy that we should allow enforcement of liability against negligent
health care professionals in cases such as this, I concur that leave was
improvidently granted and should be denied.
K
ELLY,
J
.
I join the statement of Justice C
AVANAGH.
Reconsideration Denied April 1, 2005:
In re R
OGERS
(F
AMILY
I
NDEPENDENCE
A
GENCY V
A
GUIRRE
), No. 127821.
Leave to appeal denied at 472 Mich 868. Court of Appeals No. 255479.
Leave to Appeal Granted April 7, 2005:
P
EOPLE V
N
ICHOLAS
J
ACKSON
, 125250. The parties are to include among
the issues addressed: (1) whether the admission of the oral and written
statements made by Anthony Leroy Hines to the police was error in light
of Crawford v Washington, 541 US 36 (2004), and, if so, whether
Crawford should be applied retroactively; (2) whether the trial court
erred when it applied the rape-shield statute, MCL 750.520j, and denied
defendant an opportunity to present testimony regarding his allegations
that the complainant had made a prior false allegation of sexual abuse
against a different individual (see People v Hackett, 421 Mich 338 [1984]);
(3) whether alleged prior false allegations constitute “specific instances of
the victim’s sexual conduct” as contemplated by the rape-shield statute;
(4) what procedural and evidentiary requirements must be met to prove
that the allegations are false and for their admission as evidence at trial;
and (5) if the trial court did err in excluding or admitting evidence,
whether any evidentiary or constitutional errors were harmless. See
People v Carines, 460 Mich 750 (1999). The Criminal Defense Attorneys
of Michigan and the Prosecuting Attorneys Association of Michigan are
invited to file briefs amicus curiae. Other persons or groups interested in
the determination of the questions presented in this case may move the
Court for permission to file briefs amicus curiae. Court of Appeals No.
242050.
Summary Dispositions April 7, 2005:
P
EOPLE V
C
AGLE
, No. 126207. In lieu of granting leave to appeal, the
case is remanded to the Oakland Circuit Court for a hearing to determine
whether defendant received ineffective assistance of counsel. People v
Ginther, 390 Mich 436 (1973). MCR 7.302(G)(1). Defendant was charged
with and pleaded no contest in 1992 to six counts of first-degree criminal
sexual conduct based on alleged acts committed between June 1979 and
November 1981. At the time defendant entered his plea, the charges
against him were barred by the six-year period of limitations of MCL
767.24 in effect at the time the crimes were allegedly committed. The
884 472 M
ICHIGAN
R
EPORTS
circuit court shall determine whether defendant was informed by his
counsel of the expiration of the period of limitations on the charges
brought against him and whether defendant indicated that he wished to
waive this defense. If the circuit court determines that defendant was not
so informed and did not knowingly waive the defense, the court shall
vacate defendant’s convictions. Defendant’s other pending motions are
denied as moot. Court of Appeals No. 252838.
L
ENTINI V
U
RBANCIC
, No. 126489. In lieu of granting leave to appeal, the
judgment of the Court of Appeals is vacated, and the case is remanded to
that Court for reconsideration in light of WaltzvWyse, 469 Mich 642
(2004). MCR 7.302(G)(1). Court of Appeals No. 246323.
N
GUYEN V
P
ROFESSIONAL
C
ODE
I
NSPECTIONS OF
M
ICHIGAN,
I
NC,
No.
126901. In lieu of granting leave to appeal, that portion of the Court of
Appeals opinion remanding this matter for trial with regard to defendant
Dan Johnson is reversed. MCR 7.302(G)(1). No reasonable juror could
conclude that defendant’s conduct amounted to reckless conduct showing
a substantial lack of concern whether damage or injury would result.
Stanton v Battle Creek, 466 Mich 611, 620-621 (2002); Jackson v Saginaw
Co, 458 Mich 141, 146 (1998). Thus, plaintiff has failed to demonstrate
that defendant’s conduct constitutes gross negligence under MCL
691.1407(2)(c). Defendant’s actions in issuing a stop work order were
based on his duty as an assistant city manager to enforce a presumptively
valid city ordinance and an approved variance to that ordinance. That it
was later determined that the language of the approved minutes of the
zoning board of appeals meeting at which the variance was approved was
erroneous does not strip defendant of immunity. Moreover, defendant’s
conduct does not meet the test of being the proximate cause of plaintiff’s
alleged damages. See Robinson v Detroit, 462 Mich 439 (2000). In all
other respects, leave to appeal is denied. Court of Appeals No. 247584.
Leave to Appeal Denied April 7, 2005:
W
OLFE V
D
EPARTMENT OF
T
RANSPORTATION,
M
ILES V
D
EPARTMENT OF
T
RANS-
PORTATION,
L
AMBERT V
D
EPARTMENT OF
T
RANSPORTATION
, and M
C
C
REARY V
D
EPARTMENT OF
T
RANSPORTATION
, Nos. 126612-126615; Court of Appeals
Nos. 245546-245549.
C
AVANAGH
and K
ELLY
, JJ. We would grant leave to appeal.
C
LAY
T
OWNSHIP V
M
ONTVILLE
, No. 126658; Court of Appeals No. 248293.
M
ILLER V
L
ORD
, No. 126768; Court of Appeals No. 246448.
C
AVANAGH,
W
EAVER,
and K
ELLY,
JJ. We would grant leave to appeal.
P
EOPLE V
W
ARE
, No. 126782; Court of Appeals No. 247142.
C
AVANAGH
and K
ELLY
, JJ. We would grant leave to appeal.
P
EOPLE V
N
ATHANIEL
M
ITCHELL
, No. 126825; Court of Appeals No.
248654.
C
AVANAGH
and K
ELLY
, JJ. We would grant leave to appeal.
A
CTIONS ON
A
PPLICATIONS
885
S
INACOLA V
L
ELAND
T
OWNSHIP
, No. 127636; Court of Appeals No.
252107.
Interlocutory Appeal
Leave to Appeal Denied April 7, 2005:
P
EOPLE V
C
HAHINE
, No. 128332; Court of Appeals No. 260932.
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal April 8, 2005:
In re V
AN
C
ONETT
E
STATE
(R
AU V
L
EIDLEIN),
N
O.
126758. Pursuant to
MCR 7.302(G)(l), the clerk is to schedule oral argument on whether to
grant the application or take other peremptory action permitted by MCR
7.302(G)(l). The parties shall include among the issues to be addressed
whether: (1) Herbert VanConett’s mutual will was revocable, and (2) if
his mutual will was revocable, the contract to make a will between
Herbert and Ila VanConett became specifically enforceable upon Ila’s
death as to jointly held property passing to Herbert VanConett by
operation of law upon Ila VanConett’s death. They may file supplemental
briefs within 28 days of the date of this order. The application for leave to
appeal remains pending. Court of Appeals No. 247516.
Leave to Appeal Denied April 8, 2005:
B
EN
D
REW
C
OMPANY,
LLC v O
NTWA
T
OWNSHIP
, No. 124431; Court of
Appeals No. 248286.
W
EAVER
, J. I dissent from the denial of leave in this case. I would
vacate the Court of Appeals June 9, 2003, order, which dismissed the
complaint as “wholly insufficient,” and remand the case to the Court of
Appeals for further proceedings. Plaintiff’s claim was not “wholly insuf-
ficient.” Rather, plaintiff has already established that a colorable claim
exists by pleading specific facts in support of its claim that defendant
violated Const 1963, art 9, § 31, and offering supporting documentation.
Therefore, I would vacate the Court of Appeals order and remand the
case to that Court for further proceedings on plaintiff’s complaint.
K
ELLY
, J. I join the statement of Justice W
EAVER.
V
ERIZON
N
ORTH,
I
NC V
P
UBLIC
S
ERVICE
C
OMMISSION
, No. 125728; Court of
Appeals No. 241340.
M
ARKMAN
, J. I respectfully dissent and would grant appellants’ appli-
cation for leave to appeal. This case addresses the question of how much
deference is due an administrative agency in its interpretation of a
statute within its purview. The Public Service Commission here deter-
mined that MCL 484.2310(2), which states that a carrier cannot charge
a rate for intrastate services that is greater than it is authorized to charge
886 472 M
ICHIGAN
R
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for interstate services, should take precedence over MCL 484.2102(y),
which defines an inadequate rate as one “less than the total service long
run incremental cost of providing the service.” I would grant leave in
order to better understand how a rate can be adjudged “reasonable”
where a carrier has been denied the ability to recoup the costs of its
services.
I would consolidate this case with Ameritech v Pub Service Comm,
Docket No. 126676.
P
EOPLE V
G
ATSKI
, No. 125740; reported below: 260 Mich App 360.
W
EAVER
and M
ARKMAN,
JJ., concur; Y
OUNG,
J
.
, concurs in a separate
statement; C
ORRIGAN,
J
.
, joins the statement of Y
OUNG,
J
.;
T
AYLOR,
C.J .,
dissents; and C
AVANAGH
and K
ELLY,
JJ., concur in the result only of T
AYLOR,
C.J .
Y
OUNG,
J
.
I concur in the majority’s decision to deny the application for
leave to appeal because I believe that defendant was properly prosecuted
under MCL 324.73102(1). However, like Chief Justice T
AYLOR
, I believe
that the Court of Appeals method of construing § 73102—most notably,
its invocation of the “absurd results” doctrine—was erroneous. See
People v McIntire, 461 Mich 147 (1999).
C
ORRIGAN,
J
.
I join the statement of Justice Y
OUNG.
T
AYLOR,
C.J. I dissent from this Court’s order denying defendant’s
application for leave to appeal. I would reverse the published opinion of
the Court of Appeals because it deviated from well-established rules of
statutory construction and misconstrued the recreational trespass stat-
ute. MCL 324.73102(1).
Defendant was fishing within the clearly defined banks of the Grand
River near the Webber Dam in Lyons Township in Ionia County when he
was given a citation for violating MCL 324.73102(1). The dam is owned
and operated by Consumers Energy, and the dam grating was surrounded
by “no trespassing” signs strung on a guide cable across the river.
At issue is whether defendant came within an exception to the
recreational trespass statute found in § 73102(3). This subsection pro-
vides:
On fenced or posted property or farm property, a fisherman
wading or floating a navigable public stream may, without written
or oral consent, enter upon property within the clearly defined
banks of the stream or, without damaging farm products, walk a
route as closely proximate to the clearly defined bank as possible
when necessary to avoid a natural or artificial hazard or obstruc-
tion, including, but not limited to, a dam, deep hole, or a fence or
other exercise of ownership by the riparian owner.
The question involving statutory interpretation is whether the “when
necessary to avoid a natural or artificial hazard or obstruction” language
applies only to walking along adjacent land or also to entering on
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CTIONS ON
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887
property within the banks. The grating for the dam was within the banks,
but there was no indication that defendant needed to go on it to avoid an
obstruction.
The Court of Appeals stated:
The focal point in the language of subsection 73102(3) is the
use of the disjunctive “or” after the word “stream” in the first part
of the provision. It is well-established that the word “or” is often
misused in statutes and it gives rise to an ambiguity in the statute
because it can be read as meaning either “and” or “or.” Generally,
“or” is a disjunctive term, but the popular use of the word is
frequently inaccurate and this misuse has infected statutory
enactments. Their literal meanings should be followed if they do
not render the statute dubious, but one will be read in place of the
other if necessary to put the meaning in proper context.
We conclude that subsection 73102(3) is not well drafted, and
the particular use of the word “or” and placement of commas in
the text could lead reasonable minds to differ with respect to
whether the provision creates the different types of exceptions
that the parties assert....
***
. . . Defendant’s proposed construction would expand this
subsection to absurdly create an unlimited right to enter property
located within the banks of a river for any reason. Such a proposed
construction would not accurately represent the legislative intent
behind the statute and would render the latter portion of the
subsection nugatory. Thus, we conclude that subsection 73102(3)
provides an exception to the general trespass rule to allow a
fisherman engaged in recreational activity to enter upon posted
property only to avoid a natural or artificial hazard or an obstruc-
tion in the water.
Therefore, unless defendant can prove that it was necessary for
him to enter onto the grating to avoid a natural or artificial hazard
or obstruction, he would not be excused from otherwise violating
subsection 1 of MCL 324.73102. [260 Mich App 360, 365-368
(2004) (citations omitted).]
The Court of Appeals analysis is flawed in several respects. First, the
Court of Appeals read “or” as if it said “and” because it believed the
statute was inartfully drafted. The Court of Appeals stated: “Generally,
‘or’ is a disjunctive term, but the popular use of the word is frequently
inaccurate and this misuse has infected statutory enactments.” Id.at
365.
Given that the statute makes sense when “or” is read in the
disjunctive, the Court of Appeals had no ground to read “or” as if it said
888 472 M
ICHIGAN
R
EPORTS
“and.” In reviewing a statute, if its language is clear, we must conclude
that the Legislature intended the meaning expressed, and the statute is
enforced as written. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27
(1995). The Court of Appeals also rejected defendant’s construction of the
statute because it would absurdly create an unlimited right to enter
property located within the banks of a river for any reason. Our judiciary
is not free to engage in judicial legislation or to otherwise save the
citizenry from the actions of its duly elected legislators. See, e.g., People
v Borchard-Ruhland, 460 Mich 278 (1999); Perez v Keeler Brass Co, 461
Mich 602 (2000). This Court has repudiated nontextual modes of inter-
pretation such as the so-called “absurd result” doctrine of avoiding the
text of a statute when judges view the result as absurd or unjust. People
v McIntire, 461 Mich 147, 153 (1999). In McIntire we said that such
attempts to divine unexpressed and nontextual legislative intent is
“ ‘nothing but an invitation to judicial lawmaking.’ ” Id. at 155 n 2
(citation omitted).
I believe § 73102(3) is correctly read as follows:
On fenced or posted property or farm property, a fisherman
wading or floating a navigable public stream may, without written
or oral consent, [1] enter upon property within the clearly defined
banks of the stream or, [2] without damaging farm products, walk
a route as closely proximate to the clearly defined bank as possible
when necessary to avoid a natural or artificial hazard or obstruc-
tion, including, but not limited to, a dam, deep hole, or a fence or
other exercise of ownership by the riparian owner.
When the word “or” in § 73102(3) is read in the disjunctive, as it
should be, it is apparent that § 73102(3) has two exceptions. The first
exception is when a fisherman is between the clearly defined banks of the
river below the high-water line, and the second allows a fisherman to go
outside the banks of the river to get around an obstacle. Given that
defendant was standing within the clearly defined banks of the river, he
came within the first exception. Accordingly, he was not in violation of
the criminal trespass statute.
Both of the exceptions recognized in § 73102(3) are consistent with
the rights of fishermen under Michigan law as supported by Collins v
Gerhardt, 237 Mich 38, 48-49 (1926). The exceptions recognized in §
73102(3) do not afford Michigan fishermen an unlimited right as the
Court of Appeals speculated; rather the exceptions allow fishermen to
fish the navigable waters of Michigan. Riparian rights are generally
subordinate to the rights of the public to take fish. Attorney General ex rel
Director of Conservation v Taggart, 306 Mich 432 (1943).
The Court of Appeals was concerned that the construction of the
statute I have set forth would allow fishermen too many rights because it
would create an unlimited right to enter property located within the
banks of a river for any reason. This is at best an argument that the
Legislature should amend the statute to restrict the rights of fishermen.
It is well established that we will not inquire into the wisdom of its
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CTIONS ON
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889
legislation. Council of Orgs & Others for Ed About Parochiaid v Gover-
nor, 455 Mich 557, 564 n 7 (1997); Nummer v Dep’t of Treasury, 448 Mich
534, 553 n 22 (1995). Moreover, arguments that a statute is “unwise or
results in bad policy should be addressed to the Legislature.” People v
Kirby, 440 Mich 485, 493-494 (1992).
Thus, I would reverse the judgment of the Court of Appeals because
it failed to follow the plain words of the statute and improperly consid-
ered absurd results in interpreting the statute.
C
AVANAGH
and K
ELLY,
JJ. We concur in the result only of the statement
of Chief Justice T
AYLOR
.
P
EOPLE V
B
URRIS
, No. 126655; Court of Appeals No. 255158.
Interlocutory Appeal
Leave to Appeal Denied April 8, 2005:
A
MERITECH
M
ICHIGAN V
P
UBLIC
S
ERVICE
C
OMMISSION
, No. 126676; Court of
Appeals No. 244742.
T
AYLOR,
C.J. I would grant leave to appeal.
M
ARKMAN,
J
.
I respectfully dissent and would grant appellant’s
application for leave to appeal. This case addresses the question of how
much deference is due an administrative agency in its interpretation of
a statute within its purview. The Public Service Commission here
determined that appellant’s mistaken diagnosis that a customer’s
phone was not working was attributable to wiring inside the customer’s
home, rather than to wiring outside the home, constituted a “false,
misleading or deceptive” statement within the meaning of MCL
484.2502(1)(a), and imposed fines upon petitioner in excess of
$30,000. Because there is little in this provision that implicates the
expertise of the PSC, and because I believe the PSC may have abused its
discretion by its interpretation, I would grant leave to further assess the
point at which judicial deference to the determination of an adminis-
trative agency must give way to ensuring that the laws of this state are
correctly construed.
I would consolidate this case with Verizon v Pub Service Comm,
Docket No. 125728.
Leave to Appeal Denied April 14, 2005:
P
EOPLE V
C
OOPER
, No. 126621; Court of Appeals No. 246330.
C
AVANAGH
, J. I would grant leave to appeal.
P
EOPLE V
A
LVERNO
E
VANS
, No. 126789; Court of Appeals No. 246944.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
H
ULCE
, No. 126815; Court of Appeals No. 255303.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
890 472 M
ICHIGAN
R
EPORTS
In re T
ARLEA
E
STATE
(T
ARLEA V
C
RABTREE
), No. 126854; reported below:
263 Mich App 80.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
P
EOPLE V
B
OSTICK
, No. 126918; Court of Appeals No. 254581.
P
EOPLE V
T
RUAX
, No. 126941; Court of Appeals No. 255679.
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal April 15, 2005:
B
ARRETT V
M
T
B
RIGHTON,
I
NC
, No. 126544. Pursuant to MCR
7.302(G)(1), the clerk is to schedule oral argument on whether to grant
the application or take other peremptory action permitted by MCR
7.302(G)(1). The parties shall include among the issues to be addressed at
oral argument: (1) In the facts of this case, was the snowboard rail a
danger that inheres in the sport of skiing that was “obvious and
necessary” within the meaning of MCL 408.342(2)? (2) In considering
whether there are obvious and necessary dangers, is it appropriate to
consider the various types of skiing (e.g., traditional downhill skiing,
snowboarding, and so forth)? (3) Did MCL 408.326a(d) obligate defen-
dant to mark the top or entrance of the subject ski slope as being closed
to all but those who were snowboarders? (4) Did MCL 408.326a(c)
obligate defendant to mark the top or entrance of the subject ski slope as
being “most difficult”? (5) Did MCL 408.326a(e) obligate defendant to
maintain a trail board in the ski area labeling the subject ski slope as
“most difficult”? (6) Are items (4) and (5) properly preserved for this
Court’s review? The parties may file supplemental briefs within 28 days
of the date of this order. The application for leave to appeal remains
pending. Court of Appeals No. 222777.
F
AMILIES
A
GAINST
I
NCINERATOR
R
ISK V
W
ASHTENAW
C
OUNTY
C
LERK
, No.
126867. Pursuant to MCR 7.302(G)(1), the clerk is to schedule oral
argument on whether to grant the application or take other peremptory
action permitted by MCR 7.302(G)(1). The parties shall include among
the issues to be briefed: (1) whether, in light of the provision in MCL
168.954 that “[e]ach signer of the petition shall affix his signature,
address, and the date of signing,” the Court of Appeals erred in
concluding that if a “signature matches the voter registration card, the
clerk may not invalidate an otherwise valid signature on the basis that
the handwriting in the address and date column was determined not to be
that of the signer”; and (2) by what authority and to what extent may a
court preclude a clerk from engaging in handwriting analysis to prevent
fraud. The parties shall file supplemental briefs within 28 days of the
date of this order. The Elections Division of the Michigan Department of
State, the Michigan Republican Party, and the Michigan Democratic
Party are invited to file briefs amicus curiae. Other persons or groups
interested in the determination of the questions presented in this case
may move the Court for permission to file briefs amicus curiae. Court of
Appeals No. 245319.
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CTIONS ON
A
PPLICATIONS
891
H
ARRIS V
R
AHMAN
, No. 126922. Pursuant to MCR 7.302(G)(1), the clerk
is to schedule oral argument on whether to grant the application or take
other peremptory action permitted by MCR 7.302(G)(1). The parties shall
include among the issues to be addressed at oral argument: (1) Can
plaintiff prevail if she did not present documentary evidence that
defendant knew the quantity of mercury involved when he first spoke
with plaintiff on the telephone, or that defendant’s statements directly
contradicted the advice of the Poison Control Center? (2) Could a
reasonable juror conclude that defendant’s conduct amounted to reckless
conduct showing a substantial lack of concern regarding whether injury
would result? (3) If so, do defendant’s actions constitute “the” proximate
cause of the injuries in this case as required by MCL 691.1407(2)(c)? See
Robinson v Detroit, 462 Mich 439 (2000). The parties may file supple-
mental briefs within 28 days of the date of this order. The application for
leave to appeal remains pending. Court of Appeals No. 247253.
Summary Disposition April 15, 2005:
B
ISCAYNE
C
ORNER
D
ELI &
B
AKERY
E
AST,
LLCvMCO
FFICE
I
NVESTMENTS,
LLC, No. 126716. In lieu of granting leave to appeal, the judgment of the
Court of Appeals is reversed, and the case is remanded to the Wayne
Circuit Court for further proceedings. MCR 7.302(G)(1). Plaintiff’s
deposition testimony created a genuine issue of material fact on the
question whether the heating or cooling was inadequate for 48 continu-
ous hours or more. Court of Appeals No. 246743.
Leave to Appeal Denied April 15, 2005:
A
YAR V
F
OODLAND
D
ISTRIBUTORS
, No. 126654; Court of Appeals No.
242603.
Interlocutory Appeal
Leave to Appeal Denied April 20, 2005:
L
A
P
ORTE V
W
ILLIAM
B
EAUMONT
H
OSPITAL
, No. 128434; Court of Appeals
No. 260461.
K
ELLY,
J
.(
concurring). I agree with the order. I am confident that the
trial judge, an experienced and respected jurist, will strive to rule in this
case fairly and without bias, just as this Court should do.
Y
OUNG,
J. (concurring). Because this matter is interlocutory, I concur
in the denial. In Craig v Oakwood Hosp, 471 Mich 67 (2004), and Gilbert
v DaimlerChrysler Corp, 470 Mich 749 (2004), this Court clearly set forth
the role of the trial judge under MRE 702 and MCL 600.2955 to act as a
gatekeeper to ensure that each aspect of an expert witness’s proffered
testimony—including the data underlying the expert’s theories and the
methodology by which the expert draws conclusions from that data—is
892 472 M
ICHIGAN
R
EPORTS
reliable. If, after the trial in this case, there is an application for leave to
appeal establishing that the Oakland Circuit Court failed to adequately
perform its role as a gatekeeper, these gatekeeping principles will be
enforced.
Leave to Appeal Denied April 22, 2005:
H
ALEY V
C
ALHOUN
C
OUNTY
C
LERK
, Nos. 128353, 128354; Court of
Appeals Nos. 261365, 261398.
K
ELLY
, J. I would grant leave to appeal.
Leave to Appeal Denied April 26, 2005:
P
EOPLE V
S
WIATKOWSKI
, No. 126580; Court of Appeals No. 241754.
P
EOPLE V
J
OSEPH
H
ILL
, No. 126625; Court of Appeals No. 246074.
V
ERCNOCKE V
S
TUBBS
, No. 126653; Court of Appeals No. 245422.
K
UZMA V
G
REAT
L
AKES
B
EVERAGE
C
OMPANY
, No. 126836; Court of Appeals
No. 245734.
W
ILLIAM
B
EAUMONT
H
OSPITAL V
G
ARDEN
C
ITY
O
STEOPATHIC
H
OSPITAL
,No.
126860; Court of Appeals No. 245584.
P
EOPLE V
K
EITH
F
INLEY
, No. 126881; Court of Appeals No. 246159.
P
EOPLE V
B
ANDY
, No. 126883; Court of Appeals No. 247511.
P
EOPLE V
P
ORCH
, No. 126895; Court of Appeals No. 244390.
J
ABERO V
H
ARAJLI
, Nos. 126903, 126904; Court of Appeals Nos. 243494,
246737.
P
EOPLE V
F
REEZEL
J
ONES
, No. 126926; Court of Appeals No. 248547.
P
EOPLE V
B
ILLY
P
AIGE
, No. 126949; Court of Appeals No. 255497.
H
ERSCHFUS V
H
ERSCHFUS
, No. 126950; Court of Appeals No. 252217.
S
ULIMAN V
P
ONTIAC
C
EILING AND
P
ARTITION
C
OMPANY,
LLC, No. 126963;
Court of Appeals No. 248121.
C
ARPENTER V
S
IMONIAN
, No. 126966; Court of Appeals No. 247258.
S
TANLEY
B
UILDING
C
OMPANY V
C
ITY OF
S
T
C
LAIR
S
HORES
, No. 126967;
Court of Appeals No. 245168.
P
EOPLE V
J
ENKINS
, No. 126975; Court of Appeals No. 248952.
P
EOPLE V
P
LINE
, No. 126990; Court of Appeals No. 247644.
P
EOPLE V
C
LARKSTON
, No. 126999; Court of Appeals No. 255676.
A
CTIONS ON
A
PPLICATIONS
893
RVP D
EVELOPMENT
C
ORP V
F
URNESS
G
OLF
C
ONSTRUCTION
I
NC
and F
URNESS
G
OLF
C
ONSTRUCTION
I
NC V
RVP D
EVELOPMENT
C
ORP,
Nos. 127013, 127014;
Court of Appeals Nos. 241125, 241126.
D
EUTSCH V
B
ERLINER
, No. 127015; Court of Appeals No. 246991.
N
ORMAN
C
ORPORATION V
C
ITY OF
E
AST
T
AWAS
, No. 127021; reported
below: 263 Mich App 194.
P
EOPLE V
H
EARINGTON
, No. 127024; Court of Appeals No. 245015.
L
EWIS V
F
IRST
A
LLIANCE
M
ORTGAGE
C
OMPANY
, No. 127033; Court of
Appeals No. 230089.
D
EPARTMENT OF
T
RANSPORTATION V
L
ANDSTAR
L
IGON,
I
NC
, No. 127044.
Leave to file a brief amicus curiae is granted. Court of Appeals No.
250744.
H
AWKINS V
E
ASON
, No. 127047; Court of Appeals No. 246168.
R
OSE V
D
URLING
, No. 127048; Court of Appeals No. 253778.
P
EOPLE V
B
RIAN
J
ONES
, No. 127054; Court of Appeals No. 256128.
P
EOPLE V
L
ANCASTER
, No. 127062; Court of Appeals No. 248686.
P
EOPLE V
P
AYNE
, No. 127069; Court of Appeals No. 255972.
P
EOPLE V
T
ONY
L
AWSON
, No. 127073; Court of Appeals No. 247855.
C
LAYBONE V
D
ETROIT
D
IESEL
C
ORPORATION
, No. 127076; Court of Appeals
No. 255117.
P
EOPLE V
S
TEPHEN
J
OHNSON
, No. 127083; Court of Appeals No. 246925.
P
EOPLE V
P
ETHOUD
, No. 127093; Court of Appeals No. 244115.
P
EOPLE V
P
ULLIAM
, No. 127103; Court of Appeals No. 247550.
P
EOPLE V
G
AIL
W
ILSON
, No. 127107; Court of Appeals No. 247131.
P
EOPLE V
A
TKINS
, No. 127110; Court of Appeals No. 237788.
H
OJEIJE V
D
EPARTMENT OF
T
REASURY
and H
OJEIJE V
B
ROCKMAN
, Nos.
127111, 127112; reported below: 263 Mich App 295.
P
EOPLE V
B
ARRY
W
ILLIS
, No. 127113; Court of Appeals No. 255350.
C
HURCH’S
B
UILDER
W
HOLESALE V
H
OMEOWNER
C
ONSTRUCTION
L
IEN
R
ECOV-
ERY
F
UND
(C
HURCH’S
B
UILDER
W
HOLESALE V
L
OESSER
), No. 127114; Court of
Appeals No. 255116.
P
EOPLE V
A
NTONIO
C
ASEY
, No. 127128; Court of Appeals No. 255094.
P
EOPLE V
F
RANK
P
ARKER
, No. 127133; Court of Appeals No. 245093.
P
EOPLE V
D
E
A
NDRE
W
ILSON
, Nos. 127134, 127155; Court of Appeals Nos.
246893, 247211.
894 472 M
ICHIGAN
R
EPORTS
P
EOPLE V
M
C
C
RACKEN
, No. 127138; Court of Appeals No. 246817.
P
EOPLE V
C
ORY
T
HOMPSON
, No. 127141; Court of Appeals No. 240849.
P
EOPLE V
C
OLLIER
, No. 127147; Court of Appeals No. 245502.
P
EOPLE V
J
OHN
L
AWSON
, No. 127148; Court of Appeals No. 246716.
P
EOPLE V
S
HANNON
, No. 127159; Court of Appeals No. 250164.
P
EOPLE V
C
HONTOS
, Nos. 127160, 127161; Court of Appeals Nos.
246799, 246884.
S
WILLEY V
G
ENERAL
M
OTORS
C
ORPORATION
, No. 127164; Court of Appeals
No. 255194.
M
OSIMANN V
MSAS C
ARGO
I
NTERNATIONAL
, No. 127165; Court of Appeals
No. 253765.
P
EOPLE V
H
AMPTON
, No. 127168; Court of Appeals No. 256100.
P
EOPLE V
S
OUTHWARD
, No. 127169; Court of Appeals No. 249293.
P
EOPLE V
T
URIC
, No. 127180; Court of Appeals No. 254833.
R
OBERTS V
F
ORD
M
OTOR
C
OMPANY
, No. 127182; Court of Appeals No.
255439.
P
EOPLE V
S
AMUEL
T
HOMAS
, No. 127185; reported below: 263 Mich App
70.
P
EOPLE V
D
ENNIS
H
ICKS
, No. 127187; Court of Appeals No. 256380.
P
EOPLE V
D
ENNIS
, No. 127195; Court of Appeals No. 240747.
P
EOPLE V
J
OEL
C
ARTER
, No. 127196; Court of Appeals No. 249089.
B
ACARELLA V
C
HOLAK
-J
ONES
, No. 127197; Court of Appeals No. 248425.
S
OHN V
US A
IR,
I
NCORPORATED
, No. 127198; Court of Appeals No.
255372.
P
EOPLE V
B
EY
, No. 127202; Court of Appeals No. 246981.
P
EOPLE V
T
ITUS
W
ILLIS
, No. 127203; Court of Appeals No. 246364.
P
EOPLE V
J
AMES
HD
ANIELS
, No. 127204; Court of Appeals No. 247033.
Z
AMMIT V
C
ITY OF
N
EW
B
ALTIMORE
P
OLICE
D
EPARTMENT
, No. 127209; Court
of Appeals No. 256687.
M
OWREY V
W
ESTFIELD
I
NSURANCE
C
OMPANY
, No. 127213; Court of Appeals
No. 246173.
P
EOPLE V
M
C
C
ANN
N
O
2, No. 127216; Court of Appeals No. 246538.
P
EOPLE V
S
HERIDAN
, No. 127219; Court of Appeals No. 256576.
P
EOPLE V
B
OYD,
No. 127220; Court of Appeals No. 246721.
A
CTIONS ON
A
PPLICATIONS
895
B
ARCEWSKI V
Y
ELLOW
F
REIGHT
S
YSTEM,
I
NC
, No. 127231; Court of Appeals
No. 255353.
B
RONSON V
M
EIJER
C
OMPANIES,
L
TD
, No. 127232; Court of Appeals No.
255470.
P
EOPLE V
J
EREMIAH
B
ROOKS
, No. 127233; Court of Appeals No. 256940.
P
EOPLE V
M
ORRIS
R
OGERS
, No. 127235; Court of Appeals No. 250163.
P
EOPLE V
B
ELSER
, No. 127238; Court of Appeals No. 247214.
P
EOPLE V
F
ASON
, No. 127239; Court of Appeals No. 255274.
P
EOPLE OF THE
C
ITY OF
S
OUTHGATE V
C
ADLE
, No. 127242; Court of Appeals
No. 255087.
P
EOPLE V
K
ENDRICKS
, No. 127244; Court of Appeals No. 240331.
P
EOPLE V
C
HRISTINE
W
ILLIAMS
, No. 127246; Court of Appeals No.
244205.
P
EOPLE OF THE
C
ITY OF
S
OUTHGATE V
E
GGERS
, No. 127247; Court of
Appeals No. 255088.
P
EOPLE V
L
AWRENCE
H
ENDERSON
, No. 127258; Court of Appeals No.
248603.
G
RAHAM V
R
IGHTSOURCE
G
ROUP,
LLC, No. 127263; Court of Appeals No.
255103.
P
EOPLE V
J
AY
B
URNS
, No. 127264; Court of Appeals No. 255907.
P
EOPLE V
B
USSEY
, No. 127267; Court of Appeals No. 247350.
A
DAIR
H
OLDINGS,
LLCvK
LINE
, No. 127268; Court of Appeals No.
255142.
P
EOPLE V
O
SBORNE
, No. 127280; Court of Appeals No. 256876.
P
EOPLE V
B
LAND
, No. 127290; Court of Appeals No. 248568.
W
INTERSMITH V
M
ICHIGAN
F
EDERAL
C
REDIT
U
NION
, No. 127308; Court of
Appeals No. 255567.
P
EOPLE V
G
AY
, No. 127311; Court of Appeals No. 246720.
C
AZA V
P
OINTE
D
ODGE
, No. 127328; Court of Appeals No. 256152.
P
EOPLE V
J
ANOSKEY
, No. 127500; Court of Appeals No. 253277.
P
EOPLE V
C
OUCH
, No. 128035; Court of Appeals No. 257600.
P
EOPLE V
A
MBROSE
, No. 128160; Court of Appeals No. 259571.
Interlocutory Appeals
Leave to Appeal Denied April 26, 2005:
E
LGRABLY V
R
OSS
, No. 127989; Court of Appeals No. 259842.
896 472 M
ICHIGAN
R
EPORTS
P
EOPLE V
C
ROCKETT
, No. 128109; Court of Appeals No. 258456.
Reconsideration Denied April 26, 2005:
P
EOPLE V
B
ATES
, No. 126072. Leave to appeal denied at 472 Mich
851. Court of Appeals No. 251123.
P
EOPLE V
D
AUGHERTY
, No. 126788. Leave to appeal denied at 472 Mich
862. Court of Appeals No. 252665.
P
EOPLE V
S
HANEBERGER
, No. 126876. Leave to appeal denied at 472 Mich
853. Court of Appeals No. 256500.
W
INALIS V
K
HATTAR
, No. 127683. Leave to appeal denied at 472 Mich
862. Court of Appeals No. 259053.
Reconsideration Denied April 29, 2005:
In re B
ANKS
(F
AMILY
I
NDEPENDENCE
A
GENCY V
B
ANKS
), No. 127292. See
472 Mich 873. Court of Appeals No. 252617.
T
AYLOR,
C.J., and C
AVANAGH
and K
ELLY,
JJ. We would grant reconsidera-
tion and, on reconsideration, would deny leave to appeal.
Leave to Appeal Denied May 5, 2005:
A
UITO V
C
LARKSTON
C
REEK
G
OLF
C
LUB,
I
NC
, No. 126968; Court of Appeals
No. 240621.
Summary Disposition May 6, 2005:
D
ETROIT
E
DISON
C
OMPANY V
P
UBLIC
S
ERVICE
C
OMMISSION
N
O
1, M
ICHIGAN
E
LECTRIC
C
OOPERATIVE
A
SSOCIATION V
P
UBLIC
S
ERVICE
C
OMMISSION
N
O
1, and
C
ONSUMERS
E
NERGY
C
OMPANY V
P
UBLIC
S
ERVICE
C
OMMISSION
N
O
1, Nos.
125950, 125954, 125955. On order of the Court, leave to appeal having
been granted and oral arguments of the parties having been considered
by the Court, pursuant to MCR 7.302(G)(1), only part II(B) of the March
2, 2004, Court of Appeals opinion, in which the Court of Appeals
erroneously concluded that a generally applicable industry code of
conduct may be promulgated through a contested case proceeding is
vacated. The conclusion by the Court of Appeals in part II(B) is contrary
to MCL 24.203(3) and 24.207 as well as existing case law, e.g., Detroit
Base Coalition for the Human Rights of the Handicapped v Dep’t of Social
Services, 431 Mich 172 (1988); In re Pub Service Comm Guidelines for
Transactions Between Affiliates, 252 Mich App 254 (2002). Further, the
issue addressed in part II(B) of the Court of Appeals opinion is now moot
in light of 2004 PA 88, in which the Legislature amended MCL 460.10a(5)
and ratified the code of conduct established by the Public Service
Commission. In all other respects, leave to appeal is denied. Reported
below: 261 Mich App 1.
A
CTIONS ON
A
PPLICATIONS
897
C
AVANAGH,
J
.
(concurring in part). Because of 2004 PA 88, the issue
addressed in part II(B) of the Court of Appeals opinion is now moot;
therefore, I concur only with the determination that leave was improvi-
dently granted and should be denied.
K
ELLY,
J
.
I join the statement of Justice C
AVANAGH.
Leave to Appeal Denied May 6, 2005:
In re Z
ANDARSKI
(F
AMILY
I
NDEPENDENCE
A
GENCY V
Z
ANDARSKI
), No. 128520;
Court of Appeals No. 258120.
Leave to Appeal Granted May 12, 2005:
P
EOPLE V
K
EVIN
R
OBINSON
, No. 126379. The parties are directed to
include among the issues addressed: (1) the elements of accomplice
liability under MCL 767.39; and (2) whether intent to cause great bodily
harm is sufficient to support a conviction of aiding and abetting second-
degree murder. See People v Langworthy, 416 Mich 630 (1982); People v
Kelly, 423 Mich 261 (1985). Court of Appeals No. 237036.
S
ORKOWITZ V
L
AKRITZ,
W
ISSBRUN &
A
SSOCIATES,
PC, No. 126562; reported
below: 261 Mich App 642.
O
STROTH V
W
ARREN
R
EGENCY,
GP, LLC, No. 126859. The parties are
directed to include among the issues briefed: (1) whether MCL
600.5839(1) precludes application of the statutes of limitations prescribed
by MCL 600.5805 and, if not, (2) which statute of limitations, MCL
600.5805(6) or MCL 600.5805(10), is applicable to the claim asserted
against defendant Edward Schulak, Hobbs & Black, Inc., in this case. The
motions for leave to file briefs amicus curiae on appeal are also granted.
Other persons or groups interested in the determination of the question
presented in this case may move the Court for permission to file briefs
amicus curiae. Reported below: 263 Mich App 1.
F
EDERATED
I
NSURANCE
C
OMPANY V
O
AKLAND
C
OUNTY
R
OAD
C
OMMISSION
, No.
126886. The parties are directed to include among the issues to be
briefed: (1) whether the work initiated in 1991 was an “interim response
activity” that did not trigger the statute of limitations provision set out
in MCL 324.20140(1)(a) rather than a “remedial action” that must first
be “approved or selected” by the Department of Environmental Quality;
and (2) whether the initiation of work for one release of hazardous
substances begins the running of the period of limitations for any
subsequent or unrelated release of hazardous substances. The applica-
tion for leave to appeal as cross-appellant is denied. Reported below: 263
Mich App 62.
H
OERSTMAN
G
ENERAL
C
ONTRACTING,
I
NC V
H
AHN
, No. 126958. The issue is
limited to whether there was an accord and satisfaction between the
disputing parties in this case. Other persons or groups interested in the
determination of the question presented in this case may move the Court
for permission to file briefs amicus curiae. Court of Appeals No. 244507.
898 472 M
ICHIGAN
R
EPORTS
Z
SIGO V
H
URLEY
M
EDICAL
C
ENTER
, No. 126984. Persons or groups
interested in the determination of the question presented in this case
may move the Court for permission to file briefs amicus curiae. Court of
Appeals No. 240155.
C
AMERON V
A
UTO
C
LUB
I
NSURANCE
A
SSOCIATION
, No. 127018. Leave to file
a brief amicus curiae is granted. Reported below: 263 Mich App 95.
W
EXFORD
M
EDICAL
G
ROUP V
C
ITY OF
C
ADILLAC
, No. 127152. The parties
are directed to include among the issues to be briefed: (1) whether
petitioner has demonstrated that it is entitled to the charitable institu-
tion exemptions set forth in MCL 211.7o and MCL 211.9(a); (2) whether
petitioner has shown that it is entitled to the public health exemption
under MCL 211.7r; and (3) whether the Tax Tribunal or the judiciary
may impose a threshold level of charitable care or public health services
when the Legislature has not done so. The motions to file briefs amicus
curiae by the Michigan Health & Hospital Association and the Michigan
Rural Health Clinics Organization in support of petitioner-appellant are
also granted. Other persons or groups interested in the determination of
the questions presented in this case may move the Court for permission
to file briefs amicus curiae. Court of Appeals No. 250197.
Leave to Appeal Granted May 13, 2005:
M
ICHIGAN
C
HIROPRACTIC
C
OUNCIL V
C
OMMISSIONER OF THE
O
FFICE OF
F
INAN-
CIAL AND
I
NSURANCE
S
ERVICES
, Nos. 126530, 126531. The parties are
directed to include among the issues briefed: (1) whether an optional
managed care endorsement such as that offered by intervenors is
permissible under the no-fault act, MCL 500.3101 et seq., (2) whether the
Court of Appeals erred in relying on its finding that the endorsement is
potentially deceptive and misleading, (3) whether petitioners have stand-
ing to bring their petition, in light of some number of their members
having participated in the managed care program, or any other reason
affecting standing, and whether petitioners have standing with regard to
all or only some of the counts in their petition, and (4) the standard of
review to be applied by the circuit court to the administrative decision
denying the petition. Leave to file briefs amicus curiae are also granted.
Reported below: 262 Mich App 228.
W
ILSON V
A
LPENA
C
OUNTY
R
OAD
C
OMMISSION
, No. 126951. The parties are
directed to include among the issues briefed whether the plaintiffs
sufficiently pleaded facts and provided evidence sufficient to place their
claim within the highway exception to governmental immunity, MCL
691.1402. Reported below: 263 Mich App 141.
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal May 13, 2005:
P
EOPLE V
A
NTHONY
J
OHNSON
, No. 127434. Pursuant to MCR 7.302(G)(l),
the clerk is to schedule oral argument on whether to grant the application
or take other peremptory action permitted by MCR 7.302(G)(l). The
A
CTIONS ON
A
PPLICATIONS
899
parties may file supplemental briefs within 28 days of the date of this
order, but they should avoid submitting mere restatement of arguments
made in application papers. The application for leave to appeal remains
pending. Court of Appeals No. 246937.
Summary Disposition May 13, 2005:
Y
OUSIF V
M
ONA
, No. 126594. In lieu of granting leave to appeal, the case
is remanded to the Court of Appeals to articulate the material facts in
issue on the question of whether the carpet pulls represented an
unreasonable hazard, of which defendant had a duty to warn plaintiff.
MCR 7.302(G)(1). Jurisdiction is retained. Court of Appeals No. 246680.
Y
OUNG,
J
.
I share Justice M
ARKMAN
’s belief that a loose carpet thread is
not a “hidden danger” and that plaintiff faced no “unreasonable risk of
harm” from defendant’s carpeting. As we have previously held, a social
guest “assumes the ordinary risks that come with the premises.” Stitt v
Holland Abundant Life Fellowship, 462 Mich 591, 603 (2001). A loose
carpet thread is certainly an “ordinary risk” one would expect in visiting
another’s home.
K
ELLY,
J. I would deny the application for leave to appeal.
M
ARKMAN
,J.(dissenting). While at defendant’s—her brother’s—home,
plaintiff tripped on a loose carpet thread loop and injured herself. The
trial court granted summary disposition in favor of defendant, and the
Court of Appeals reversed. Contrary to the majority, I would reverse the
judgment of the Court of Appeals and reinstate the order of the trial
court.
Because a loose carpet thread loop is not a “hidden danger,” James v
Albert, 464 Mich 12, 19 (2001), and because a homeowner does not owe an
obligation to an invitee to scour his or her premises to ensure that there
are no loose carpet thread loops in his or her home, I do not believe that
any “unreasonable risk of harm” was posed to the plaintiff. Preston v
Sleziak, 383 Mich 442, 453 (1970), overruled on other grounds by Stitt v
Holland Abundant Life Fellowship, 462 Mich 591 (2000). A host “has no
duty to reconstruct his premises...forthoseaccepting his hospitality.
The guest assumes ordinary risks that come with the premises.” Stitt,
supra at 603. A loose carpet thread loop is an ordinary risk in a carpeted
home, and a homeowner has no duty to rid his or her home of every loose
carpet thread loop before inviting another for a visit. Social guests are
licensees who “assume the ordinary risks associated with their visit.”
James, supra at 19.
As in Barrett v Discount Tire & Battery (Docket No. 127167), the
Court of Appeals here loses sight of the fact that legal decisions are
designed to increase the predictability and certainty of everyday life.
Such decisions have practical consequences. What is the appropriate
response to the Court of Appeals decision on the part of a reasonable
homeowner in Michigan (at least one who happens to have a rug or carpet
somewhere within his or her premises) who wishes to avoid litigation?
Must he or she remove all rugs and carpets from the premises? Must he
900 472 M
ICHIGAN
R
EPORTS
or she inspect each rug or carpet loop by loop in order to determine
whether any are loose or of an excessive diameter? Must he or she apprise
visitors while they are on the front porch that there is carpeting within
the home and that a guest enters at the guest’s own risk? Will a sign
warning of the possibility of errant carpet loops be sufficient? Will Berber,
but not Persian, rugs and carpets subject homeowners to heightened
liability? The Court of Appeals decision would expose homeowners to the
risk of litigation for accidents arising from the most mundane, the most
open and obvious, conditions of the ordinary home, conditions regarding
which there has been no unreasonable conduct at all on the part of the
homeowners.
What is the rule of personal conduct and obligation that the Court of
Appeals would impose upon homeowners by its decision in this case?
Leave to Appeal Denied May 13, 2005:
P
EOPLE V
M
OORER
, No. 126457; reported below: 262 Mich App 64.
K
ELLY
,J.(dissenting). I continue to disagree with this Court’s issu-
ance of an order directing the prosecutor to respond to defendant’s
application for leave to appeal.
Defendant sought leave to appeal in propria persona. He is indigent
and requested appointment of appellate counsel. The prosecutor chose
not to respond to his application. Although defendant is unskilled in
conducting legal research and presenting legal arguments, his claim had
merit on its face.
Rather than grant leave to appeal or direct the Clerk to schedule oral
argument on whether to grant the application, the Court gave the
prosecutor a second opportunity to respond. It did not appoint counsel for
defendant. Now it denies defendant’s application.
I believe that the Court should have granted defendant’s request for
appointment of appellate counsel and scheduled oral argument on
whether to grant the application for leave to appeal. This would have
given the Court the benefit of the best argument from both sides and kept
the scales of justice evenly balanced.
I would appoint appellate counsel for defendant and direct the Clerk
to schedule oral argument on whether to grant the application for leave
to appeal.
M
C
D
ONALD V
V
AUGHN
, No. 126771; Court of Appeals No. 244687.
M
ARKMAN
,J.(concurring). While I concur in the decision to deny leave
to appeal, I write separately to inquire of the dissenting justices what rule
of law they would effect in the instant case—a rule of law that presum-
ably would be equally applicable in the next thousand cases as in the
instant case? (1) Would they hold that an affidavit that does not state that
it is made on personal knowledge, that does not state any facts that are
admissible as evidence, and that does not demonstrate that the affiant, if
sworn as a witness, could testify competently, constitutes a valid affida-
vit? (2) Would they hold that such an affidavit, although invalid,
A
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901
nonetheless constitutes harmless error? (3) Would they hold that it
constitutes an abuse of discretion on the part of the trial court not to
admit such an affidavit? (4) Would they hold that, where a defective
affidavit has been filed, it is always an abuse of discretion on the part of
the trial court not to allow the filing party an opportunity to file a second
affidavit? (5) If it would not always constitute an abuse of discretion not
to allow a second affidavit, under what circumstances would they hold it
does constitute an abuse of discretion? Once more, what is the rule of law
that the dissenting justices would bestow upon our legal system by
reversing the trial court and the Court of Appeals in this case?
Although Justice C
AVANAGH
chooses not to accept my invitation to
articulate the rule of law that he would uphold by his dissenting position
in this case, I am pleased to respond to his own invitation by predicting
that the overwhelming majority of the “next thousand” cases of this kind
will never be introduced at all into the appellate process because the
parties will understand, as a result of the instant decision and others like
it, that Michigan’s court rules mean what they say and that a trial court
does not abuse its discretion by adhering to such rules.
C
AVANAGH
, J. I would remand this case to the Oakland Circuit Court
for further proceedings since, under the facts of this case, the circuit
court abused its discretion in failing to consider Dr. Tolia’s August 8,
2002, affidavit; and would also urge Justice M
ARKMAN
to pay close
attention to the next thousand cases and determine what rule of law
emerges.
K
ELLY
, J. I would remand this case to the Oakland Circuit Court for
further proceedings since, under the facts of this case, the circuit court
abused its discretion in failing to consider Dr. Tolia’s August 8, 2002,
affidavit.
B
ARRETT V
D
ISCOUNT
T
IRE &
B
ATTERY
, No. 127167; Court of Appeals No.
250213.
M
ARKMAN
,J.(dissenting). Plaintiff tripped over a two-foot-long jack
protruding from underneath a vehicle at an automotive garage and
injured himself. The trial court granted summary disposition in favor of
defendant, and the Court of Appeals reversed. Contrary to the majority,
I would reverse the judgment of the Court of Appeals and reinstate the
order of the trial court.
“[T]he general rule is that a premises possessor is not required to
protect an invitee from open and obvious dangers....”Lugo v Amer-
itech Corp, Inc, 464 Mich 512, 517 (2001). “[O]nly those special aspects
that give rise to a uniquely high likelihood of harm or severity of harm if
the risk is not avoided will serve to remove that condition from the open
and obvious danger doctrine.” Id. at 519.
In my judgment, “a reasonably prudent person,” id. at 523, would
have observed the jack sticking out from underneath the vehicle. More-
over, “a reasonably prudent person” would be aware of the possibility
that a jack might be sticking out from underneath a vehicle in an
902 472 M
ICHIGAN
R
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automotive garage, and be prepared to avoid it. Finally, a jack sticking out
from underneath a vehicle in an automotive garage “does not involve an
especially high likelihood of injury,” id. at 520, to the extent that it must
be avoided at all costs by a garage owner acting reasonably to protect
those upon his or her premises.
The Court of Appeals believed that the jack was not “open and
obvious” because it was gray and may have been camouflaged by the gray
garage floor. However, to allow such a condition by itself to negate the fact
that the “hazard” of the jack is “open and obvious” is to seriously erode
the “open and obvious” defense, one that has traditionally been available
to protect property owners from unreasonable liability.
As with Yousif v Mona (Docket No. 126594), the Court of Appeals here
lost sight of the fact that legal decisions are designed to increase the
predictability and certainty of everyday life. Such decisions have practical
consequences. What is the appropriate response to the Court of Appeals
decision on the part of a reasonable automotive garage owner in Michigan
who wishes to avoid litigation? Must his or her jacks be of a different color
than the garage floor? If there is the possibility of grease on the garage
floor (which product often happens to be black), must the jack be some
other color than black? Must the jack be of a bright color? Must the jack
not be allowed to protrude from underneath a vehicle unless it contains
an eye-level flag of a color that is not camouflaged by the walls of the
garage? The Court of Appeals decision would expose property owners to
the risk of litigation for accidents arising from the most mundane, the
most open and obvious, conditions of an ordinary business premises,
conditions concerning which there has been no unreasonable conduct at
all on the part of the property owners.
What is the rule of personal conduct and obligation that the Court of
Appeals would impose upon property owners by its decision in this case?
In re M
ERSINO
(F
AMILY
I
NDEPENDENCE
A
GENCY V
H
EAD
), No. 128393.
Leave to appeal is denied because respondent’s claim of appeal was filed
more than sixty-three days after entry of the order terminating her
parental rights. See MCR 3.993(C)(2) and MCR 7.205(F)(5). Court of
Appeals No. 260392.
K
ELLY
,J.(concurring). While I concur in the decision to deny leave to
appeal, I do so for the reason articulated by the Court of Appeals. As the
Court of Appeals noted, respondent failed to request appointment of
appellate counsel within fourteen days of receiving notice of the termi-
nation of her parental rights. MCR 3.977(I)(1)(c); MCR 7.204(A)(1)(c).
Because respondent failed either to timely request counsel or to file her
claim of appeal within sixty-three days of the order terminating parental
rights, she lost her right to appeal.
Leave to Appeal Denied May 20, 2005:
In re P
ETITION FOR
F
ORECLOSURE OF
C
ERTAIN
P
ARCELS
(J
ACKSON
C
OUNTY
T
REASURER V
C
HRISTIE
), No. 126380; Court of Appeals No. 246672.
M
ARKMAN,
J
.
I respectfully dissent from the majority’s order denying
plaintiff’s application for leave to appeal, and instead would grant leave
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903
to appeal. The issue presented here is whether plaintiff failed to “satisfy
the minimum requirements of due process required under the constitu-
tion of this state and the constitution of the United States....”MCL
211.78(2). More specifically, the issue is how much notice, if any, the
government must provide to a month-to-month tenant in order to
“satisfy the minimum requirements of due process.” In Dow v Michigan,
396 Mich 192, 196 (1976), this Court held that “the Due Process Clause
requires that an owner of a significant interest in property be given
propernotice....”Doesamonth-to-month tenant possess a “signifi-
cant interest in property”? If so, what is the “proper notice” due to the
month-to-month tenant? These are consequential constitutional ques-
tions that, in my judgment, merit further attention by this Court.
T
AYLOR
, C.J. I join the statement of Justice M
ARKMAN
.
In re P
ATTERSON
(S
HUMAN V
P
ATTERSON
), No. 128653; Court of Appeals
No. 257961.
Summary Dispositions May 26, 2005:
T
ATE V
B
OTSFORD
G
ENERAL
H
OSPITAL
, No. 126603. In lieu of granting
leave to appeal, the judgment of the Court of Appeals is reversed, and the
order of the Oakland Circuit Court is reinstated. MCR 7.302(G)(1). There
was no question of fact regarding plaintiff’s competence to refuse
treatment because plaintiff failed to respond to the summary disposition
motion by setting forth “specific facts” that properly refuted the doctor’s
testimony that she was responding to a life-threatening emergency
situation and that, because of the drug reaction, plaintiff would not have
been sufficiently alert or mentally competent to refuse treatment. MCR
2.116(G)(4). Plaintiff’s unsworn statements were not notarized and did
not affirmatively show that the witnesses, if sworn as witnesses, could
testify competently to the facts stated in the statements. MCR
2.119(B)(1)(c). Further, neither of plaintiff’s statements was from an
expert as was needed here, given that the diagnosis of a medical
emergency requires expert opinion. Court of Appeals No. 245081.
C
AVANAGH,
J
.
(dissenting). Plaintiff claims that defendant hospital
falsely imprisoned him when its emergency department staff physically
restrained him in response to his request to leave and go to another
hospital. Defendant moved for summary disposition under MCR
2.116(C)(10), arguing that the emergency room physician had a right and
duty to provide medical care because an emergency situation developed
as a result of plaintiff’s allergic reaction to the drug Compazine. In
support of its motion, defendant included the affidavit of the emergency
room physician, plaintiff’s medical record, which detailed what defendant
alleged was a life-threatening emergency, and plaintiff’s signed authori-
zation for emergency services. Plaintiff’s response to defendant’s motion
for summary disposition was supported by two documents.
904 472 M
ICHIGAN
R
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The trial court granted defendant’s motion for summary disposition,
concluding that the emergency room physician had a legal right to
restrain plaintiff in light of the allergic reaction. The Court of Appeals
reversed, holding that a question of fact exists regarding whether
plaintiff was competent to refuse treatment. Unpublished opinion per
curiam of the Court of Appeals, issued April 29, 2004 (Docket No.
245081). Because I believe that the Court of Appeals reached the right
result, I would simply deny leave to appeal. Accordingly, I must respect-
fully dissent.
The grant or denial of summary disposition is reviewed de novo.
Morales v Auto-Owners Ins Co, 458 Mich 288, 294 (1998). Summary
disposition based on a motion brought under MCR 2.116(C)(10) may be
granted if the moving party is entitled to judgment as a matter of law and
there is no genuine issue of material fact. Id. A genuine issue of material
fact exists when the record leaves open an issue on which reasonable
minds may differ. West v Gen Motors Corp, 469 Mich 177, 183 (2003).
Further, this Court must “consider the pleadings, affidavits, depositions,
admissions, and any other evidence in favor of the party opposing the
motion, and grant the benefit of any reasonable doubt to the opposing
party.” Radtke v Everett, 442 Mich 368, 374 (1993). In viewing the
documentary evidence in the light most favorable to plaintiff, the
opposing party, I would conclude that there is a genuine issue of material
fact regarding when plaintiff requested to leave.
Again, in support of its motion for summary disposition, defendant
averred that there was a life-threatening medical emergency caused by
the reaction to the Compazine, that the use of restraints then became
medically necessary to preserve plaintiff’s life because plaintiff became
dystonic as a result of the Compazine, and that plaintiff’s competency
was compromised because of the allergic reaction to the Compazine. In
opposition to defendant’s motion for summary disposition, plaintiff
submitted his own affidavit and testified as follows:
I further contends [sic] that after I was taken into the emer-
gency ward, I allowed my pulse to be taken and a blood sample to
be drawn, but I strongly questioned the treating doctors [sic]
competency and her motive when she inserted an IV tube in my
arm as I had been medically treated several times in the past [for]
stomach up[set] where I was successfully treated with a simple
oral medication that alleviated the problem.
Plaintiff further testified:
When I then [went] to get up off the gurney and announced
that I was going over to Beaumont General Hospital, the treating
[doctor] called over a security guard accompanied by two hospital
orderlies that intimidated me from leaving. I then announced that
I was going to call the police and the treating doctor then indicated
the security guard was the police.
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As I again attempted to get off the gurney and leave, the
treating doctor had my wrist tied to the gurney so that I was
totally immobilized and could not move from the gurney.
It is at this point that plaintiff claims he was falsely imprisoned.
Moreover, plaintiff avers that he was fully competent and was not in an
emergency state at this point. Plaintiff goes on to testify:
It was only after I was tied down and the IV tube reinserted and
drugs poured into me that I suffered any bad reaction that
consisted of keeping me in an extreme drowsy state the rest of my
imprisonment in the defendant hospital. [Emphasis added.]
In my view, plaintiff presented sufficient evidence to withstand the
motion for summary disposition because there is a genuine issue of
material fact whether plaintiff was detained before the alleged emer-
gency situation developed. Defendant claims that plaintiff became agi-
tated after the administration of the Compazine and attempted to leave
after the medical emergency unfolded. On the other hand, plaintiff claims
that he requested to leave, and was subsequently restrained, before he
was administered the Compazine—i.e., before he suffered a reaction and
the alleged medical emergency occurred. Giving the benefit of reasonable
doubt to plaintiff, I would conclude that the grant of summary disposition
in defendant’s favor was improper because a genuine issue of material
fact remains. Moreover, by defendant’s own account, expert testimony
would not be necessary if plaintiff requested to leave, and was thereafter
restrained, before the alleged emergency developed.
In sum, I would conclude that plaintiff set forth “specific facts” to
refute defendant’s allegation that the physician was entitled to physically
restrain plaintiff after he suffered an alleged allergic reaction to Com-
pazine. Because a genuine issue of material fact is presented and the
Court of Appeals reached the right result, I would simply deny leave to
appeal. Thus, I must respectfully dissent.
W
EAVER
and K
ELLY,
JJ. We join the statement of Justice C
AVANAGH.
D
IVELY V
W
ILLIAM
B
EAUMONT
H
OSPITAL
, No. 127218. In lieu of granting
leave to appeal, the judgment of the Court of Appeals is vacated, and the
case is remanded to that Court for reconsideration. MCR 7.302(G)(1).
Pursuant to MCR 7.316(A)(4), the Court of Appeals is to reconsider its
decision in light of the transcript establishing that Lighthall was in fact
not among the witnesses identified during voir dire, and to reconsider the
admissibility of Lighthall’s testimony under MRE 702 in light of our
decisions in Gilbert v DaimlerChrysler Corp, 470 Mich 749 (2004), and
Craig v Oakwood Hosp, 471 Mich 67 (2004). Jurisdiction is not retained.
Court of Appeals No. 242288.
P
EOPLE V
S
COTT
S
MITH
, No. 127251. In lieu of granting leave to appeal,
the case is remanded to the Court of Appeals for consideration of
defendant’s claim of sentencing error as on leave granted. MCR
7.302(G)(1). Jurisdiction is not retained. Court of Appeals No. 257207.
906 472 M
ICHIGAN
R
EPORTS
P
EOPLE V
S
HACKELFORD
, No. 127257. In lieu of granting leave to appeal,
the case is remanded to the Wayne Circuit Court to determine whether
the complainants’ property was recovered. MCR 7.302(G)(1). If it was
recovered, then the judgment of sentence should be corrected to indicate
no restitution. If it was not recovered, then the presentence investigation
report should be corrected to indicate that fact. Jurisdiction is not
retained. Court of Appeals No. 256961.
P
EOPLE V
G
IVHAN
, No. 128122. In lieu of granting leave to appeal, only
that portion of the Court of Appeals decision that ordered a new trial based
on newly discovered evidence is vacated, and the case is remanded to the
Wayne Circuit Court for a determination, within 28 days of the date of this
order, of whether Joseph Moore’s account of the shooting is newly
discovered evidence that entitles defendant to a new trial. MCR
7.302(G)(1). In ruling that defendant was entitled to a new trial, the Court
of Appeals decided an issue that in the first instance properly should have
been decided by the trial court. In all other respects, leave to appeal is
denied. Jurisdiction is not retained. Court of Appeals No. 245107.
Leave to Appeal Denied May 26, 2005:
R
AVENNA
C
ASTINGS
C
ENTER V
R
AVENNA
T
OWNSHIP
, No. 126315; Court of
Appeals No. 242286.
C
AVANAGH,
K
ELLY,
and M
ARKMAN,
JJ. We would grant leave to appeal.
V
ICK V
D
EPARTMENT OF
C
ONSUMER AND
I
NDUSTRY
S
ERVICES
, No. 126796;
Court of Appeals No. 243630.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
J
ENNIFER
J
ONES
, No. 126929; Court of Appeals No. 246842.
K
ELLY,
J. I would hold this case in abeyance for People v Drohan, lv gtd
472 Mich 881 (2005).
P
EOPLE V
T
UMPKIN
, No. 126959; Court of Appeals No. 246778.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
B
YRD
, No. 126977; Court of Appeals No. 245624.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
P
EOPLE V
D
EREK
J
OHNSON
, No. 127008; Court of Appeals No. 246940.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
M
OLINA
, No. 127137; Court of Appeals No. 255750.
C
AVANAGH
and K
ELLY,
JJ. We would deny leave without prejudice to any
claim for relief that may be available to defendant under MCL 791.234(12)
after defendant has served five years of his sentence.
P
EOPLE V
B
RYANT
, No. 127166; Court of Appeals No. 256641.
K
ELLY
, J. I would hold this case in abeyance for People v Drohan,lvgtd
472 Mich 881 (2005).
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907
P
EOPLE V
S
HAUN
R
OBERTS
, No. 127183; Court of Appeals No. 247217.
K
ELLY
, J. I would remand this case for resentencing.
P
EOPLE V
F
ERNALD
, No. 127201; Court of Appeals No. 256610.
K
ELLY,
J. I would hold this case in abeyance for People v Drohan,lvgtd
472 Mich 881 (2005).
R
ILEY V
H
OLLAND
C
OMMUNITY
H
OSPITAL
, No. 127285; Court of Appeals
No. 255043.
K
ELLY
, J. I would vacate the dismissal for lack of jurisdiction and
remand for reconsideration of plaintiff’s application.
P
EOPLE V
C
HRZAN
, No. 128061; Court of Appeals No. 250137.
C
AVANAGH
and K
ELLY
, JJ. We would reverse for the reasons set forth in
the dissenting opinion in the Court of Appeals.
Leave to Appeal Granted May 27, 2005:
W
OLD
A
RCHITECTS AND
E
NGINEERS,
I
NC V
S
TRAT
, No. 126917. The parties
shall include among the issues briefed: (1) whether “common-law”
arbitration should be deemed preempted by the Michigan arbitration
statute, MCL 600.5001 et seq.; (2) if common-law arbitration continues to
exist, what language must be included in an agreement to make it
“statutory” arbitration; (3) whether the arbitration agreement in this
case became statutory arbitration due to the conduct of the parties
during the arbitration process; and (4) whether common-law arbitration
agreements should be unilaterally revocable. Court of Appeals No.
246874.
Order Granting Oral Argument in Cases Pending on Application for
Leave to Appeal May 27, 2005:
J
OLIET V
P
ITONIAK
, No. 127175. Pursuant to MCR 7.302(G)(1), the clerk
is to schedule oral argument on whether to grant the application or take
other peremptory action permitted by MCR 7.302(G)(1). The parties shall
submit supplemental briefs within 28 days of the date of this order
addressing: (1) what actions, if any, were taken by the two defendants after
October 8, 1998 that contributed to a discriminatory hostile work environ-
ment, so as to support a December 1, 1998, date of injury; (2) whether a
December 1, 1998, accrual date for injury to plaintiff is sustainable for
defendant Frank Bacha, where he left his employment with the city of
Taylor on October 8, 1998; and (3) the impact, if any, of this Court’s
decision in Magee v DaimlerChrysler Corp, 472 Mich 108 (2005). Court of
Appeals No. 247590.
Summary Disposition May 27, 2005:
W
OLTERS
R
EALTY,
L
TD V
S
AUGATUCK
T
OWNSHIP
, No. 127022. In lieu of
granting leave to appeal, the case is remanded to the Court of Appeals to
908 472 M
ICHIGAN
R
EPORTS
reconsider its opinion in light of the misstatement in its opinion that “it
is undisputed that plaintiff never sought a variance from defendants,”
when in fact the record reflects that plaintiff requested a variance, but
defendant zoning board of appeals deemed plaintiff’s variance request
moot because of its denial of plaintiff’s special approval use application.
MCR 7.302(G)(1). Jurisdiction is not retained. Court of Appeals No.
247228.
Summary Disposition May 31, 2005:
S
AHR V
W
AL
-M
ART
S
TORES,
I
NC
, No. 127338. In lieu of granting leave to
appeal, the case is remanded to the Court of Appeals for consideration as
on leave granted. MCR 7.302(G)(1). The Court of Appeals shall provide
an analysis of whether the Worker’s Compensation Appellate Commis-
sion misinterpreted the magistrate’s utilization of the testimony of
plaintiff’s treating surgeon, Dr. Gerald Schell, and improperly substi-
tuted its own interpretation of that testimony in violation of the
commission’s standard of review, MCL 418.861a(3). Mudel v Great
Atlantic & Pacific Tea Co, 462 Mich 691 (2000). Court of Appeals No.
255762.
K
ELLY,
J., not participating.
Reconsideration Granted May 31, 2005:
P
EOPLE V
Q
URESHI
, No. 127726. The order of February 28, 2005, 472
Mich 868, is vacated. On reconsideration, in lieu of granting leave to
appeal, the December 3, 2004, order of the Court of Appeals is vacated,
and the case is remanded to that Court for reconsideration of defen-
dant’s claim of appeal in light of the fact that the trial court’s judgment
of sentence incorrectly indicates that defendant pleaded guilty. MCR
7.302(G)(1). The record establishes that defendant was found guilty of
embezzlement after a bench trial. Jurisdiction is not retained. Court of
Appeals No. 258472.
Leave to Appeal Denied May 31, 2005:
E
SSELL V
G
EORGE
WA
UCH
C
OMPANY
, No. 126199; Court of Appeals No.
240940.
P
EOPLE V
P
IERRE
J
OHNSON
, No. 126591; Court of Appeals No. 246263.
D
ICKINSON V
L
IMP
B
IZKIT
, No. 126775; Court of Appeals No. 244021.
P
EOPLE V
I
NDIA
P
ORTER
, No. 126880; Court of Appeals No. 247486.
P
EOPLE V
W
ATSON
, No. 126888. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 253873.
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CTIONS ON
A
PPLICATIONS
909
P
EOPLE V
M
URRAY
, No. 126897; Court of Appeals No. 254956.
P
EOPLE V
N
GEM
, No. 126911. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254405.
P
EOPLE V
R
AMON
K
ING
, No. 126914. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 250446.
P
EOPLE V
M
AZER
, No. 126931. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255232.
P
EOPLE V
R
ONALD
J
OHNSON
, No. 126932. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 253940.
P
EOPLE V
R
ANDY
M
YERS
, No. 126936. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 253370.
P
EOPLE V
C
ALICUT
, No. 126939. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254650.
P
EOPLE V
H
UGHEY
, No. 126945. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 253470.
P
EOPLE V
S
PENCER
, No. 126954. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254061.
P
EOPLE V
R
OBERT
W
ALKER
, No. 126955. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 253192.
P
EOPLE V
S
TEPHEN
D
AVIS
, No. 126970. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 254961.
P
EOPLE V
L
AWRENCE
W
HITE
, No. 126974. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 253456.
K
ELLY
, J., not participating.
P
EOPLE V
H
AYWOOD
, No. 126982. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 253792.
P
EOPLE V
S
TAMPS
, No. 126991. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 252740.
910 472 M
ICHIGAN
R
EPORTS
P
EOPLE V
M
ARIO
B
ROWN
, No. 126995. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 254220.
P
EOPLE V
J
OHN
J
ONES
, No. 127002. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254784.
P
EOPLE V
A
LEXANDER
W
ALKER
, No. 127003. The defendant’s motion for
relief from judgment is prohibited by MCR 6.502(G). Court of Appeals
No. 256530.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
N
ELSON
, No. 127004. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 256758.
P
EOPLE V
J
AMES
LD
ANIELS
, No. 127023. The defendant’s motion for
relief from judgment is prohibited by MCR 6.502(G). Court of Appeals
No. 256768.
P
EOPLE V
D
ERRY
T
HOMAS
, No. 127025. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 253653.
K
ELLY,
J
.,
not participating.
P
EOPLE V
M
ALLORY
, No. 127026. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254773.
P
EOPLE V
L
EONARD
T
URNER
, No. 127027. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 254955.
P
EOPLE V
D
OUGLAS
R
OGERS
, No. 127035. The defendant’s motion for
relief from judgment is prohibited by MCR 6.502(G). Court of Appeals
No. 257492.
P
EOPLE V
R
OBERT
M
ARTIN
, No. 127037. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 252509.
P
EOPLE V
C
OLE
, No. 127040. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254439.
P
EOPLE V
B
URT
, No. 127042. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256794.
P
EOPLE V
L
IGGINS
, No. 127043. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 256553.
P
EOPLE V
C
LARDY
, No. 127045. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 257130.
A
CTIONS ON
A
PPLICATIONS
911
P
EOPLE V
E
DWARD
R
OBINSON
, No. 127059; Court of Appeals No. 256470.
P
EOPLE V
J
EWELL
, No. 127060. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 253410.
D
ENNIS V
F
ORD
, No. 127061; Court of Appeals No. 246485.
C
OMMUNITY
B
OWLING
C
ENTERS V
C
ITY OF
T
AYLOR
, No. 127065; Court of
Appeals No. 247937.
P
EOPLE V
M
ICHAEL
A
NDERSON
, No. 127066. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 254553.
P
EOPLE V
N
ETT
, No. 127068. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254800.
P
EOPLE V
K
RAUSE
, No. 127070; Court of Appeals No. 246896.
P
EOPLE V
M
AY
, No. 127072. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254430.
P
EOPLE V
E
LLIS
, No. 127075; Court of Appeals No. 246709.
P
EOPLE V
G
REGORY
C
ARTER
, No. 127081. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 254482.
B
AILEY V
A
MERITECH,
I
NC
, No. 127082; Court of Appeals No. 245837.
P
EOPLE V
P
HILLIP
M
ITCHELL
, No. 127084; Court of Appeals No. 247129.
G
RANBERRY V
H
ARPER
H
OSPITAL
, No. 127086; Court of Appeals No.
256075.
P
EOPLE V
R
ICHEY
, No. 127091. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254016.
P
EOPLE V
F
LOWERS
, No. 127095. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254062.
P
EOPLE V
S
HARPE
, No. 127097. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255331.
P
EOPLE V
C
HRISTOPHER
A
NDERSON
, No. 127117; Court of Appeals No.
245708.
P
EOPLE V
N
ASSER
, No. 127132. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255499.
912 472 M
ICHIGAN
R
EPORTS
L
INDAHL V
R
UBRIGHT
, No. 127136; Court of Appeals No. 245568.
P
EOPLE V
P
HILIP
M
ILLER
, No. 127139; Court of Appeals No. 246607.
P
EOPLE V
R
ICHARD
T
HOMAS
, No. 127146. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 253726.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
N
ORMAN
, No. 127149. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 256344.
P
EOPLE V
M
UNDEN
, No. 127170. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254388.
P
EOPLE V
W
ICKER
, No. 127173. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 253368.
P
EOPLE V
B
ILL
, No. 127178. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256374.
P
EOPLE V
C
RAIN
, No. 127179; Court of Appeals No. 247598.
P
EOPLE V
H
ASKELL
, No. 127184; Court of Appeals No. 251929.
P
EOPLE V
V
ARNEY
, No. 127189; Court of Appeals No. 247986.
H
ARRISON V
G
REAT
L
AKES
B
EVERAGE
C
OMPANY
, No. 127190; Court of
Appeals No. 245801.
P
EOPLE V
S
EGO
, No. 127191. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254979.
P
EOPLE V
A
UGUSTINE
H
ERNANDEZ
, No. 127199. The defendant has failed
to meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 254817.
P
EOPLE V
J
ERRY
S
IMS
, No. 127207. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
257316.
B
ORNSCHEIN V
S
TRAITS
C
ORRECTIONAL
F
ACILITY
W
ARDEN
, No. 127208;
Court of Appeals No. 256336.
C
ONCERNED
C
ITIZENS OF
A
CME
T
OWNSHIP V
A
CME
T
OWNSHIP
, No. 127210;
Court of Appeals No. 256414.
P
EOPLE V
B
ERRY
, No. 127214; Court of Appeals No. 256826.
P
EOPLE V
D
EREK
M
IXON
, No. 127215; Court of Appeals No. 247534.
A
CTIONS ON
A
PPLICATIONS
913
P
EOPLE V
F
LICK
, No. 127221. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254194.
P
EOPLE V
O
UELLETTE
, No. 127222. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254068.
M
ICHIGAN
S
TATE
P
OLICE
T
ROOPERS
A
SSOCIATION V
S
TATE OF
M
ICHIGAN
, Nos.
127223-127225; Court of Appeals Nos. 242907, 243948, 245567.
P
EOPLE V
H
UFF
, No. 127227. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254132.
P
EOPLE V
R
OBERT
G
RIFFIN
, No. 127236. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 254433.
P
EOPLE V
B
RENT
G
REEN
, No. 127237. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 254256.
P
EOPLE V
W
OODS
, No. 127248; Court of Appeals No. 247306.
P
EOPLE V
M
C
K
EE
, No. 127252. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 253725.
P
EOPLE V
K
ELLEY
, No. 127253. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 256272.
P
EOPLE V
H
AVENS
, No. 127254; Court of Appeals No. 247670.
P
EOPLE V
R
OUNDS
, No. 127259; Court of Appeals No. 249132.
P
EOPLE V
S
ANDERS
, No. 127260. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256608.
R
UDD V
C
ITY OF
M
USKEGON
, No. 127271; Court of Appeals No. 246958.
P
EOPLE V
W
YATT
, Nos. 127274, 127277. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals Nos. 256669, 256577.
F
ERGUSON V
C
ITY OF
L
INCOLN
P
ARK
, No. 127275; reported below: 264
Mich App 93.
P
EOPLE V
R
ONALD
S
IMPSON
, No. 127281. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 253699.
B
ERMAN V
D
EBORAH
NR
IBITWER &
A
SSOCIATES,
PC, No. 127284; Court of
Appeals No. 246870.
914 472 M
ICHIGAN
R
EPORTS
M
USTAZZA V
C
HEBOYGAN
C
OUNTY
R
OAD
C
OMMISSION
and B
OYD V
C
HEBOYGAN
C
OUNTY
R
OAD
C
OMMISSION
, Nos. 127286, 127287; Court of Appeals Nos.
247234, 247235.
P
EOPLE V
T
ERRY
J
OHNSON
, No. 127288. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
257007.
M
ERLINO V
MGM G
RAND
D
ETROIT,
LLC, No. 127289. Leave to file briefs
amicus curiae is granted. Court of Appeals No. 247165.
P
EOPLE V
W
ILLIAM
J
OHNSON
, No. 127293; Court of Appeals No. 247227.
P
EOPLE V
M
ICHAEL
S
MITH
, No. 127295. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 254723.
C
ULY V
C
ULY
, No. 127296; Court of Appeals No. 255201.
P
EOPLE V
O’N
EAL
, No. 127298; Court of Appeals No. 247133.
P
EOPLE V
B
UFORD
, No. 127300; Court of Appeals No. 246331.
P
EOPLE V
M
C
N
EAL
, No. 127305; Court of Appeals No. 248341.
B
ETTIS V
K
INSLEY
, No. 127309; Court of Appeals No. 246567.
B
ERTLING V
D
EPARTMENT OF
C
ONSUMER &
I
NDUSTRY
S
ERVICES
, No. 127310;
Court of Appeals No. 247887.
P
EOPLE V
L
ITTLES
, No. 127312; Court of Appeals No. 255593.
P
EOPLE V
B
OBBY
M
ARSHALL
, No. 127313; Court of Appeals No. 247795.
P
EOPLE V
F
RANK
M
ILLER
, No. 127314. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 255908.
P
EOPLE V
T
ERRY
, No. 127315; Court of Appeals No. 256005.
P
EOPLE V
G
AMMAGE
, No. 127316; Court of Appeals No. 249196.
P
EOPLE V
O
SSOWSKI
, No. 127317; Court of Appeals No. 246667.
L
ANDETA V
F
ORD
M
OTOR
C
OMPANY
and T
IRADO V
F
ORD
M
OTOR
C
OMPANY
,
Nos. 127319, 127320; Court of Appeals Nos. 247152, 247153.
C
AVANAGH
, J., not participating.
D
EPARTMENT OF
T
REASURY V
R
OSA
B
RANNON,
D
EPARTMENT OF
T
REASURY V
SB
&
BT
RANSPORTATION
U
NLIMITED,
I
NC,
D
EPARTMENT OF
T
REASURY V
S
IBERIA
B
RANNON
, and D
EPARTMENT OF
T
REASURY V
T
ROY
B
RANNON
, Nos. 127322-
127325; Court of Appeals Nos. 247449, 247630, 248689, 252085.
K
ELLY
, J., not participating.
A
CTIONS ON
A
PPLICATIONS
915
R
OSEWOOD
L
IVING
C
ENTER V
B
UREAU OF
H
EALTH
S
YSTEMS
, No. 127326;
Court of Appeals No. 253018.
P
EOPLE V
M
ICHAEL
W
HITE
, No. 127330; Court of Appeals No. 247132.
P
EOPLE V
B
ORUCKI
, No. 127337; Court of Appeals No. 257044.
P
EOPLE V
L
UCEY
, No. 127339. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 253982.
K
ELLY,
J
.
I would remand this case to the Court of Appeals for
rehearing on defendant’s application for leave to appeal before a panel
that does not include the judge who sentenced defendant at the trial
court level.
P
EOPLE V
C
YNAR
, No. 127342; Court of Appeals No. 249270.
A
UTO
-O
WNERS
I
NSURANCE
C
OMPANY V
J
EFFERSON
, No. 127346; Court of
Appeals No. 247579.
P
EOPLE V
H
ARRIS
, No 127351. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254962.
P
EOPLE V
F
ELTON
, No. 127352; Court of Appeals No. 247857.
P
EOPLE V
B
OWEN
, No. 127353; Court of Appeals No. 256537.
P
EOPLE V
P
AYETTE
, No. 127354; Court of Appeals No. 247652.
P
EOPLE V
H
AMM
, No. 127358. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256877.
P
EOPLE V
L
INK
, No. 127360. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 257037.
P
EOPLE V
M
C
C
REERY
, No. 127361; Court of Appeals No. 247348.
P
EOPLE V
S
HULICK
, No. 127363; Court of Appeals No. 247722.
B
UITENHUIS V
M
AC
D
ONALD’S
I
NDUSTRIAL
P
RODUCTS,
I
NC
, No. 127364; Court
of Appeals No. 256091.
P
EOPLE V
G
ULYBAN
, No. 127365; Court of Appeals No. 249191.
P
EOPLE V
K
RUITHOF
, No. 127366; Court of Appeals No. 256809.
P
EOPLE V
K
EANE
, Nos. 127369, 127521; Court of Appeals Nos. 255683,
248541.
P
EOPLE V
D
EMETRIUS
J
OHNSON
, No. 127370; Court of Appeals No.
249211.
P
EOPLE V
C
ORDALL
N
EAL
, No. 127371; Court of Appeals No. 246031.
916 472 M
ICHIGAN
R
EPORTS
C
OLONIAL
S
QUARE
C
OOPERATIVE V
C
ITY OF
A
NN
A
RBOR
, No. 127373;
reported below: 263 Mich App 208.
C
ENSKE V
D
EPARTMENT OF
C
OMMUNITY
H
EALTH
, No. 127375; Court of
Appeals No. 256102.
P
EOPLE V
P
ARAMORE
, No. 127378; Court of Appeals No. 247137.
P
EOPLE V
T
RAVIS
, No. 127382; Court of Appeals No. 249203.
P
EOPLE V
S
YKES
, No. 127395; Court of Appeals No. 245256.
P
EOPLE V
J
AMEAL
T
HOMAS
, No. 127403. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 255948.
P
EOPLE V
D
AVID
B
URNS
, No. 127408; Court of Appeals No. 247842.
G
RATTAN
T
OWNSHIP V
K
ENNEDY
, No. 127410; Court of Appeals No.
254808.
P
EOPLE V
L
UMSDEN
, No. 127411. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255062.
P
EOPLE V
V
ILLEGAS
, No. 127413; Court of Appeals No. 255551.
P
EOPLE V
G
ROSS
, No. 127414; Court of Appeals No. 247858.
A
LSHUBI V
D
AIMLER
C
HRYSLER
C
ORPORATION
, No. 127416; Court of Appeals
No. 255494.
P
EOPLE V
B
EAG
, No. 127426; Court of Appeals No. 247642.
P
EOPLE V
C
HARLES
H
OUSTON
, No. 127435; Court of Appeals No. 247347.
P
EOPLE V
N
ORTHINGTON
, No. 127436. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
258711.
P
EOPLE V
D
ONALD
M
ALONE
, No. 127437. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 255113.
P
EOPLE V
T
RICE
, No. 127447; Court of Appeals No. 247537.
P
EOPLE V
W
ORKMAN
, No. 127448; Court of Appeals No. 247209.
P
EOPLE V
C
ADIEUX
, No. 127449; Court of Appeals No. 256904.
P
EOPLE V
S
ANBORN
, No. 127463. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255777.
P
EOPLE V
S
OTO
, No. 127466; Court of Appeals No. 257437.
A
CTIONS ON
A
PPLICATIONS
917
P
EOPLE V
R
ANES
, Nos. 127480, 127695, 127482. The defendant has
failed to meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals Nos. 256715, 256717, 256718.
P
EOPLE V
Q
UILLER
A
NDERSON
, No. 127492; Court of Appeals No. 258169.
P
EOPLE V
W
ELCHE
, No. 127501. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256508.
P
EOPLE V
P
AUL
W
HITE
, No. 127502. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 256643.
P
EOPLE V
R
ICHARDSON
, No. 127524; Court of Appeals No. 248159.
P
EOPLE V
K
RAMER
, No. 127529. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254067.
P
EOPLE V
C
ONNER
, No. 127551. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 258112.
P
EOPLE V
R
ICKY
G
ARDNER
, No. 127552. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 257137.
P
EOPLE V
H
AMON
, No. 127553; Court of Appeals No. 256900.
P
EOPLE V
C
HRISTOPHER
J
ACKSON
, No. 127579. The defendant has failed
to meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 257833.
P
EOPLE V
K
IRK
S
IMS
, No. 127615. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 257593.
P
EOPLE V
S
HAWN
T
HOMAS
, No. 127647; Court of Appeals No. 247888
(after remand).
P
EOPLE V
D
AVID
S
MITH
, No. 127657; Court of Appeals No. 249866.
P
EOPLE V
D
WAYNE
H
ILL
, No. 127665; Court of Appeals No. 249980.
P
EOPLE V
M
ICHON
H
OUSTON
, No. 127674; Court of Appeals No. 248742.
P
EOPLE V
F
ENWICK
, No. 127684; Court of Appeals No. 249058.
P
EOPLE V
R
EGINALD
T
URNER
, No. 127688; Court of Appeals No. 247599
(on reconsideration).
P
EOPLE V
T
RYGG
, No. 127698; Court of Appeals No. 257239.
P
EOPLE V
O
SWALD
, No. 127707. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 258885.
918 472 M
ICHIGAN
R
EPORTS
P
EOPLE V
S
EEGER
, No. 127709. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256430.
P
EOPLE V
H
RITZ
, No. 127712; Court of Appeals No. 257655.
P
EOPLE V
P
INES
, No. 127722. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255909.
P
EOPLE V
M
C
A
LKICH
, No. 127723; Court of Appeals No. 257953.
P
EOPLE V
K
ASKE
, No. 127724. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255528.
P
EOPLE V
P
ELIKAN
, No. 127738; Court of Appeals No. 258297.
P
EOPLE V
A
RTIBEE
, No. 127740; Court of Appeals No. 251115.
P
EOPLE V
R
ODNEY
S
MITH
, No. 127741; Court of Appeals No. 249136.
P
EOPLE V
R
ANDOLPH
, No. 127743; Court of Appeals No. 248957.
P
EOPLE V
A
LFREDRICK
H
ENDERSON
, No. 127747. The defendant has failed
to meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 257373.
P
EOPLE V
J
AMES
P
ARNELL
, No. 127751; Court of Appeals No. 248611.
P
EOPLE V
G
UNNETT
, No. 127754. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256960.
P
EOPLE V
E
BEL
, No. 127755; Court of Appeals No. 249862.
P
EOPLE V
M
INNER
, No. 127758. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255467.
P
EOPLE V
H
UNT
, No. 127759; Court of Appeals No. 254126.
P
EOPLE V
J
AMES
W
ILLIAMS
, No. 127760; Court of Appeals No. 250226.
P
EOPLE V
M
C
M
URRY
, No. 127764. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256552.
P
EOPLE V
G
RISSOM
, No. 127765; Court of Appeals No. 251427.
P
EOPLE V
W
INSTON
, No. 127766. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 257374.
P
EOPLE V
H
ORTEN
, No. 127768; Court of Appeals No. 257794.
P
EOPLE V
J
AMES
K
ING
, No. 127769; Court of Appeals No. 250331.
A
CTIONS ON
A
PPLICATIONS
919
P
EOPLE V
A
NTUAN
W
ALDEN
, No. 127771; Court of Appeals No. 248543.
P
EOPLE V
H
OAGLIN
, No. 127772. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 257408.
P
EOPLE V
J
EFFRIES
, No. 127776; Court of Appeals No. 249059.
P
EOPLE V
C
RISTINI
, No. 127777. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255040.
P
EOPLE V
R
ONE
, No. 127790. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256099.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
H
ARDESTY
, No. 127807. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 259666.
P
EOPLE V
S
HELTON
, No. 127837. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255625.
P
EOPLE V
A
LEXIS
S
MITH
, No. 127845. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 256620.
P
EOPLE V
P
ARKS
, No. 127862. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255670.
P
EOPLE V
J
EROME
K
ELLY
, No. 127864. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 255691.
P
EOPLE V
G
REGORY
, No. 127891. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256622.
P
EOPLE V
E
STELLE
, No. 127893. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 254986.
P
EOPLE V
K
ESSLER
, No. 127894. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 258250.
P
EOPLE V
H
OLLOWAY
, No. 127905. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255778.
P
EOPLE V
H
ASSON
, No. 127909. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 259518.
920 472 M
ICHIGAN
R
EPORTS
P
EOPLE V
T
AYLOR
, No. 127917. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255586.
P
EOPLE V
M
ARK
A
NDERSON
, No. 127918. The defendant’s motion for
relief from judgment is prohibited by MCR 6.502(G). Court of Appeals
No. 259101.
P
EOPLE V
R
OBERT
H
ARRINGTON
, No. 127928. The defendant has failed to
meet the burden of establishing entitlement to relief under MCR
6.508(D). Court of Appeals No. 255571.
P
EOPLE V
C
ASWELL
, No. 127929. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256980.
P
EOPLE V
K
EVIN
D
AVIS
, No. 127942. The defendant’s motion for relief
from judgment is prohibited by MCR 6.502(G). Court of Appeals No.
259245.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
J
OSEPH
J
OHNSON
, No. 127958. The defendant’s motion for
relief from judgment is prohibited by MCR 6.502(G). Court of Appeals
No. 258229.
K
ELLY,
J
.
I would grant leave to appeal.
P
EOPLE V
R
HEA
, No. 127959. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255456.
P
EOPLE V
R
YAN
, No. 127960. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 257182.
P
EOPLE V
R
ODERICK
L
EWIS
, No. 127961. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 254606.
P
EOPLE V
K
OSS
, No. 127962. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255019.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
K
IDDER
, No. 128012. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256981.
P
EOPLE V
E
RDMAN
, No. 128070. The defendant’s motion for relief from
judgment is prohibited by MCR 6.502(G). Court of Appeals No. 260092.
P
EOPLE OF
W
EST
B
LOOMFIELD
T
OWNSHIP V
M
ONTGOMERY
, No. 128080;
Court of Appeals No. 257407.
P
EOPLE V
Y
EAGER
, No. 128153; Court of Appeals No. 256104.
A
CTIONS ON
A
PPLICATIONS
921
B
ERTLING V
D
EPARTMENT OF
L
ABOR AND
E
CONOMIC
G
ROWTH
D
IRECTOR
, No.
128322; Court of Appeals No. 257990.
P
EOPLE V
I
SH
, No. 128483. The defendant has failed to meet the burden
of establishing entitlement to relief under MCR 6.508(D). Court of
Appeals No. 260095.
P
EOPLE V
C
RAIG
B
ROWN
No 2, No. 128572; Court of Appeals No. 254476.
Interlocutory Appeals
Leave to Appeal Denied May 31, 2005:
L
ITTLE V
S
WANSON
F
UNERAL
H
OMES,
I
NC
, No. 127051; Court of Appeals
No. 254119.
P
EOPLE V
M
ONTGOMERY
, Nos. 128063, 128081; Court of Appeals Nos.
260245, 260244.
Reconsideration Denied May 31, 2005:
F
INNILA V
A
RKIN
, Nos. 126297, 126298. Leave to appeal denied at 472
Mich 851. Court of Appeals Nos. 243371, 244155.
P
EOPLE V
P
IETRO
T
ERRELL
, No. 126397. Leave to appeal denied at 472
Mich 851. Court of Appeals No. 243097.
K
ELLY
, J. I would grant reconsideration and, on reconsideration, would
grant leave to appeal.
P
EOPLE V
J
ACOBS
, No. 126430. Leave to appeal denied at 472 Mich
852. Court of Appeals No. 254499.
V
ASQUEZ V
V
ASQUEZ
, No. 126472. Leave to appeal denied at 472 Mich
861. Court of Appeals No. 244222.
P
EOPLE V
R
ANDY
P
ATTERSON
, No. 126359. Leave to appeal denied at 472
Mich 865. Court of Appeals No. 254272.
P
EOPLE V
M
ALACHI
W
ASHINGTON
, No. 126799. Leave to appeal denied at
472 Mich 866. Court of Appeals No. 247713.
S
T
J
OSEPH
M
ERCY
H
OSPITAL V
T
HOMAS
, No. 126826. Leave to appeal
denied at 472 Mich 867. Court of Appeals No. 253567.
D
UNLAP V
W
AYNE
C
IRCUIT
J
UDGE
, No. 126850. Leave to appeal denied at
472 Mich 867. Court of Appeals No. 255334.
Summary Dispositions June 2, 2005:
O
LSON V
O
LSON
, No. 126943. In lieu of granting leave to appeal, the case
is remanded to the Court of Appeals for consideration as on leave
granted. MCR 7.302(G)(1). Jurisdiction is not retained. Court of Appeals
No. 254919.
922 472 M
ICHIGAN
R
EPORTS
O
CWEN
F
EDERAL
B
ANK,
FSB v I
NTERNATIONAL
C
HRISTIAN
M
USIC
M
INISTRY,
I
NC,
No. 127171. In lieu of granting leave to appeal, the judgment of the
Court of Appeals that found that the order of the St. Clair Circuit Court
quieting title violated MCR 2.613(B) is reversed, and the case is re-
manded to that Court to consider defendants’ remaining claims. MCR
7.302(G)(1). Plaintiff was not a party to the prior action in the Wayne
Circuit Court, and that proceeding did not determine plaintiff’s right to
the property. As a result, the St. Clair Circuit Court’s order did not have
the effect of setting aside or rendering “null and void” the order of the
Wayne Circuit Court. Rather, under the facts of this case, the St. Clair
Circuit Court had plenary authority pursuant to MCL 600.2932 to vest
title in the plaintiff. Court of Appeals No. 249081.
P
EOPLE V
H
UDGINS
, No. 127193. In lieu of granting leave to appeal, the
case is remanded to the Wayne Circuit Court for correction of the
judgment of sentence to reflect that defendant was convicted of receiving
and concealing stolen property valued at over $20,000, MCL
750.535(2)(a), consistent with the record of the proceedings at trial and
the sentencing information report. See MCR 6.429(A). MCR 7.302(G)(1).
In all other respects, the application for leave to appeal is denied.
Jurisdiction is not retained. Court of Appeals No. 246808.
C
AVANAGH
and K
ELLY
, JJ. We would grant leave to appeal.
Leave to Appeal Denied June 2, 2005:
M
ITCHELL
C
ORPORATION OF
O
WOSSO V
D
EPARTMENT OF
C
ONSUMER AND
I
NDUS-
TRY
S
ERVICES
, No. 126944; reported below: 263 Mich App 270.
C
AVANAGH
and K
ELLY
, JJ. We would grant leave to appeal.
B
ERMUDEZ V
L
EE
, Nos. 127090, 127092; Court of Appeals No. 249609.
C
AVANAGH
and K
ELLY
, JJ. We would grant leave to appeal.
H
AYLEY V
A
LLSTATE
I
NSURANCE
C
OMPANY
, No. 127102; reported below:
262 Mich App 571.
C
AVANAGH
, J., not participating.
K
ELLY
, J. I would reverse for reasons stated in the Court of Appeals
dissent.
H
UGHES V
L
AKE
S
UPERIOR &
I
SHPEMING
R
AILROAD
C
OMPANY
, No. 127135;
reported below: 263 Mich App 417.
G
ROSS V
L
ANDIN
, No. 127174; Court of Appeals No. 246282.
C
ORRIGAN,
J
.
I would reverse, adopting Judge K
ELLY
’s dissent.
P
EOPLE V
S
CHAUER
, No. 127186; Court of Appeals No. 247721.
K
ELLY,
J
.
I would hold this case in abeyance for People v Drohan,lvgtd
472 Mich 881 (2005).
P
EOPLE V
E
LY
, No. 127229; Court of Appeals No. 255293.
C
AVANAGH
and K
ELLY
, JJ. We would hold this case in abeyance for
Halbert v Michigan, 545 US ___; 125 S Ct 823; 160 L Ed 2d 609 (2005).
A
CTIONS ON
A
PPLICATIONS
923
Summary Disposition June 3, 2005:
P
EOPLE V
D
ECARLOSE
S
MITH,
No. 126837. In lieu of granting leave to
appeal, the case is remanded to the Wayne Circuit Court to determine
whether there was a violation of MCL 780.131, MCL 780.133, or MCR
6.004(D). MCR 7.302(G)(1). In the course of making this determination,
the Wayne Circuit Court shall also determine the following underlying
facts:
(1) the date on which defendant was taken into custody by the
Michigan Department of Corrections in connection with the first
charge of assault with intent to murder that was brought in
Washtenaw County;
(2) whether and on what date the Department of Corrections
received notice of the second pending charge against defendant of
assault with intent to murder that was brought in Wayne County;
(3) whether and on what date the Department of Corrections
delivered, by certified mail, to the Wayne County Prosecutor
written notice of defendant’s place of imprisonment and request
for final disposition of the pending charge;
(4) whether the request was accompanied by a statement setting
forth the term of commitment under which defendant was being
held, the time already served, the time remaining to be served on
the first sentence, the amount of good time or disciplinary credits
earned, the time of parole eligibility of the prisoner, and any
decisions of the parole board relating to defendant;
(5) whether, on what date, and from whom the prosecutor
received the written notice and a request for final disposition of the
pending warrant, indictment, information, or complaint;
(6) whether the prosecutor acted in good faith during the
180-day period to proceed promptly to trial;
(7) whether there were any adjournments of the lower court
proceedings, which party requested the adjournment(s), and
whether there were any objections to the adjournment(s); and
(8) any other facts the parties deem necessary in determining
whether the above statutes and court rule were violated.
The parties shall provide the Wayne Circuit Court with any written
documentation in their possession that establishes these underlying facts,
and this documentation shall be made part of the lower court record. If the
parties cannot agree with regard to these underlying facts, the Wayne
Circuit Court shall conduct any additional proceedings or evidentiary
hearings necessary. The Wayne Circuit Court shall issue its opinion within
fifty-six days of the date of this order. Jurisdiction is retained. Court of
Appeals No. 254724.
Leave to Appeal Granted June 10, 2005:
R
ADELJAK V
D
AIMLER
C
HRYSLER
C
ORPORATION
, No. 127679. The parties are
924 472 M
ICHIGAN
R
EPORTS
to include among the issues to be briefed: (1) whether the public interest
factors of the forum non conveniens doctrine set forth in Cray v Gen
Motors Corp, 389 Mich 382, 396 (1973), should be revised or modified;
and (2) whether, even if another more appropriate forum exists, a
Michigan court may not resist jurisdiction unless its own forum is
“seriously inconvenient.” See Robey v Ford Motor Co, 155 Mich App 643,
645 (1986). The Michigan Trial Lawyers Association, the Michigan
Defense Trial Counsel, the Michigan Chamber of Commerce, and the
Michigan Manufacturers Association are invited to file briefs amicus
curiae. Other persons or groups interested in the determination of the
issues presented in this case may move the Court for permission to file
briefs amicus curiae. Court of Appeals No. 247781.
Leave to Appeal Denied June 10, 2005:
B
ELLVILLE V
C
ONSUMERS
E
NERGY
C
OMPANY
, No. 127153; Court of Appeals
No. 243179.
C
AVANAGH,
J
.(
dissenting). This case raises a number of significant
issues, and I would grant leave to consider them. In 1994, plaintiffs,
owners and operators of a dairy farm, were concerned about the health of
their dairy herd. They requested that defendant Consumers Energy
Company come to their farm and conduct testing to determine if
electrical problems were negatively affecting the herd.
Defendant conducted testing in 1994 and told plaintiffs that there
were no electrical problems. Defendant conducted subsequent testing in
1997 and twice in 1998, and continued to tell plaintiffs that there were no
electrical problems. After plaintiffs ruled out other possible causes by
consulting with numerous experts about possible nutritional deficiencies
and medical problems, plaintiffs hired their own electrical experts in
1999 and 2000. These experts determined that defendant’s electrical
lines were the cause of the problems with the dairy herd.
Defendant argues that plaintiffs’ claims are barred by the statute of
limitations because if plaintiffs disagreed with defendant’s assessment,
plaintiffs should have hired their own experts sooner. Defendant also
does not believe that the discovery rule is applicable. In essence,
defendant faults plaintiffs for believing that defendant was properly
conducting the testing and accurately conveying the information. But
plaintiffs had no reason not to believe defendant—a company whose
purpose is to provide utility services to the public—until other possible
causes were subsequently eliminated. Defendant faults plaintiffs for not
discovering that electrical problems were the source of the injuries to the
herd when defendant itself was repeatedly unable to do so. However, I do
not believe that it is inherently unreasonable for a customer to believe
the repeated word of an electrical utility company. Therefore, whether
the statute of limitations bars plaintiffs’ claims and whether the discov-
ery rule applies to these claims are jurisprudentially significant issues
that should be addressed.
Further, I disagree that plaintiffs have not established a question of
material fact about whether they reasonably relied on defendant’s
alleged misrepresentations. When defendant repeatedly told plaintiffs
A
CTIONS ON
A
PPLICATIONS
925
that electrical problems were not the cause of problems with the dairy
herd, plaintiffs looked to other possible causes. They did so on the basis of
the representations made by defendant that electricity was not the source
of the problems. Defendant also attempts to support its position by
arguing that plaintiffs continued to operate their dairy farm for 1
1
/2 years
after learning of the electrical problems. However, it is unreasonable to
expect that plaintiffs would be able to stop farming, shut down their
business, and pack up their dairy herd the moment they learned that
defendant had misrepresented that there were no electrical problems on
the farm. Accordingly, I would grant leave to appeal.
W
EAVER
and K
ELLY,
JJ. We join the statement of Justice C
AVANAGH
.
Interlocutory Appeal
Leave to Appeal Denied June 10, 2005:
B
RAGAN V
S
YMANZIK
, No. 126993; reported below: 263 Mich App 324.
Summary Dispositions June 16, 2005:
P
EOPLE V
F
LOYD
, No. 127228. In lieu of granting leave to appeal,
defendant’s sentence is vacated, and the case is remanded to the Kent
Circuit Court for resentencing. MCR 7.302(G)(1). Contrary to the holding
of the circuit court, MCL 769.34(4)(b) was effective in April 1999, when
defendant was sentenced. That statute required the circuit court to
impose a sentence of life probation absent a departure. On remand, the
circuit court shall either impose a sentence of life probation, or articulate
on the record a substantial and compelling reason for departing from the
sentencing guidelines range in accordance with People v Babcock, 469
Mich 247 (2003). In all other respects, the application for leave to appeal
is denied. Jurisdiction is not retained. Court of Appeals No. 254898.
L
AURA V
D
AIMLER
C
HRYSLER
C
ORPORATION
, No. 128155. In lieu of granting
leave to appeal, the case is remanded to the Court of Appeals for
consideration as on leave granted. MCR 7.302(G)(1). The proceedings in
the Washtenaw Circuit Court are stayed pending the completion of this
appeal. On motion of a party or on its own motion, the Court of Appeals
may modify, set aside, or place conditions on the stay if it appears that the
appeal is not being vigorously prosecuted or if other appropriate grounds
appear. Jurisdiction is not retained. Court of Appeals No. 257297.
Leave to Appeal Denied June 16, 2005:
P
EOPLE V
D
AVID
K
ING
, No. 127016. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 255064.
K
ELLY
, J. I would grant leave to appeal.
926 472 M
ICHIGAN
R
EPORTS
P
EOPLE V
G
LADYS
W
ILSON
, No. 127131. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 245875.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
P
EOPLE V
E
RIC
S
TEWART
, No. 127143; Court of Appeals No. 246334.
C
AVANAGH
, J. I would grant leave to appeal.
P
EOPLE V
C
ORTEZ
D
AVIS
, No. 127283. The defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).
Court of Appeals No. 246847.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
B
RAXTON
, No. 127401; Court of Appeals No. 232830.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
S
ULLIVAN
, No. 127532. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256829.
K
ELLY
, J. I would grant leave to appeal.
O
USLEY V
M
C
L
AREN
, No. 127692; reported below: 264 Mich App 486.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
P
EOPLE V
F
USON
, No. 127881; Court of Appeals No. 259349.
K
ELLY
, J. I would grant leave to appeal.
T
ERRASI V
H
AQ
and T
ERRASI V
T
EJURA,
Nos. 128285, 128291; Court of
Appeals No. 258561.
T
ERRASI V
U
NIVERSITY OF
M
ICHIGAN
B
OARD OF
R
EGENTS
, No. 128286; Court
of Appeals No. 258562.
Interlocutory Appeal
Leave to Appeal Denied June 16, 2005:
M
ULKEY V
K
UZMA,
No. 128134; Court of Appeals No. 259625.
Leave to Appeal Granted June 17, 2005:
P
EOPLE V
M
ILESKI
, No. 127457. The parties are to include among the
issues to be briefed: (1) whether each of the victim’s hearsay statements
was “testimonial” in nature and thus inadmissible under the rule of
Crawford v Washington, 541 US 36 (2004); (2) if so, whether Crawford
should be applied retroactively; (3) if any of the statements are nontes-
timonial under Crawford, whether they were admissible as excited
utterances pursuant to MRE 803(2); and (4) if any of the statements are
testimonial under Crawford, whether their admission was harmless
beyond a reasonable doubt. The case is to be argued and submitted to the
A
CTIONS ON
A
PPLICATIONS
927
Court with People v Walker, No. 128515. The Criminal Defense Attorneys
of Michigan and the Prosecuting Attorneys Association of Michigan are
invited to file briefs amicus curiae. Other persons or groups interested in
the determination of the questions presented in this case may move the
Court for permission to file briefs amicus curiae. Court of Appeals No.
248038.
H
ERALD
C
OMPANY,
I
NC V
E
ASTERN
M
ICHIGAN
U
NIVERSITY
B
OARD OF
R
EGENTS
,
No. 128263. The parties shall include among the issues to be briefed: (1)
whether the Court of Appeals correctly applied the appropriate standard
of review; (2) whether the Washtenaw Circuit Court clearly erred in
applying the § 13(1)(m) Freedom of Information Act exemption, MCL
15.243(1)(m), to the public record in question; and (3) whether purely
factual materials, if any, contained within the public record were properly
included within the scope of the exemption. The Detroit Free Press’s
motions for leave to file a brief amicus curiae and for immediate
consideration of that motion are also granted. Reported below: 265 Mich
App 185.
P
EOPLE V
A
LVIN
W
ALKER
, No. 128515. The parties are to include among
the issues to be briefed: (1) whether each of the victim’s hearsay
statements was “testimonial” in nature and thus inadmissible under the
rule of Crawford v Washington, 541 US 36 (2004); (2) if so, whether
Crawford should be applied retroactively; (3) if any of the statements are
nontestimonial under Crawford, whether they were admissible as excited
utterances pursuant to MRE 803(2); and (4) if any of the statements are
testimonial under Crawford, whether their admission was harmless
beyond a reasonable doubt. The Oakland Circuit Court, in accordance
with Administrative Order No. 2003-03, is to determine whether the
defendant is indigent and, if so, to appoint counsel to represent the
defendant in this Court. The case is to be argued and submitted to the
Court with People v Mileski, No. 127457. The Criminal Defense Attorneys
of Michigan and the Prosecuting Attorneys Association of Michigan are
invited to file briefs amicus curiae. Other persons or groups interested in
the determination of the questions presented in this case may move the
Court for permission to file briefs amicus curiae. Reported below: 265
Mich App 530.
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal June 17, 2005:
K
ROCHMAL V
P
AUL
R
EVERE
L
IFE
I
NSURANCE
C
OMPANY
, No. 126997. Pursu-
ant to MCR 7.302(G)(1), the clerk is to schedule oral argument on
whether to grant the application or take other peremptory action
permitted by MCR 7.302(G)(1). The parties shall include among the
issues to be addressed at oral argument whether Guiles v Univ of
Michigan Bd of Regents, 193 Mich App 39 (1992), accurately states the
law. The parties may file supplemental briefs within 28 days of the date
928 472 M
ICHIGAN
R
EPORTS
of this order, but they should avoid submitting mere restatements of
arguments made in application papers. Reported below: 262 Mich App
115.
B
ENTFIELD V
B
RANDON’S
L
ANDING
B
OAT
B
AR
, No. 127515. Pursuant to
MCR 7.302(G)(1), the clerk is to schedule oral argument on whether to
grant the application or take other peremptory action permitted by MCR
7.302(G)(1). The parties shall include among the issues to be addressed at
oral argument the standard of review when a trial court denies a motion
for reconsideration that alleges a new cause of action that was available
prior to the court’s original ruling. The parties may file supplemental
briefs within 28 days of the date of this order, but they should avoid
submitting mere restatements of arguments made in application papers.
Court of Appeals No. 248795.
Summary Dispositions June 17, 2005:
K
ENNY V
K
AATZ
F
UNERAL
H
OME,
I
NC
, No. 127472. In lieu of granting
leave to appeal, the decision of the Court of Appeals is reversed for the
reasons stated in the dissenting opinion. MCR 7.302(G)(1) Reported
below: 264 Mich App 99.
C
AVANAGH
and K
ELLY
, JJ. We would grant leave to appeal.
W
YATT V
O
AKWOOD
H
OSPITAL AND
M
EDICAL
C
ENTERS
, Nos. 128276, 128288,
128301. In lieu of granting leave to appeal, the case is remanded to the
Court of Appeals for consideration, as on leave granted, of the question
whether the statute of limitations bars an action from proceeding where
the complaint was filed more than two years after the original letters of
authority and before the subsequent letters of authority were issued.
MCR 7.302(G)(1). That Court is to give the holding of Waltz v Wyse, 469
Mich 642 (2004), full retroactive application. Jurisdiction is not retained.
Court of Appeals Nos. 258235, 258237, 258241.
E
VANS V
H
ALLAL
, No. 128289. In lieu of granting leave to appeal, the
case is remanded to the Court of Appeals for consideration, as on leave
granted, of the question whether the statute of limitations bars an action
from proceeding where the complaint was filed more than two years after
the original letters of authority and before the subsequent letters of
authority were issued. MCR 7.302(G)(1). That Court is to give the
holding of Waltz v Wyse, 469 Mich 642 (2004), full retroactive application.
The motion to stay is denied as moot, without prejudice to defendant
seeking a motion for stay in the trial court and, if necessary, in the Court
of Appeals. Jurisdiction is not retained. Court of Appeals No. 259580.
F
ORSYTH V
H
OPPER
, No. 128433. In lieu of granting leave to appeal, the
case is remanded to the Court of Appeals for consideration as on leave
granted. MCR 7.302(G)(1). That Court is to give the holding of Waltz v
Wyse, 469 Mich 642 (2004), full retroactive application. The April 29,
2005, order granting the motion for stay is vacated, without prejudice to
defendants seeking a stay in the trial court and, if necessary, the Court of
Appeals. Jurisdiction is not retained. Court of Appeals No. 257907.
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CTIONS ON
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929
Leave to Appeal Denied June 17, 2005:
P
EOPLE V
G
REGORY
M
ARTIN
, No. 126937; Court of Appeals No. 248158.
M
ARKMAN,
J
.
I respectfully dissent. Because I believe the record
contains insufficient evidence to establish the premeditation and delib-
eration necessary to satisfy the elements of first-degree murder, I would
vacate defendant’s conviction of first-degree murder and remand to the
trial court for the entry of a judgment of conviction of second-degree
murder.
Defendant initially gave two exculpatory statements to the police. In
his third statement to the police, defendant first stated that his father
came home “ranting and raving” while defendant was on the telephone
with his girlfriend. He asked his father a question, and his father
responded by throwing a pan that hit defendant in the head. Defendant
claimed his father then asked for the shotgun, in case someone tried to
follow him into the apartment. Defendant reached under the couch to
retrieve it, thought to himself that he better unload it, and began
removing the shells. Defendant claimed he had difficulty removing the
last shell, and, in his attempt to remove it, the gun discharged, hitting his
father. Defendant sat down on the couch for what he thought was only a
minute, but was in reality over an hour (defendant claimed to have
blacked out, having consumed a pint of vodka). It was then that he called
911. Defendant’s statement then concludes with the following series of
responses, which recant his claim that the shooting occurred while he
was attempting to remove the last shell:
Q. Mr. Martin, did you shoot your father?
A. Yes.
Q. Mr. Martin, did I force you to say that?
A. No.
Q. Anything else you can tell me?
A. No, I’m sorry, I was mad, I was pissed off.
Q. What do you mean you were pissed off?
A. I was mad and I shot him.
Q. So you did not try to take the rounds out of the shotgun?
A. No, I shot him because I was mad.
Q. So this was not an accident?
A. No, I got the shotgun from under the couch and I shot
him. . . .
Q. Were any blows thrown from hands used?
A. No.
Q. Is there anything else?
A. No, I shot him.
930 472 M
ICHIGAN
R
EPORTS
The entirety of this third statement was read into the record at trial.
In support of a finding of premeditation, the Court of Appeals made a
number of findings that are not supported by the record. I will address
them individually:
[1] In this case, the evidence showed that defendant and his
father had a prior relationship characterized by his father’s
frequent rantings and ravings. This evidence supports an infer-
ence of premeditation and deliberation insofar that it shows that
defendant had a motive to kill his father. [Slip op at 2.]
However, the record does not reflect that these alleged rantings and
ravings were directed at defendant; rather, the record shows that his father
tended to go off on rants about others. Specifically, defendant’s statements
indicate that his father “sometimes...just pulls stuff out of the air” and
that on this occasion, his father was ranting about women drivers and the
stupidity of one of his father’s friends. A review of defendant’s testimony
at trial reveals no indication of frequent rantings and ravings that
characterized the victim’s relationship with defendant. As such, the alleged
rantings and ravings of his father provided defendant with no motive for
the killing, and thus do not support in any way a finding of premeditation.
While defendant may have thought to himself “here we go again” when his
father began to rant on the night in question, defendant’s subvocalized
thought in this regard is hardly sufficient to constitute evidence of
premeditation.
[2] Regarding the circumstances of the killing, defendant
admitted that he hid the gun under the couch where he was lying
immediately before the shooting. [Slip op at 2.]
However, the record contains no testimony or evidence to support such a
finding. Rather, in defendant’s first statement, he responded to the
question of where the gun had come from by saying, “I had it hidden and
emptied under the couch for safety purposes.” The statement did not
indicate that the “safety” he sought was from his father, as opposed to
general safety concerns that would motivate one to keep a gun in one’s
home. Nothing in the record suggests that defendant hid the gun as part
of any premeditated plan to kill his father.
Nor does the record reflect when defendant hid the gun under the
couch. Testimony that defendant hid the gun under the couch shortly
before his father arrived home (as opposed to weeks or even months
before the shooting) would tend to support an inference of premeditation;
however, the record contains no mention of when the gun was placed
under the couch. As such, no inference of premeditation can arise by
virtue of the fact that the shotgun had been placed under the couch at
some indefinite time before the shooting.
A
CTIONS ON
A
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931
[3] The evidence also permitted an inference that a sufficient
amount of time elapsed before defendant reached under the couch
to get the gun and, thus, had sufficient time to contemplate his
actions and take a second look. [Slip op at 2.]
All three of defendant’s statements to the police, including the inculpatory
third statement, indicate that defendant withdrew the gun from under the
couch in response to his father’s demand that he produce it. To show
first-degree premeditated murder, “[s]ome time span between [the] initial
homicidal intent and ultimate action is necessary to establish premedita-
tion and deliberation.” People v Gonzalez, 468 Mich 636, 641 (2003)
(internal citations and quotations omitted). Here, there is no evidence of
the duration of any time span between those two events. In fact, the record
does not identify any event, other than the victim’s demand that defendant
give him the gun, from which to measure the time between formation of
intent and action.
[4] Defendant’s post-homicide conduct also supports a finding of
premeditation and deliberation. The evidence permitted the jury to
conclude that defendant attempted to conceal the crime by deliber-
ately breaking the gun and then fabricating a story about an
accidental shooting. An attempt to conceal a killing may support a
finding of premeditation and deliberation. [Slip op at 2.]
However, an attempt to conceal is only indicative of premeditation where
the attempt to conceal comes before the killing, or where other evidence
suggests that the defendant had an opportunity to take a second look. See
Gonzalez, supra; see also People v Johnson, 460 Mich 720 (1999) (on which
the Gonzalez Court relied). Otherwise, postkilling concealment is equally
consistent with an effort to disguise a second-degree murder.
Finally, even assuming defendant did in fact shoot his father because
he was “mad,” the statement still fails to give rise to an inference of
premeditation. Rather, such a statement is inconsistent with the required
showing that defendant be undisturbed by hot blood.
In light of the misunderstanding of the record by the Court of
Appeals, and the lack of evidence that supports a finding of premedita-
tion, I would vacate defendant’s conviction of first-degree murder and
remand the case to the trial court for the entry of a judgment of
conviction of second-degree murder.
C
AVANAGH
and K
ELLY
, JJ. We join the statement of Justice M
ARKMAN
.
P
EOPLE V
T
YREE
W
ILLIAMS
, No. 127276; Court of Appeals No. 246927.
Y
OUNG,
J
.
I concur in the denial because the “waiver break” in this case
occurred before the issuance of People v Ellis, 468 Mich 25 (2003), which
put the judiciary on notice that a “waiver break” is improper.
P
EOPLE V
F
REEMAN
, No. 127331; Court of Appeals No. 247396.
932 472 M
ICHIGAN
R
EPORTS
Y
OUNG,
J
.
I concur in the denial because the “waiver break” in this case
occurred before the issuance of People v Ellis, 468 Mich 25 (2003), which
put the judiciary on notice that a “waiver break” is improper.
P
EOPLE V
K
UJIK
, No. 128200; Court of Appeals No. 252766.
M
ARKMAN
, J. I respectfully dissent. Our state’s perjury and witness
intimidation laws are indispensable to the maintenance of the integrity of
the justice system. In this case, I believe that Michigan’s principal
witness intimidation law has been misinterpreted by the Court of
Appeals, and weakened in this process. I would reverse that decision and
reinstate defendant’s conviction.
Defendant, a high school student, threatened her friend after the
friend was subpoenaed to testify in a criminal proceeding against
defendant. Defendant was charged with witness intimidation (retaliating
against a witness) under MCL 750.122(8), and the jury was instructed
that the statute applied regardless of whether an official proceeding had
yet taken place. The jury convicted defendant. The Court of Appeals
reversed, holding that the statute only applied to threats made after a
witness has testified, not to threats made to prospective witnesses.
MCL 750.122(8) provides:
A person who retaliates, attempts to retaliate, or threatens to
retaliate against another person for having been a witness in an
official proceeding is guilty of a felony punishable by imprisonment
for not more than 10 years or a fine of not more than $20,000.00, or
both. As used in this subsection, “retaliate” means to do any of the
following:
(a) Commit or attempt to commit a crime against any person.
(b) Threaten to kill or injure any person or threaten to cause
property damage. [Emphasis added.]
The critical question is what effect should be given to the phrase “threat-
ens to retaliate against another person for having been a witness in an
official proceeding.”
The Court of Appeals majority noted that the challenged jury instruc-
tion generally complied with§9ofthestatute, which states:
This section applies regardless of whether an official proceed-
ing actually takes place or is pending or whether the individual has
been subpoenaed or otherwise ordered to appear at the official
proceeding if the person knows or has reason to know the other
person could be a witness at any official proceeding. [MCL
750.122(9) (emphasis added).]
However, the Court determined that § 9 did not apply to § 8, because
a person who “could be” a witness is not a person “having been” a
witness. In determining that § 8 only applied to threats made after a
A
CTIONS ON
A
PPLICATIONS
933
witness has testified, the majority noted that prospective witnesses are
covered by§3ofthestatute,whichstates:
A person shall not do any of the following by threat or
intimidation:
(a) Discourage or attempt to discourage any individual from
attending a present or future official proceeding as a witness,
testifying at a present or future official proceeding, or giving
information at a present or future official proceeding.
(b) Influence or attempt to influence testimony at a present or
future official proceeding.
(c) Encourage or attempt to encourage any individual to avoid
legal process, to withhold testimony, or to testify falsely in a
present or future official proceeding. [MCL 750.122(3) (emphasis
added).]
The Court concluded that, because § 3 contained the “present or
future” language, while § 8 omitted such language, the latter omission
must be intentional. Further, the majority found that applying§8to
threats made against prospective witnesses would nullify much of
§ 3. Instead, the majority decided that limiting§8tothreats made after
the witness has testified was in keeping with the plain language of the
provisions.
The dissent, meanwhile, argued that §§ 8 and 9 were not incompat-
ible, because the phrase “threatens to retaliate against another person
for having been a witness in an official proceeding”
can refer to the witness’ status not at the time the threat is
communicated, but at the future time when the threat will be
carried out. The statute penalizes threats against a person “for
having been a witness in an official proceeding,” and this language
encompasses a situation in which future harm is threatened against
a person in anticipation of that person testifying in an official
proceeding. [Slip dissent at 2.]
Consequently, the dissent concluded that §§ 8 and 9 could be harmonized.
While both interpretations are plausible, I believe the dissent has the
better argument. Reliance by the Court of Appeals on an apparent
conflict between §§ 3 and 8 was inapt, given the express mandate of § 9
that MCL 750.122 as a whole “applies regardless of whether...the
individual has been subpoenaed or otherwise ordered to appear at the
official proceeding if the person knows or has reason to know the other
person could be a witness at any official proceeding.” Before considering
whether a conflict might be implied by the interplay of §§ 3 and 8, the
Court should first have looked at § 9, which makes clear that MCL
750.122 as a whole applies to prospective witnesses.
The inclusion in § 8 of threats to retaliate, in addition to retaliation
and attempted retaliation, clearly contemplates the act of threatening to
934 472 M
ICHIGAN
R
EPORTS
retaliate against a person for being a witness in the future, after the
witness has testified in an official proceeding.
1
The language chosen by
the Legislature includes the situation in which future harm is threatened
against a person in anticipation of that person testifying in an official
proceeding.
Contrary to the findings of the Court of Appeals majority, this reading
does not nullify § 3, because that provision speaks only to “threat or
intimidation,”while§8refers specifically to retaliation done by means of
crime or attempted crime against a person, or threats of death, injury, or
property damage. While at first glance one might reasonably associate
“threat or intimidation” with “crime,” this is not necessarily the case. For
this logic to hold, one would have to accept that the types of harm
described in§8describe the entire universe of actions that qualify as a
“threat or intimidation” under § 3. This is simply not the case.
Imagine, for instance, the at-will employer who vows to discharge an
employee if the employee testifies. This would clearly be a “threat,” but
not a crime. Or, imagine a situation where, as here, the parties are high
school students; the threat “I’ll make your life miserable at school” may
be intimidating, but it is not a threat to injure a person or to damage
property. My point is simply that conduct prohibited by§3willnot
necessarily be prohibited by § 8; therefore, the Court of Appeals majority
erred in concluding that the application of § 8 to threats made against
prospective witnesses would “nullify” § 3.
Because I believe that the Court of Appeals majority has misinter-
preted the witness intimidation law of our state, I would reverse its
decision.
In re P
EREZ
(F
AMILY
I
NDEPENDENCE
A
GENCY V
S
ARA
V
AUGHAN
)andIn re
V
AUGHAN
(F
AMILY
I
NDEPENDENCE
A
GENCY V
R
OOD
V
AUGHAN
), Nos. 128845,
128846; Court of Appeals Nos. 257300, 257529.
Leave to Appeal Denied June 24, 2005:
P
EOPLE V
G
ERALD
S
MITH
, No. 127250. Despite discovery violations, the
Court is not convinced that a reasonable probability of a different result
would exist had there been compliance with the discovery order. See
People v Fink, 456 Mich 449 (1998). Court of Appeals No. 246931.
1
Also, as a matter of logic, what sense would it make for a defendant
to threaten harm in retaliation against someone who has already testi-
fied? Such a defendant would simply just commit the harm. In other
words, a threat is typically a conditional proposition: “If you do X, then
I will be forced to retaliate by doing Y.” Once the person threatened has
actually done X, the condition is satisfied, and the threat is, in a sense,
executory. As such, it would make no sense for a defendant to threaten to
harm a witness who has already testified; the defendant would simply
proceed with the harm.
A
CTIONS ON
A
PPLICATIONS
935
K
ELLY,
J. (concurring). I agree with the decision to deny defendant’s
application for leave to appeal. I write separately to express my concern
over the failure of the prosecution and the police to comply with the trial
court’s orders regarding discovery and production of evidence.
Before trial, the court issued a discovery order requiring the prosecu-
tion to provide information in its possession to defense counsel. See MCR
6.201. However, the prosecution failed to produce a copy of a statement
of one of the identifying witnesses, a pair of shorts worn by one of the
victims, records of a photographic lineup, photographs of bullet damage
to a vehicle, and records of repairs to the vehicle.
Defense counsel also obtained an order requiring defendant to par-
ticipate in a lineup before three witnesses. The court entered the order
relying on People v Anderson,
1
which held that a corporeal lineup is
required if a defendant’s identity is in issue. However, only two identi-
fying witnesses attended the lineups. Initially they were shown photo-
graphs, then given the opportunity to identify defendant at a corporeal
lineup in which he wore the same clothing he had worn in the photo-
graph. Defense counsel argued that the failure to initially conduct a
corporeal lineup was another violation of the court order. Moreover, it
tainted the witnesses’ identification of defendant by allowing them to see
him repeatedly.
Because of the failures by the police and various prosecutors to comply
with the discovery order, the court ordered the prosecutor at trial not to
introduce evidence of the shorts. Nonetheless, the prosecutor asked the
victim how close the shots had been to him and what they had struck on
him. In response to defense counsel’s objection, the court warned the
prosecutor not to continue attempting to circumvent its orders by
eliciting testimony about the shorts.
Additionally, the prosecutor introduced other evidence that had not
been provided to defense counsel. In response to defense counsel’s
objections, the court reduced three of the charges against defendant to
one count of assault with intent to do great bodily harm less than murder
and two counts of felonious assault.
Prosecutors are officers of the court. MCR 9.103(A). They are obli-
gated to make reasonably diligent efforts to comply with court orders.
MRPC 3.4(d); MCR 9.104(A)(4); In re Albert, 383 Mich 722, 724 (1970). If
the prosecutors were unable to comply with any of the orders in this case,
they should have moved to amend or vacate them.
It is critical in an adversarial justice system that each party has a fair
opportunity to present its case. To enable this, a court’s orders regarding
discovery must be complied with. MCR 6.201. The police and prosecu-
tor’s failure to comply with lawful court orders can jeopardize a defen-
dant’s ability to present a valid defense and can cause the conviction of an
innocent person.
If the evidence against defendant in this case were not strong, I would
vote to remand for retrial pursuant to People v Fink, 456 Mich 449 (1998).
1
389 Mich 155 (1973).
936 472 M
ICHIGAN
R
EPORTS
But, even had defense counsel obtained all the information and evidence
as ordered before trial, there is not a reasonable probability of a different
result on retrial. I agree that leave to appeal should be denied.
Summary Disposition June 28, 2005:
P
EOPLE V
Z
AREMBSKI
, No. 127632. In lieu of granting leave to appeal, the
case is remanded to the Court of Appeals for consideration as on leave
granted of defendant’s claim that he is entitled to resentencing because
offense variable 9, MCL 777.39, was misscored. MCR 7.302(G)(1). Juris-
diction is not retained. Court of Appeals No. 257406.
Leave to Appeal Denied June 28, 2005:
M
OUNTS V
V
AN
B
EESTE
, No. 127006; Court of Appeals No. 243155.
M
ICHIGAN
E
LECTRIC
C
OOPERATIVE
A
SSOCIATION V
P
UBLIC
S
ERVICE
C
OMMIS-
SION
N
O
2, C
ONSUMERS
E
NERGY
C
OMPANY V
P
UBLIC
S
ERVICE
C
OMMISSION
N
O
2,
and D
ETROIT
E
DISON
C
OMPANY V
P
UBLIC
S
ERVICE
C
OMMISSION
N
O
2, Nos.
127094, 127099-127101, 127473; Court of Appeals Nos. 244425, 244429,
244531.
E
NGLISH V
B
LUE
C
ROSS
B
LUE
S
HIELD OF
M
ICHIGAN
, No. 127150; reported
below: 263 Mich App 449.
P
EOPLE V
P
HILLIP
B
ROWN
, No. 127230; Court of Appeals No. 247313.
P
EOPLE V
H
AYES
, No. 127269; Court of Appeals No. 246012.
P
EOPLE V
S
EAN
W
HITE
, No. 127329; Court of Appeals No. 247608.
P
EOPLE V
Y
OUNG
, No. 127332; Court of Appeals No. 248646.
P
EOPLE V
S
NYDER
, No. 127336; Court of Appeals No. 250047.
P
EOPLE V
W
ILLIE
A
NDERSON
, No. 127340; Court of Appeals No. 247393.
P
EOPLE V
S
OK
, No. 127341; Court of Appeals No. 249057.
P
EOPLE V
R
UGGLES
, No. 127350; Court of Appeals No. 247144.
K
OSMALSKI V
W
ILLARD
, No. 127355; Court of Appeals No. 247697.
P
EOPLE V
R
ODNEY
W
ILLIAMS
, No. 127357; Court of Appeals No. 232827
(on remand).
P
EOPLE V
G
UTIERREZ
, No. 127359; Court of Appeals No. 256373.
R
AWLS V
H
UTZEL
H
OSPITAL
, No. 127362; Court of Appeals No. 255112.
P
EOPLE V
T
HREATT
, No. 127367; Court of Appeals No. 248949.
E
QUITY
F
UNDING,
I
NC V
I
NVESTMENT
V
ENTURES,
I
NC
, No. 127372; Court of
Appeals No. 244540.
P
EOPLE V
F
REEMAN
J
ONES
, No. 127374; Court of Appeals No. 248329.
A
CTIONS ON
A
PPLICATIONS
937
P
EOPLE V
M
UTIZWA
F
INLEY
, No. 127380; Court of Appeals No. 248960.
P
EOPLE V
D
ARIUS
T
HOMAS
, No. 127381; Court of Appeals No. 246819.
P
EOPLE V
S
TREETER
, No. 127385; Court of Appeals No. 246479.
W
RIGHT V
D
EPARTMENT OF
C
ORRECTIONS
, No. 127387; Court of Appeals
No. 256404.
P
EOPLE V
B
URSE
, No. 127396; Court of Appeals No. 248601.
P
EOPLE V
W
RIGHT
, No. 127397; Court of Appeals No. 246822.
O’B
RYAN V
L
OWENTHAL
, No. 127400; Court of Appeals No. 255378.
C
ORRIGAN
, J., not participating.
P
EOPLE V
L
YONS
, No. 127404; Court of Appeals No. 244550.
P
EOPLE V
P
RICE
, No. 127412; Court of Appeals No. 246013.
P
EOPLE V
G
IBSON
, No. 127415; Court of Appeals No. 243475.
P
EOPLE V
D
ONALDSON
, Nos. 127417, 127418; Court of Appeals Nos.
248597, 248634.
P
EOPLE V
R
USSELL
R
ICHARDS
, No. 127427; Court of Appeals No. 247747.
W
ALNO V
A
ZMEH
, Nos. 127430, 127431; Court of Appeals No. 248898.
H
ERNDON V
O
AKWOOD
H
EALTHCARE,
I
NC
, No. 127432; Court of Appeals
No. 255534.
W
INDSOR
C
HARTER
T
OWNSHIP V
R
EMSING
, No. 127443; Court of Appeals
No. 249688.
P
EOPLE V
G
OLDEN
, No. 127458; Court of Appeals No. 255215.
P
EOPLE V
R
ANDALL
F
IELDS
, No. 127461; Court of Appeals No. 249137.
P
EOPLE V
P
ROCH
, No. 127465; Court of Appeals No. 254857.
P
EOPLE V
T
OLEFREE
, No. 127467; Court of Appeals No. 257486.
B
ROWN V
C
ASSENS
T
RANSPORT
C
OMPANY
, No. 127468; Court of Appeals
No. 255905.
P
EOPLE V
S
UTTON
, No. 127477; Court of Appeals No. 248652.
P
EOPLE V
M
ARLIN
H
OLLAND
, No. 127478; Court of Appeals No. 247038.
P
EOPLE V
J
OHN
S
MITH
, No. 127479; Court of Appeals No. 248039.
P
EOPLE V
K
EVIN
W
ALDEN
, No. 127481; Court of Appeals No. 244910.
P
EOPLE V
K
UCHARSKI
, No. 127485; Court of Appeals No. 246791.
P
EOPLE V
C
HARLES
M
ULLINS
, Nos. 127491, 127493; Court of Appeals
Nos. 256965, 256964.
938 472 M
ICHIGAN
R
EPORTS
P
EOPLE V
B
ELL
, No. 127494; Court of Appeals No. 257372.
P
EOPLE V
G
OLLMAN
, No. 127499; Court of Appeals No. 247849.
P
EOPLE V
B
LAKE
, No. 127505; Court of Appeals No. 248770.
In re L
AKE
L
EVEL FOR
B
AMBI
L
AKE
(S
HIAWASSEE
C
OUNTY V
B
AMBI
L
AKE
A
SSOCIATION
), No. 127506; Court of Appeals No. 244794.
In re L
ILLIAN
JB
EHRNS
T
RUST
(B
EHRNS V
B
EHRNS
), No. 127510; Court of
Appeals No. 246654.
P
EOPLE V
P
EDRO
H
ERNANDEZ
, No. 127511; Court of Appeals No. 247705.
G
UERRERO V
F
ARMER
, No. 127512; Court of Appeals No. 253334.
C
HASE
M
ANHATTAN
B
ANK V
B
OS
, No. 127514; Court of Appeals No.
247603.
P
EOPLE V
D
URHAM
, No. 127516; Court of Appeals No. 248607.
P
EOPLE V
P
ATTON
, No. 127518; Court of Appeals No. 248608.
P
EOPLE V
A
LTAMIMI
, No. 127519; Court of Appeals No. 256962.
P
EOPLE V
R
EED
, No. 127520; Court of Appeals No. 249571.
P
EOPLE V
S
CHUSTER
, No. 127522; Court of Appeals No. 250931.
M
AXWELL V
D
EPARTMENT OF
E
NVIRONMENTAL
Q
UALITY
, No. 127528; re-
ported below: 264 Mich App 567.
K
ELLY
, J., not participating.
In re W
ALKER
(P
EOPLE V
T
ERRENCE
W
ALKER
), No. 127534; Court of
Appeals No. 258129.
P
EOPLE V
F
OURNIER
, No. 127539; Court of Appeals No. 247533.
A
LKIEFY V
D
AIMLER
C
HRYSLER
C
ORPORATION
, No. 127540; Court of Appeals
No. 255989.
P
EOPLE V
K
IRKSEY
, No. 127542; Court of Appeals No. 250003.
P
EOPLE V
R
APPUHN
, No. 127546; Court of Appeals No. 249026.
P
EOPLE V
W
ILLIAM
H
UDSON
, No. 127550; Court of Appeals No. 247706.
P
EOPLE V
C
OLEY
, No. 127555; Court of Appeals No. 248598.
P
EOPLE V
R
OBERT
W
HITE
, No. 127556; Court of Appeals No. 256606.
C
LARK V
H
ANDZIAK
, No. 127561; Court of Appeals No. 248842.
P
EOPLE V
W
ILLIAM
L
EWIS
, No. 127562; Court of Appeals No. 251589.
P
EOPLE V
P
ITTS
, No. 127563; Court of Appeals No. 248263.
P
EOPLE V
N
EWMAN
, Nos. 127568, 127570; Court of Appeals Nos. 257821,
257819.
A
CTIONS ON
A
PPLICATIONS
939
P
EOPLE V
S
CHWARTZ
, No. 127571; Court of Appeals No. 247895.
P
EOPLE V
T
ALBERT
, No. 127574; Court of Appeals No. 257262.
B
&
BG
ROUP,
LLP v D
EPARTMENT OF
E
NVIRONMENTAL
Q
UALITY
, No.
127575; Court of Appeals No. 247065.
P
EOPLE V
M
C
C
OY
, No. 127577; Court of Appeals No. 249194.
P
EOPLE V
C
OLLINS
, No. 127578; Court of Appeals No. 257791.
S
TONE V
C
ITY OF
R
OYAL
O
AK
, No. 127582; Court of Appeals No. 247779.
P
EOPLE V
B
USS
, No. 127583; Court of Appeals No. 258106.
P
EOPLE V
J
USTICE
, No. 127584; Court of Appeals No. 249429.
P
EOPLE V
M
CRAE
, No. 127609; Court of Appeals No. 248040.
P
EOPLE V
J
IMMIE
M
ALONE
, No. 127610; Court of Appeals No. 257767.
C
ZERYBA V
M
ARZOLO
, No. 127612; Court of Appeals No. 247754.
P
EOPLE V
K
ENYATTA
, No. 127616; Court of Appeals No. 257240.
P
EOPLE V
B
ALLINGER
, No. 127627; Court of Appeals No. 258167.
K
ELLY
, J. I would hold this case in abeyance for People v Drohan,lvgtd
472 Mich 881 (2005).
P
EOPLE V
K
EFFER
, No. 127629; Court of Appeals No. 250152.
P
EOPLE V
J
ORGE
P
EREZ
, No. 127631; Court of Appeals No. 248738.
P
EOPLE V
D
EWEESE
, No. 127635; Court of Appeals No. 251514.
P
EOPLE V
C
LARK
, No. 127645; Court of Appeals No. 248824.
P
EOPLE V
R
ODERICK
C
ASEY
, No. 127649; Court of Appeals No. 256810.
P
EOPLE V
S
HAWNTELL
W
ILLIAMS
, No. 127663; Court of Appeals No.
248373.
P
EOPLE V
J
AMES
M
ITCHELL
, No. 127673; Court of Appeals No. 248636.
S
EARFOSS V
C
HRISTMAN
C
OMPANY,
I
NC
, No. 127678; Court of Appeals No.
249925.
P
EOPLE V
E
DDINGS
, No. 127686; Court of Appeals No. 249421.
P
EOPLE V
P
ATRICIA
D
IXON
, No. 127690; Court of Appeals No. 248619.
P
EOPLE V
L
ACKEY
, No. 127694; Court of Appeals No. 258115.
P
EOPLE V
M
ORTON
, No. 127696; Court of Appeals No. 257770.
P
EOPLE V
C
ALVIN
B
ROWN
, No. 127706; Court of Appeals No. 249896.
P
EOPLE V
M
ARK
W
ILSON
, No. 127711; Court of Appeals No. 257751.
940 472 M
ICHIGAN
R
EPORTS
K
ELLY
, J. I would hold this case in abeyance for People v Drohan,lvgtd
472 Mich 881 (2005).
P
EOPLE V
S
TANLEY
J
ACKSON
, No 127713; Court of Appeals No. 248545.
A
MERISURE
M
UTUAL
I
NSURANCE
C
OMPANY V
A
MERICAN
C
OUNTRY
I
NSURANCE
C
OMPANY
, No. 127716; Court of Appeals No. 245228.
P
EOPLE V
L
EE
D
AVIS
, No. 127720; Court of Appeals No. 256934.
K
ELLY
, J. I would hold this case in abeyance for People v Drohan,lvgtd
472 Mich 881 (2005).
P
EOPLE V
F
ERRELL
, No. 127721; Court of Appeals No. 249419.
N
AVA V
K
EMPER
C
ORPORATION
, No. 127727; Court of Appeals No. 256319.
P
EOPLE V
Y
ARBROUGH
, No. 127729; Court of Appeals No. 249102.
O
LIVARES V
P
ERFORMANCE
A
BATEMENT
S
ERVICES
, No. 127742; Court of
Appeals No. 257428.
P
EOPLE V
A
NTHONY
J
ACKSON
, No. 127744; Court of Appeals No. 249665.
W
ILCOX V
F
ORD
M
OTOR
C
OMPANY
, No. 127745; Court of Appeals No.
256662.
P
EOPLE V
B
AKER
, No. 127749; Court of Appeals No. 248638.
P
EOPLE V
H
ARDY
, No. 127753; Court of Appeals No. 256273.
P
EOPLE V
G
LEASON
, No. 127761; Court of Appeals No. 247615.
P
EOPLE V
E
ADS
, No. 127763; Court of Appeals No. 258150.
P
EOPLE V
B
YE
, No. 127779; Court of Appeals No. 259232.
P
EOPLE V
A
ARON
J
ACKSON
, No. 127786; Court of Appeals No. 250397.
P
EOPLE V
R
ONNIE
M
IXON
, No. 127810; Court of Appeals No. 249181.
P
EOPLE V
W
ILKINS
, No. 127817; Court of Appeals No. 258222.
P
EOPLE V
R
OBERT
D
IXON
, No. 127828; Court of Appeals No. 249954.
P
EOPLE V
M
APP
, No. 127846; Court of Appeals No. 250182.
P
EOPLE V
R
EYNOLDS
, No. 127847; Court of Appeals No. 257957.
P
EOPLE V
R
USSELL
, No. 127853; Court of Appeals No. 257724.
V
ARGO V
F
ORD
M
OTOR
C
OMPANY
, No. 127854; Court of Appeals No.
257175.
B
RANDON
A
SSOCIATES V
C
ASTLE
M
ANAGEMENT
, No. 128054; Court of
Appeals No. 247192.
L
ONG V
C
HILDREN’S
H
OSPITAL OF
M
ICHIGAN
, No. 128118; Court of Appeals
No. 259617.
A
CTIONS ON
A
PPLICATIONS
941
P
EOPLE V
A
NTHONY
C
AMPBELL
, No. 128296; Court of Appeals No. 254807.
Reconsideration Denied June 28, 2005:
S
LATER V
D
E
W
ITT
C
HARTER
T
OWNSHIP
, No. 126455. Leave to appeal
denied at 472 Mich 877. Court of Appeals No. 244791.
S
UTTON V
F
IRST
F
EDERAL OF
M
ICHIGAN
, No. 127074. Leave to appeal
denied at 472 Mich 879. Court of Appeals No. 255770.
B
ARNES V
V
ETTRAINO
, No. 123661. Leave to appeal denied at 472 Mich
883. Court of Appeals No. 235357.
Summary Dispositions June 30, 2005:
T
RAMEL V
C
ONTINENTAL
I
NSURANCE
C
OMPANY
, No. 127265. In lieu of
granting leave to appeal, the Court of Appeals judgment is vacated, and
the case is remanded to that Court for reconsideration in light of this
Court’s decision in Kreiner v Fischer, No. 124120, and Straub v Collette,
No. 124757, 471 Mich 109 (2004). MCR 7.302(G)(1). Court of Appeals No.
246597.
C
AVANAGH,
J. I would deny leave to appeal.
J
ACKSON V
S
TATE
F
ARM
M
UTUAL
A
UTOMOBILE
I
NSURANCE
C
OMPANY
, No.
127379. In lieu of granting leave to appeal, the judgment of the Court of
Appeals is vacated, and the order of the Wayne Circuit Court is reinstated
for the reasons stated in the Court of Appeals dissent. MCR 7.302(G)(1).
The application for leave to appeal as cross-appellant is denied. Court of
Appeals No. 246388.
C
AVANAGH
and K
ELLY
, JJ. We would deny leave to appeal.
Leave to Appeal Denied June 30, 2005:
P
EOPLE V
L
UCERO
, No. 122014; Court of Appeals No. 231977 (on
remand).
C
AVANAGH
and K
ELLY
, JJ. We would remand this case to the Macomb
Circuit Court for further consideration.
N
EWARK
M
ORNING
L
EDGER
C
OMPANY V
D
EPARTMENT OF
T
REASURY
,No.
126894; Court of Appeals No. 244733.
B
RAUN V
A
NN
A
RBOR
C
HARTER
T
OWNSHIP
, No. 126905; reported below:
262 Mich App 154.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
P
EOPLE OF THE
T
OWNSHIP OF
B
LOOMFIELD V
L
AWRENCE
, No. 126964; Court
of Appeals No. 254440.
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
942 472 M
ICHIGAN
R
EPORTS
H
INOJOSA V
D
EPARTMENT OF
N
ATURAL
R
ESOURCES
, No. 127177; reported
below: 263 Mich App 537.
K
ELLY
, J. I would grant leave to appeal.
H
OSTE V
C
HRYSLER
C
ORPORATION
P
LYMOUTH
, No 127200. The Antrim
Circuit Court correctly analyzed this case and properly determined that
defendant Reliable Racing Supply could not be held liable because it had no
knowledge or constructive knowledge of the potential hazard. Court of
Appeals No. 245804.
C
AVANAGH
and K
ELLY
, JJ. We would remand this case to the trial court
for further proceedings.
P
EOPLE V
M
OORE
, No. 127270; Court of Appeals No. 242185.
N
AULT V
W
EBB
, No 127476; Court of Appeals No. 251225.
K
ELLY
, J. I would grant leave to appeal.
P
EOPLE V
E
MBERY
, No. 127484; Court of Appeals No. 256879.
K
ELLY,
J
.
I would hold this case in abeyance for People v Drohan,lvgtd
472 Mich 881 (2005).
P
EOPLE V
C
EDRIC
F
IELDS
, No. 127652. The defendant’s motion for
summary judgment is prohibited by MCR 6.502(G). Court of Appeals No.
255603.
K
ELLY,
J
.
I would hold this case in abeyance for People v Drohan,lvgtd
472 Mich 881 (2005).
P
EOPLE V
V
ENDEVILLE
, No. 127671; Court of Appeals No. 248161.
P
EOPLE V
H
URLESS
, No. 127675. The defendant has failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Court
of Appeals No. 256754.
K
ELLY,
J
.
I would hold this case in abeyance for People v Drohan,lvgtd
472 Mich 881 (2005).
P
EOPLE V
B
OYLES
, No. 127925; Court of Appeals No. 249502.
C
AVANAGH
and K
ELLY
, JJ. We would remand this case to the Oakland
Circuit Court for a hearing pursuant to People v Ginther, 390 Mich 436
(1973).
P
EOPLE V
D
ERRICK
B
ROWN
, No. 128284; Court of Appeals No. 250582.
Interlocutory Appeal
Leave to Appeal Denied June 30, 2005:
P
EOPLE V
H
AWKINS
, No. 127666; Court of Appeals No. 230839 (on
remand).
C
AVANAGH
and K
ELLY,
JJ. We would grant leave to appeal.
Reconsideration Denied July 1, 2005:
P
EOPLE V
D
ECARLOSE
S
MITH
, No. 126837. See 472 Mich 924. Court of
Appeals No. 254724.
A
CTIONS ON
A
PPLICATIONS
943
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal July 1, 2005:
D
ONOHO V
W
AL
-M
ART
S
TORES,
I
NC
, No. 127537. Pursuant to MCR
7.302(G)(1), the clerk is to schedule oral argument on whether to grant
the application or take other peremptory action permitted by MCR
7.302(G)(1). The parties shall include among the issues to be addressed at
oral argument the correct interpretation of MCL 418.315(1). The parties
may file supplemental briefs within 28 days of the date of this order, but
they should avoid submitting mere restatements of arguments made in
application papers. Court of Appeals No. 256525.
Leave to Appeal Denied July 1, 2005:
P
EOPLE V
C
ONYERS
, No. 128258; Court of Appeals No. 259416.
944 472 M
ICHIGAN
R
EPORTS
S
PECIAL
O
RDERS
SPECIAL ORDERS
In this section are orders of the court (other than
grants and denials of leave to appeal from the Court of
Appeals) of general interest to the bench and bar of the
state.
Rehearing Denied January 28, 2005:
G
ILBERT V
D
AIMLER
C
HRYSLER
C
ORPORATION
, No. 122457. Reported at 470
Mich 749.
C
AVANAGH
and K
ELLY
, JJ. We would grant rehearing for the reasons
stated in the dissenting opinion by Justice C
AVANAGH
, 470 Mich 793
(2004).
W
EAVER
, J. I dissent from the decision of the four-justice majority
(Chief Justice T
AYLOR
and Justices C
ORRIGAN
,Y
OUNG
, and M
ARKMAN
)to
deny plaintiff’s motion for rehearing. After six weeks of testimony and
argument, a jury found defendant, DaimlerChrysler Corporation, liable
for several years of sexual harassment suffered at work by plaintiff, Linda
Gilbert. Tragically, four months after the four majority justices reversed
the jury verdict, plaintiff, Linda Gilbert, died at age 45 of a heart attack.
I would grant plaintiff’s motion for rehearing, vacate the majority’s
reversal of a jury verdict in this exceedingly strong case of sexual
harassment, and remand for remittitur.
Orders Entered February 1, 2005:
P
ROPOSED
M
ICHIGAN
S
TANDARDS FOR
I
MPOSING
L
AWYER
S
ANCTIONS
and
P
ROPOSED
A
DOPTION OF
N
EW
M
ICHIGAN
R
ULES OF
P
ROFESSIONAL
C
ONDUCT
(E
XTENSION OF
C
OMMENT
P
ERIODS).
On order of the Court, this is to advise
that the Court is extending the comment period from February 1, 2005,
to June 1, 2005, for the orders published July 29, 2003, 469 Mich 1206,
regarding ADM File No. 2002-29—Proposed Michigan Standards for
Imposing Lawyer Sanctions (MSILS), and July 2, 2004, 470 Mich 1211,
regarding ADM 2003-62—the Proposed Adoption of New Michigan Rules
of Professional Conduct (MRPC). Both matters will be considered at a
public hearing before the Court makes a final decision, and the MRPC
will be finalized before the publication of a final order regarding the
MSILS. When filing a comment, please refer to ADM File Nos. 2002-29
and 2003-62.
Staff Comment: Due to inclement weather, the State Bar Represen-
tative Assembly was unable to discuss and vote on matters relevant to
these files at its January 22, 2005, meeting. The comment period is being
extended in order to maximize the participation of all members of the
legal community in the development of these rules and standards.
P
ROPOSED
A
MENDMENT OF
MCR 3.215. On order of the Court, this is to
advise that the Court is considering further amendments of Rule 3.215 of
the Michigan Court Rules in addition to the amendments that are
S
PECIAL
O
RDERS
1201
effective May 1, 2005. Before determining whether the proposal should
be adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or the
merits of the proposal or to suggest alternatives. The Court welcomes the
views of all. This matter will be considered at a public hearing by the
Court before a final decision is made. The notices and agendas for public
hearings are posted on the Court’s website at
www.courts.mi.gov/supremecourt.
The text of this proposal reflects proposed changes to the text of the
May 1, 2005, version of Rule 3.215.
Publication of these proposals does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposals in their present form.
[The present language would be amended as indicated below:]
R
ULE
3.215. D
OMESTIC
R
ELATIONS
R
EFEREES.
(A)-(C) [Unchanged.]
(D) Conduct of Referee Hearings.
(1)-(3) [Unchanged.]
(4) An electronic or stenographic record must be kept of all hearings.
(a) The parties must be allowed to make contemporaneous copies of
the record if the referee’s recording equipment can make multiple copies
simultaneously and if the parties supply the recording media.
(b) If ordered by the court, or if stipulated by the parties, the referee
must provide a transcript, verified by oath, of each hearing held. The cost
of preparing a transcript must be apportioned equally between the
parties, unless otherwise ordered by the court.
(c) At least 7 days before the judicial hearing, a party who intends to
offer evidence from the record of the referee hearing must provide notice
to the court and each other party. If a stenographic transcript is
necessary, except as provided in (4)(b), the party offering the evidence
must pay for the transcript.
(d) If the court relies on the record of the referee hearing to limit the
judicial hearing under subrule (F), the court must make a copy of the
record available to the parties at no charge and must allow the parties to
file supplemental objections within 7 days of the date the record is
provided to the parties. Following the judicial hearing, the court may
assess the costs of preparing a copy of the record to one or more of the
parties.
(E) Posthearing Procedures.
(1)-(2) [Unchanged.]
(3) The recommended order may be prepared using any of the
following methods:
(a) The referee may draft a recommended order;
(b) The referee may approve a proposed recommended order prepared
by a party and submitted to the referee at the conclusion of the referee
hearing;
1202 472 M
ICHIGAN
R
EPORTS
(c) Within 7 days of the date of the referee’s findings, a party may
draft a proposed recommended order and have it approved by all the
parties and the referee; or
(d) Within 7 days after the conclusion of the referee hearing, a party
may serve a copy of a proposed recommended order on all other parties
with a notice to them that it will be submitted to the referee for approval
if no written objections to its accuracy or completeness are filed with the
court clerk within 7 days after service of the notice. The party must file
with the court clerk the original of the proposed recommended order and
proof of its service on the other parties.
(i) If no written objections are filed within 7 days, the clerk shall
submit the proposed recommended order to the referee for approval. If
the referee does not approve the proposed recommended order, the
referee may notify the parties to appear on a specified date for settlement
of the matter.
(ii) To object to the accuracy or completeness of a proposed recom-
mended order, the party must within 7 days after service of the proposed
order, file written objections with the court clerk that state with
specificity the inaccuracy or omission in the proposed recommended
order, and serve the objections on all parties as required by MCR 2.107,
together with a notice of hearing and an alternate proposed recom-
mended order. Upon conclusion of the hearing, the referee shall sign the
appropriate recommended order.
(3)-(7) [Renumbered (4)-(8), but otherwise unchanged.]
(F)-(G) [Unchanged.]
Staff Comment: These amendments would establish how the record of
a referee hearing will be provided to parties and would establish a
procedure for a referee to submit a recommended order.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by June 1, 2005, at P.O.
a comment, please refer to ADM File No. 2004-40. Your comments and
the comments of others will be posted at www.courts.mi.gov/
supremecourt/Resources/Administrative/index.htm.
Leave to Appeal From Attorney Discipline Board Denied February 28,
2005:
G
RIEVANCE
A
DMINISTRATOR V
Z
AMECK,
N
O.
127653.
Orders Entered March 9, 2005:
P
ROPOSED
A
MENDMENT OF
MCR 3.211. On order of the Court, this is to
advise that the Court is considering an amendment of Rule 3.211 of the
Michigan Court Rules. Before determining whether the proposal should
be adopted, changed before adoption, or rejected, this notice is given to
S
PECIAL
O
RDERS
1203
afford interested persons the opportunity to comment on the form or the
merits of the proposal, or to suggest alternatives. The Court welcomes
the views of all. This matter also will be considered at a public hearing.
The notices and agendas for public hearings are posted on the Court’s
website at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[The present language would be amended as indicated below:]
R
ULE
3.211. J
UDGMENTS AND
O
RDERS.
(A) [Unchanged.]
(B) [Unchanged.]
(C) A judgment or order awarding custody of a minor must provide
that
(1) the domicile or residence of the minor may not be moved from
Michigan without the approval of the judge who awarded custody or the
judge’s successor, and;
(2) the person awarded custody must promptly notify the friend of the
court in writing when the minor is moved to another address.; and
(3) a parent whose custody or parenting time of a child is governed by
the order shall not change the legal residence of the child except in
compliance with section 11 of the Child Custody Act of 1970, MCL 722.21
et seq.
(D) A judgment or order awarding child support or spousal support
must be entered on the latest version of the State Court Administrative
Office’s approved Uniform Support Order form.
(1)-(4) [Deleted.]
(E) [Deleted.]
(F)(E) [Relettered but otherwise unchanged.]
(G)(F) Entry of Judgment or Order.
(1) The party submitting the first judgment or order awarding child
custody, parenting time, child support, or spousal support must provide
the friend of the court office with a completed copy of the latest version
of the State Court Administrative Office’s Judgment Information form.
The court will not sign the proposed judgment or order unless the
Judgment Information form has been submitted with the judgment or
order.
(2) Within 21 days after the court renders an opinion or the settle-
ment agreement is placed on the record, the moving party must submit
a judgment, order, or a motion to settle the judgment or order, unless the
court has granted an extension.
(3) Before it enters a judgment or order awarding child support or
spousal support, the court must verify that the Judgment Information
form in subrule (F)(1) has been completed and submitted to the friend of
the court.
(H)(G) [Relettered but otherwise unchanged.]
1204 472 M
ICHIGAN
R
EPORTS
(I)(H) [Relettered but otherwise unchanged.]
Staff Comment: In subrule (D), the proposed amendments require
that all support orders be entered on a standard form approved by the
State Court Administrative Office. SCAO regularly updates the form by
adding provisions required by new federal and Michigan statutes. Using
the SCAO form will reduce paperwork and allow the order format to
change without further amending this court rule. The current version of
this form is available on the Court’s website at http://www.courts.
michigan.gov/scao/courtforms/domesticrelations/support/foc10.pdf. In re-
lettered subrule (F), the proposed amendments allow personal informa-
tion concerning a party to be provided to the friend of the court in a
document separate from the court order. This will assure that the friend
of the court has all the information that it needs, and that certain
confidential information will be provided to the friend of the court
without being included in the court order, which is a public document. A
draft of the proposed Judgment Information form is available on the
Court’s website at http://www.courts.michigan.gov/scao/courtforms/
domesticrelations/domesticrelationsjudgmentformdraft.pdf. The Court
invites comments on both the Uniform Support Order form and the draft
Judgment Information form.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2005, at P.O.
a comment, please refer to ADM File No. 2004-55. Your comments and
the comments of others will be posted at www.courts.mi.gov/
supremecourt/resources/administrative/index.htm.
P
ROPOSED
A
MENDMENT OF
MCR 9.124. On order of the Court, this is to
advise that the Court is considering an amendment of Rule 9.124 of the
Michigan Court Rules. Before determining whether the proposal should
be adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or the
merits of the proposal or to suggest alternatives. The Court welcomes the
views of all. This matter also will be considered at a public hearing.The
notices and agendas for public hearings are posted at www.
courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[The present language would be amended as indicated below:]
R
ULE
9.124. P
ROCEDURE FOR
R
EINSTATEMENT.
(A) [Unchanged.]
(B) Petitioner’s R esponsibilities.
S
PECIAL
O
RDERS
1205
(1) Separately from the petition for reinstatement, the petitioner
must serve only upon the administrator a personal history affidavit. The
affidavit is to become part of the administrator’s investigative file and
may not be disclosed to the public except under the provisions of MCR
9.126. The affidavit must contain the following information must be
attached to or contained in the affidavit:
(a) [Unchanged.]
(b) employment history since the time of disqualification, including
the nature of employment, the name and address of every employer, the
duration of such employment, and the name of the petitioner’s immedi-
ate supervisor at each place of employment; if requested by the grievance
administrator, the petitioner must provide authorization to obtain a copy
of the petitioner’s personnel file from the employer;
(c)-(e) [Unchanged.]
(f) copies of the petitioner’s personal and business federal, state, and
local tax returns from the date of disqualification until the filing of the
petition for reinstatement, and if the petitioner owes outstanding income
taxes, interest and penalties, the petitioner must provide a current
statement from the taxation authority of the current amount due; if
requested by the grievance administrator, the petitioner must provide a
waiver granting the grievance administrator authority to obtain infor-
mation from the tax authority;
(f)-(j) [Paragraphs (f)-(j) are relettered (g)-(k) but otherwise un-
changed.]
(k)(l) whether there are any outstanding judgments against the
petitioner; the petitioner must provide copies of the complaints and any
judgments or orders of dismissal in such cases;
(l)(m) whether the petitioner was a defendant or a witness in any
criminal case, and the title, docket number, and court in which such case
occurred.; the petitioner must provide copies of the complaints and any
judgment of convictions or orders of dismissals in such cases;
(n) whether the petitioner was subject to treatment or counseling for
mental or emotional disabilities, or for substance abuse or gambling
addiction since the time of disqualification; if so, the petitioner must
provide a current statement from the petitioner’s service provider setting
forth a diagnosis of the petitioner’s condition and prognosis for recovery.
(2)-(5) [Unchanged.]
(C) Administrator’s Responsibilities. Within 14 days after the com-
mission receives its copy of the petition for reinstatement, the adminis-
trator shall submit to the Michigan Bar Journal for publication a notice
briefly describing the nature and date of the discipline, the misconduct
for which the petitioner was disciplined, and the matters required to be
proved for reinstatement. The administrator shall investigate the peti-
tioner’s eligibility for reinstatement before a hearing on it, report the
findings in writing to the board and the hearing panel within 56 days of
the date the board assigns the petition to the hearing panel, and serve a
copy on the petitioner. For good cause, the hearing panel may allow the
administrator to file the report at a later date, but in no event later than
7 days before the hearing. The report must summarize the facts of all
previous misconduct and the available evidence bearing on the petition-
1206 472 M
ICHIGAN
R
EPORTS
er’s eligibility for reinstatement. The report is not a pleading and part of
the record but does not serve to restrict the administrator parties in the
presentation of relevant evidence at the hearing. Any evidence omitted
from the report or received by the administrator subsequent to the filing
of the report must be disclosed promptly to the hearing panel and the
petitioner.
(D)-(E) [Unchanged.]
Staff Comment: The proposed amendments of MCR 9.124(B)(1) would
expand the information a petitioner for reinstatement is required to
include in or attach to the petitioner’s personal history affidavit. The
proposed amendment of subrule (b) would add a requirement that the
petitioner, at the grievance administrator’s request, provide authoriza-
tion for the grievance administrator to obtain a copy of the petitioner’s
personnel file regarding any employment held since the time of disquali-
fication. The proposed amendment of subrule (f) would require a peti-
tioner to attach copies of petitioner’s tax returns from the date of
disqualification to the date of the petition for reinstatement. The
proposed amendment of subrule (l) would add a requirement that a
petitioner provide copies of any civil complaints and judgments or orders
with respect to any outstanding civil judgments against the petitioner.
According to the proposed amendment of subrule (m), a petitioner would
be required to provide copies of criminal complaints and judgments of
conviction or dismissals for any criminal case in which the petitioner was
a defendant or a witness. Subrule (n) would require a petitioner to state
on his personal history affidavit whether, since the date of disqualifica-
tion, the petitioner received treatment for mental or emotional disabili-
ties or substance abuse or gambling addiction. If the petitioner received
such treatment, the petitioner would be required to provide a statement
from the service providers that contained a diagnosis of the condition and
prognosis for recovery.
The proposed amendment of MCR 9.124(C) simply codifies what
already occurs in hearings on petitions for reinstatement and appeals
from decisions following those hearings.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2005, at P.O.
a comment, please refer to ADM File No. 2004-53. Your comments and
the comments of others will be posted at www.courts.mi.gov/
supremecourt/resources/administrative/index.htm.
Order Entered March 10, 2005:
In re M
OORE
, No. 127163. On order of the Court, the Judicial Tenure
Commission has issued a Decision and Recommendation for Discipline,
and the Honorable Marion Moore has consented to the Commission’s
findings of fact, conclusions of law and recommendation of public
censure.
S
PECIAL
O
RDERS
1207
As we conduct our de novo review of this matter, we are mindful of the
standards set forth in In re Brown, 461 Mich 1291, 1292-1293 (2000):
[E]verything else being equal:
(1) misconduct that is part of a pattern or practice is more
serious than an isolated instance of misconduct;
(2) misconduct on the bench is usually more serious than the
same misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration
of justice is more serious than misconduct that is prejudicial only
to the appearance of propriety;
(4) misconduct that does not implicate the actual administra-
tion of justice, or its appearance of impropriety, is less serious than
misconduct that does;
(5) misconduct that occurs spontaneously is less serious than
misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice system
to discover the truth of what occurred in a legal controversy, or to
reach the most just result in such a case, is more serious than
misconduct that merely delays such discovery;
(7) misconduct that involves the unequal application of justice
on the basis of such considerations as race, color, ethnic background,
gender, or religion are more serious than breaches of justice that do
not disparage the integrity of the system on the basis of a class of
citizenship.
The JTC should consider these and other appropriate standards
that it may develop in its expertise, when it offers its recommenda-
tions.
In this case those standards are being applied to the following findings
and conclusions of the Judicial Tenure Commission, which we adopt as
our own:
1. Respondent at all relevant times has been a judge of the 36th
District Court, City of Detroit, Wayne County, Michigan.
2. Respondent was the 36th District Court judge assigned to People v
Senszyszyn, 36th District Court Case No. U-938769 (“Senszyszyn”),
which involves a claim that the defendant improperly operated his taxi
cab with a passenger in the front seat, and the rear seat unoccupied.
3. As the judge presiding over the case, Respondent adjourned it
numerous times, including some occasions without conducting any court
proceeding and others where only some minimal event occurred.
4. Respondent conducted the arraignment on November 4, 2002, and
scheduled a final settlement conference for January 21, 2003.
5. On January 21, 2003, the defendant appeared for the final settle-
ment conference. For some unknown reason, Respondent adjourned the
conference to January 30.
1208 472 M
ICHIGAN
R
EPORTS
6. Respondent again adjourned the proceedings scheduled for Janu-
ary 30, 2003, which were also described as a “final settlement confer-
ence,” without an explanation noted in the file. It appears the new
scheduled date was March 19, 2003.
7. On March 7, 2003, Respondent adjourned the “final settlement
conference” scheduled for March 19 to May 21, 2003, with the only
explanation being a note written in the court file stating “judge not
available.”
8. On May 21, 2003, the “final settlement conference” was held, but
Respondent once again adjourned the case, and a special hearing date
was scheduled for July 24, 2003, to allow the parties to insure that the
exhibits for trial were properly marked.
9. The matter was re-scheduled for September 9, 2003.
10. On September 9, 2003, the proceedings were adjourned based on
Respondent’s order for the defendant to undergo a competency evalua-
tion.
11. As revealed by a notation in the court file, the results of the
competency evaluation were received on October 27, 2003.
12. On November 10, 2003, Respondent adjourned the competency
hearing because her “docket [was] to (sic) heavy,” as reflected by a note
in the court file.
13. As of that hearing date, over a year had passed since the
defendant had been arraigned.
14. Respondent’s staff scheduled a jury trial for February 16, 2004,
almost three months from the hearing date and over 15 months since the
arraignment.
15. On November 18, 2003, Respondent’s staff adjourned the trial
date an additional three weeks to March 9, 2004, as February 16 was a
court holiday.
16. Respondent was on vacation during the month of March 2004,
and the trial was adjourned in Respondent’s absence by Hon. Nancy A.
Farmer until April 12, 2004.
17. On April 12, 2004, Respondent adjourned the trial date until May
18, without explanation.
18. Respondent recused herself from the case in May 2004 upon
notice of the Judicial Tenure Commission’s investigation, at which time
18 months had passed after the arraignment, and a trial had not
occurred.
These standards set forth in Brown are also being applied to the
conclusion of the Judicial Tenure Commission, which we adopt as our
own:
Respondent’s conduct as admitted and described above constitutes:
(a) Misconduct in office, as defined by the Michigan Constitution of
1963, Article VI, § 30, as amended, and MCR 9.205;
(b) Conduct clearly prejudicial to the administration of justice, as
defined by the Michigan Constitution of 1963, Article VI, § 30, as
amended, and MCR 9.205;
(c) Persistent failure to perform judicial duties, as defined by the
Michigan Constitution of 1963, Article VI, § 30, as amended and MCR
9.205;
S
PECIAL
O
RDERS
1209
(d) Persistent neglect in the timely performance of judicial duties,
contrary to MCR 9.205(B)(1)(b);
(e) Failure to conduct oneself at all times in a manner which would
enhance the public’s confidence in the integrity of the judiciary, contrary
to the Code of Judicial Conduct, Canon 2B;
(f) Failure to establish, maintain, enforce and personally observe high
standards of conduct so that the integrity and independence of the
judiciary may be preserved, contrary to the Code of Judicial Conduct,
Canon 1; and
(g) Conduct violative of MCR 9.104(1), and (2) in that such conduct:
(1) is prejudicial to the proper administration of justice; and
(2) exposes the legal profession or the courts to obloquy, contempt,
censure or reproach.
After reviewing the Recommendation of the Judicial Tenure Commis-
sion, the respondent’s consent, the standards set forth in Brown, and the
above findings and conclusions, we order that the Honorable Marion
Moore be publicly censured. This order stands as our public censure.
Order Entered March 15, 2005:
P
ROPOSED
A
MENDMENT OF
MCR 8.108. On order of the Court, this is to
advise that the Court is considering amendments of Rule 8.108 of the
Michigan Court Rules. Before determining whether the proposal should
be adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or the
merits of the proposals or to suggest alternatives. The Court welcomes
the views of all. This matter will be considered at a public hearing. The
notices and agendas for public hearings are posted on the Court’s website
at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[The present language would be amended as indicated below:]
R
ULE
8.108. C
OURT
R
EPORTERS AND
R
ECORDERS.
(A)-(F) [Unchanged.]
(G) Certification.
(1) Certification Requirement.
(a) Except as provided in this subrule, oOnly reporters, or recorders,
operators, or voice writers certified pursuant to this subrule may record
or prepare transcripts of proceedings held in Michigan courts or of
depositions taken in Michigan pursuant to these rules. This rule applies
to the preparation of transcripts of videotaped courtroom proceedings or
videotaped or audiotaped depositions, but not to the recording of such
proceedings or depositions by means of videotaping. An recorder operator
holding a CEO certification under subrule (G)(7)(b) may record proceed-
ings, but may not prepare transcripts.
(b) Proceedings held pursuant to MCR 6.102 or 6.104 need not be
recorded by persons certified under this rule; however, transcripts of such
1210 472 M
ICHIGAN
R
EPORTS
proceedings must be prepared by court reporters, or recorders, operators,
or voice writers certified pursuant to this rule.
(c)-(f) [Unchanged.]
(2) Court Reporting and Recording Board of Review.
(a) The Supreme Court shall appoint a Court Reporting and Record-
ing Board of Review, composed of
(i) [Unchanged.]
(ii) a circuit or recorder’s judge;
(iii)-(ix) [Unchanged.]
(b)-(d) [Unchanged.]
(3) Certification by Testing.
(a) At least twice each year the board shall administer an examination
testing knowledge and speed, and, as to a recorder, operator, or voice
writer, familiarity with basic logging techniques and minor repair and
maintenance procedures. The board shall determine the passing score.
(b) In order to be eligible for registration for an examination, an
applicant must
(i) be at least 18 years of age,
(ii) be a high school graduate, and
(iii) not have been under sentence for a felony for a period of two
years.
(c) In addition, an applicant for the certified shorthand reporter
examination must have satisfactorily completed an post-high school
approved, accredited, or recognized course of study in court reporting and
submit documentation of same prior to testing.
(d) An applicant for the CER/CSMR/CEO examination must have
satisfactorily completed a post-high school Board of Review approved
workshop or course of study provided by MJI, MECRA, or other Board-
approved curriculum and submit documentation of same prior to testing.
(e) All CERs/CSMRs/CEOs who are fully certified by December 31,
2005, are exempt from the requirements of subparagraph (d).
(c)(f) The registration fee is $60.
(4) Reciprocal Certification. A reporter, or recorder, operator, or voice
writer certified in another state may apply to the board for certification
based on the certification already obtained.
(5) Temporary Certification. A new reporter, or recorder, operator, or
voice writer may receive one temporary certification to enable him or her
to work until the results of the next test are released. If the person does
not take the test, the temporary certification may not be extended unless
good cause is shown. If the person takes the test and fails, the board may
extend the temporary certification.
(6) Renewal, Review, and Revocation of Certification.
(a) Certifications under this rule must be renewed annually. The fee
for renewal is $50. $30. Renewal applications must be filed by August
1. A renewal application filed after that date must be accompanied by an
additional late fee of $30. The board may require certified reporters, and
recorders, operators, and voice writers to submit, as a condition of
renewal, such information as the board reasonably deems necessary to
determine that the reporter, or recorder, operator, or voice writer has
S
PECIAL
O
RDERS
1211
used his or her reporting or recording skills during the preceding year.
(b) The board must review the certification of a reporter, or recorder,
operator, or voice writer who has not used his or her skills in the
preceding year, and shall determine whether the certification of such a
reporter or, recorder, operator, or voice writer may be renewed without
the necessity of a certification test.
(c) The board may review the certification of a reporter, or recorder,
operator, or voice writer and may impose sanctions, including revoking
the certification, for good cause after a hearing before the board.
(d) If, after a reporter’s, recorder’s, operator’s, or voice writer’s
certification is revoked or voided by the board and the reporter, recorder,
operator, or voice writer applies to take the certification examination and
passes, the board may issue a conditional certification for a prescribed
period of time imposing restrictions or conditions that must be met for
continued certification. At the end of the conditional period, an uncon-
ditional certification may be issued.
(7) Designations. The board shall assign an identification number to
each person certified. A court reporter, or recorder, operator, or voice
writer must place the identification number assigned on his or her
communications with the courts, including certificates, motions, affida-
vits, and transcripts. The board will use the following certification
designations:
(a) certified electronic recorder (CER);
(b) certified electronic operator (CEO);
(c) certified shorthand reporter (CSR);
(d) certified voice writer/stenomask reporter (CSMR).
The designations are to be used only by reporters, or recorders,
operators, or voice writers certified by the board. A reporter, or recorder,
operator or voice writer may be given more than one designation by
passing different tests.
Staff Comment: The proposed amendment of MCR 8.108(G), as recom-
mended by the Michigan Court Reporting and Recording Board of Review,
would expand the rule’s coverage to include “operators” and “voice
writers” and would mandate completion of a board-approved course as a
condition for certification.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2005, at P.O.
a comment, please refer to ADM File No. 2004-48. Your comments
and the comments of others will be posted at www.courts.mi.gov/
supremecourt/resources/administrative/index.htm.
Reconsideration Denied March 29, 2005:
G
RIEVANCE
A
DMINISTRATOR
vW
ARREN
, No. 127192. Leave to appeal
denied at 471 Mich 1216.
1212 472 M
ICHIGAN
R
EPORTS
Order Entered March 30, 2005:
P
ROPOSED
A
MENDMENTS OF
MCR 9.223
AND
9.224. On order of the Court,
this is to advise that the Court is considering amendments of Rules 9.223
and 9.224 of the Michigan Court Rules. Before determining whether the
proposals should be adopted, changed before adoption, or rejected, this
notice is given to afford interested persons the opportunity to comment
on the form or the merits of the proposal or to suggest alternatives. The
Court welcomes the views of all. This matter will be considered at a public
hearing. The notices and agendas for public hearings are posted on the
Court’s website at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[The present language would be amended as indicated below:]
R
ULE
9.223. C
ERTIFICATION TO
S
UPREME
C
OURT
.F
ILING AND
S
ERVICE OF
D
OCU-
MENTS BY
C
OMMISSION
.
(A) Filing and Service of Documents by Commission. Within 21 days
after entering an order recommending action with regard to a respon-
dent, the commission must take the action required by subrules (A) and
(B).
(1) (A) Filings in Supreme Court. The commission must file in the
Supreme Court:
(a)(1) the original record arranged in chronological order and indexed
and certified;
(b)(2) 24 copies of the order; and
(c) 24 copies of an appendix; and
(d)(3) a proof of service on the respondent;.
(2)(B) Service on Respondent. The commission must serve the respon-
dent with:
(a1) notice of the filing under MCR 9.223(A)(1);
(b2) 2 copies of the order and appendix;
(c3) 2 copies of the index to the original record; and
(d4) a copy of a portion of the original record not submitted by or
previously furnished to the respondent.
(B) Contents of Appendix. The appendix must include, in chronologi-
cal order:
(1) an index;
(2) all pleadings, including those filed with a master;
(3) all orders, including those issued by a master;
(4) all reports, findings of fact, and conclusions of law made by the
commission or a master; and
(5) other material necessary to fairly judge the issues.
R
ULE
9.224. R
EVIEW BY
S
UPREME
C
OURT.
(A) Petition by Respondent. Within 28 days after being served, a
respondent may file in the Supreme Court 24 copies of
S
PECIAL
O
RDERS
1213
(1) [Unchanged.]
(2) an appendix presenting portions of the record not included in the
commission’s appendix that the respondent believes necessary to fairly
judge the issues.
The respondent must serve the commission with 3 copies of the
petition and 2 copies of the appendix and file proof of that service.
(B) Brief of Commission. Within 21 days after respondent’s petition is
served, the commission must file
(1) 24 copies of a brief supporting its finding, and
(2) proof that the respondent was served with 2 copies of the brief.
The commission may file 24 copies of an appendix containing portions
of the record not included in the respondent’s appendix that the
commission believes necessary to fairly judge the issues.
(C)-(F) [Unchanged.]
Staff Comment: The proposed amendment of MCR 9.223 would
eliminate the requirement that the Judicial Tenure Commission file an
appendix with its recommendation for discipline against a judge.
The proposed amendment of MCR 9.224(A) would require the respon-
dent judge to file an appendix if the respondent files a petition to reject
or modify the commission’s decision. The proposed amendment of
9.224(B) would allow the Judicial Tenure Commission to file a supple-
mental appendix with its brief in response to a respondent judge’s
petition.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2005, at P.O.
a comment, please refer to ADM File No. 2004-32. Your comments and
the comments of others will be posted at www.courts.mi.gov/
supremecourt/resources/administrative/index.htm.
Orders Entered April 5, 2005:
P
ROPOSED
A
MENDMENT OF
MCR 3.925. On order of the Court, this is to
advise that the Court is considering an amendment of Rule 3.925 of the
Michigan Court Rules. Before determining whether the proposal should
be adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or the
merits of the proposal or to suggest alternatives. The Court welcomes the
views of all. This matter also will be considered at a public hearing. The
notices and agendas for public hearings are posted at www.
courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
1214 472 M
ICHIGAN
R
EPORTS
[The present language would be amended as indicated below:]
R
ULE
3.925. O
PEN
P
ROCEEDINGS;
J
UDGMENTS AND
O
RDERS;
R
ECORDS
C
ONFIDEN-
TIALITY;
D
ESTRUCTION OF
C
OURT
F
ILES;
S
ETTING
A
SIDE
A
DJUDICATIONS.
(A)-(D)[Unchanged.]
(E) Destruction of Court Files and Records. This subrule governs the
destruction of court files and records.
(1) Destruction Generally; Effect. The court may at any time for
good cause destroy its own files and records pertaining to an offense by
or against a minor, other than an adjudicated offense described in MCL
712A.18e(2), except that the register of actions must not be destroyed.
Destruction of a file does not negate, rescind, or set aside an adjudica-
tion.
(2) Delinquency Files and Records.
(a) The court must destroy the diversion record of a juvenile within 28
days after the juvenile becomes 17 years of age.
(b) The court must destroy all files of matters heard on the consent
calendar within 28 days after the juvenile becomes 17 years of age or after
dismissal from court supervision, whichever is later, unless the juvenile
subsequently comes within the jurisdiction of the court on the formal
calendar. If the case is transferred to the consent calendar and a register
of actions exists, the register of actions must be maintained as a
nonpublic record.
(c) Except as provided by subrules (a) and (b), the court must destroy
the files and records pertaining to a person’s juvenile offenses, other than
any adjudicated offense described in MCL 712A.18e(2), when the person
becomes 30 years old.
(d) If the court destroys its files regarding a juvenile proceeding on the
formal calendar, it shall retain the register of actions, and, if the
information is not included in the register of actions, whether the
juvenile was represented by an attorney or waived representation.
(3) [Unchanged.]
(F)-(G)[Unchanged.]
Staff Comment: The April 5, 2005, proposed amendment of MCR
3.925(E)(2)(c) would require that records and files of all juvenile
offenses be destroyed when the person becomes 30 years old, instead of
the current language, which requires that the records and files of
certain adjudicated juvenile offenses be retained permanently.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by August 1, 2005, at
P.O. Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2004-56. Your comments
and the comments of others will be posted at www.courts.mi.gov/
supremecourt/resources/administrative/index.htm.
S
PECIAL
O
RDERS
1215
P
ROPOSED
A
MENDMENT OF
MCR 7.205. On order of the Court, this is to
advise that the Court is considering an amendment of Rule 7.205 of the
Michigan Court Rules. Before determining whether the proposal should
be adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or the
merits of the proposal or to suggest alternatives. The Court welcomes the
views of all. This matter will be considered at a public hearing. The
notices and agendas for public hearings are posted on the Court’s website
at www.courts.mi.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[The present language would be amended as indicated below:]
R
ULE
7.205. A
PPLICATION FOR
L
EAVE TO
A
PPEAL
.
(A)-(E) [Unchanged.]
(F) Late Appeal.
(1)-(2) [Unchanged.]
(3 Except as provided in subrule (F)(4), leave to appeal may not be
granted if an application for leave to appeal is filed more than 12 6
months after the later of:
(a) entry of a final judgment or other order that could have been the
subject of an appeal of right under MCR 7.203(A), but if a motion
described in MCR 7.204(A)(1)(b) was filed within the time prescribed in
that rule, then the 12 6 months are counted from the entry of the order
denying that motion; or
(b) entry of the order or judgment to be appealed from, but if a motion
for new trial, a motion for rehearing or reconsideration, or a motion for
other postjudgment relief was filed within the initial 21-day appeal period
or within further time the trial court may have allowed during that
21-day period, then the 12 6 months are counted from the entry of that
order denying the motion.
(4) The limitation provided in subrule (F)(3) does not apply to an
application for leave to appeal by a criminal defendant if the defendant
files an application for leave to appeal within 21 days after the trial court
decides a motion for a new trial, for judgment of acquittal, to withdraw a
plea, or for resentencing, if the motion was filed within the 12 6-month
period, or if
(a) the defendant has filed a delayed request for the appointment of
counsel pursuant to MCR 6.425(F)(1) within the 12 6-month period,
(b) the defendant or defendant’s lawyer, if one is appointed, has
ordered the appropriate transcripts within 28 days of service of the order
granting or denying the delayed request for counsel, unless the transcript
has already been filed or has been ordered by the court under MCR
6.425(F)(2), and
(c) the application for leave to appeal is filed in accordance with the
provisions of this rule within 42 days after the filing of the transcript. If
1216 472 M
ICHIGAN
R
EPORTS
the transcript was filed before the order appointing or denying the
appointment of counsel, the 42-day period runs from the date of that
order.
A defendant who seeks to rely on one of the exceptions in subrule
(F)(4) must file with the application for leave to appeal an affidavit
stating the relevant docket entries, a copy of the docket or calendar
entries, or other documentation showing that the application is filed
within the time allowed.
(5) [Unchanged.]
(G) [Unchanged.]
Staff Comment: The April 5, 2005, proposed amendment of MCR
7.205(F)(3) would reduce the time for filing a late application for leave to
appeal from the current deadline of 12 months from the entry of the final
judgment or order appealed from or entry of an order resolving a timely
filed postconviction motion to a deadline of 6 months from the entry of
such orders. The proposed amendment of MCR 7.205(F)(4) would imple-
ment a 6-month deadline that corresponds to the reduction in subrule (3).
The 6-month deadline in subrule (4) would make the limitation in (F)(3)
inapplicable where the defendant files a postconviction motion within 6
months of the judgment or order appealed from and filed an application
for leave to appeal within 21 days of the decision on a postconviction
motion or if the defendant sought the appointment of counsel within 6
months of the order appealed from, counsel ordered the transcripts
within 28 days of the appointment order, and defendant files an applica-
tion for leave to appeal within 42 days of the filing of the complete
transcripts or within 42 days of the order appointing counsel if the
transcript was filed before entry of that order.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by August 1, 2005, at
P.O. Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2003-04. Your comments
and the comments of others will be posted at www.courts.mi.gov/
supremecourt/resources/administrative/index.htm.
Order Entered April 12, 2005:
P
ROPOSED
A
MENDMENT OF
MCR 6.412. On order of the Court, this is to
advise that the Court is considering an amendment of Rule 6.412 of the
Michigan Court Rules. Before determining whether the proposal should
be adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or the
merits of the proposal or to suggest alternatives. The Court welcomes the
views of all. This matter will be considered at a public hearing. The
notices and agendas for public hearings are posted on the Court’s website
at www.courts.mi.gov/supremecourt.
S
PECIAL
O
RDERS
1217
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[The present language would be amended as indicated below:]
R
ULE
6.412. S
ELECTION OF THE
J
URY.
(A)-(E) [Unchanged.]
(F) Discrimination in the Selection Process
(1) No person shall be subjected to discrimination during voir dire on
the basis of race, color, religion, national origin, or sex.
(2) Discrimination during voir dire on the basis of race, color, religion,
national origin, or sex for the purpose of achieving what the court
believes to be a balanced, proportionate, or representative jury in terms
of these characteristics shall not constitute an excuse or justification for
a violation of this subsection.
(F)(G) [Relettered but otherwise unchanged.]
Staff Comment: The April 12, 2005, proposed amendment of MCR
6.412(F) is new language that states that discrimination on the basis of
race, color, religion, national origin, or sex during the selection process of
a jury is prohibited even in cases where the purpose would be to achieve
balanced representation. Former subrule (F) is relettered as (G).
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by August 1, 2005, at
P.O. Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2003-04. Your comments
and the comments of others will be posted at www.courts.mi.gov/
supremecourt/resources/administrative/index.htm.
Order Entered April 13, 2005:
P
ROPOSED
A
MENDMENT OF
MCR 9.205. On order of the Court, this is to
advise that the Court is considering an amendment of Rule 9.205 of the
Michigan Court Rules. Before determining whether the proposal should
be adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or the
merits of the proposal or to suggest alternatives. The Court welcomes the
views of all. This matter also will be considered at a public hearing. The
notices and agendas for public hearings are posted at www.courts.
michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
1218 472 M
ICHIGAN
R
EPORTS
[The present language would be amended as indicated below:]
R
ULE
9.205. S
TANDARDS OF
J
UDICIAL
C
ONDUCT.
(A) [Unchanged.]
(B) Grounds for Action. A judge is subject to censure, suspension with
or without pay, retirement, or removal for conviction of a felony, physical
or mental disability that prevents the performance of judicial duties,
misconduct in office, persistent failure to perform judicial duties, ha-
bitual intemperance, or conduct that is clearly prejudicial to the admin-
istration of justice.
[ALTERNATIVE A]
In addition to any other sanction imposed, a judge may be ordered to
pay the costs, fees, and expenses incurred by the commission in prosecut-
ing the complaint.
[ALTERNATIVE B]
In addition to any other sanction imposed, a judge may be ordered to
pay the costs, fees, and expenses incurred by the commission in prosecut-
ing the complaint only if the judge engaged in conduct involving fraud,
deceit, or intentional misrepresentation, or if the judge made misleading
statements to the commission, the commission’s investigators, the mas-
ter, or the Supreme Court.
(1)-(3) [Unchanged.]
Staff Comment: This order invites comments on two alternative
proposed amendments of MCR 9.205(B). Both would allow the Judicial
Tenure Commission to recommend and this Court to order that a disci-
plined judge pay the costs, fees, and expenses incurred by the commission
in prosecuting the complaint of judicial misconduct. Alternative B is
narrower in that it only allows costs to be assessed where the judge is
engaged in conduct involving fraud, deceit, intentional misrepresentation,
or misleading statements to the commission, the commission’s investiga-
tors, the master, or the Supreme Court. Cf. In re Noecker, 472 Mich 1
(2005).
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on this proposal may be sent to the
Supreme Court Clerk in writing or electronically by August 1, 2005, at P.O.
a comment, please refer to ADM File No. 2004-60. Your comments and the
comments of others will be posted at www.courts.mi.gov/
supremecourt/resources/administrative/index.htm.
W
EAVER,
J
.
I propose for public comment Alternative C: consideration
of whether this Court has the constitutional authority to assess a judge
for the costs incurred as a result of a Judicial Tenure Commission (JTC)
proceeding instituted against that judge.
Article 6, § 30(2) of the 1963 Michigan Constitution provides:
S
PECIAL
O
RDERS
1219
On recommendation of the judicial tenure commission, the
supreme court may censure, suspend with or without salary, retire or
remove a judge for conviction of a felony, physical or mental
disability which prevents the performance of judicial duties, mis-
conduct in office, persistent failure to perform his duties, habitual
intemperance or conduct that is clearly prejudicial to the adminis-
tration of justice. The supreme court shall make rules implementing
this section and providing for confidentiality and privilege of pro-
ceedings. [Emphasis added.]
It has been suggested that the emphasized text in § 30 provides the
authority for the Supreme Court to assess costs. However, the language
is very specific: the Supreme Court has the authority to “censure,
suspend . . ., retire or remove a judge....”Thereisnograntofpower
to this Court to assess costs. Further, while it has also been suggested
that the grant of power to “make rules implementing this section”
authorizes the Court to adopt a rule assessing costs, that suggestion is at
best questionable. The rulemaking authority granted by the Michigan
Constitution applies only to the specifically enumerated powers granted
tothisCourt,i.e.,to“censure,suspend...,retire, or remove a
judge....”Moreover,therulemaking authority is applicable to proce-
dural rules, not substantive rules.
The state of Montana has a constitutional provision authorizing
judicial discipline that is virtually identical to Michigan Const 1963, art
6, § 30. In Harris v Smartt, 316 Mont 130 (2003), the Montana Supreme
Court addressed the issue of imposing costs on a respondent judge, and
ultimately held that the Montana Constitution did not provide the
authority to assess costs. Specifically, the constitutional language that
provided for the creation of Montana’s Judicial Standards Commission
enumerated a limited number of powers to the state supreme court. The
pertinent portion of the Montana Constitution provides:
Upon recommendation of the commission, the supreme court may:
(a) Retire any justice or judge for disability that seriously
interferes with the performance of his duties and is or may become
permanent; or
(b) Censure, suspend, or remove any justice or judge for willful
misconduct in office, willful and persistent failure to perform his
duties, violation of canons of judicial ethics adopted by the
supreme court of the state of Montana, or habitual intemperance.
[Mont Const, art 7, § 11(3).]
The Montana Supreme Court held that this language did not provide
the court with the authority to assess costs:
[T]he framers of the Constitution specified what the Commis-
sion can recommend and what sanctions the Supreme Court can
impose; retirement, censure, suspension or removal from office.
1220 472 M
ICHIGAN
R
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Expressio unius est exclusio alterius. The express mention of the
above sanctions implies the exclusion of non-expressed sanctions.
We conclude that the imposition of costs and attorney fees exceeds
the power granted to either the Commission or this Court by the
Montana Constitution. [Harris, supra at 134-135.]
Since Michigan’s comparable constitutional provision is virtually
identical to that of the Montana Constitution, it is questionable whether
this Court has authority to assess costs. Where the Michigan Constitu-
tion specifically lists only certain powers available to this Court, it follows
that this Court may not exceed its authority by adding a new power not
specifically granted to the Court.
The Montana Constitution also has a rulemaking provision that
instructs the state’s Judicial Standards Commission to “investigate
complaints, and make rules implementing this section.” Mont Const, art
7, § 11(2). In Harris, the Judicial Standards Commission had argued that
its rulemaking authority allowed it to adopt a rule assessing costs against
a respondent judge because such a rule was “procedural.” The Harris
court took issue with the commission’s characterization of the rule as
procedural:
Such a rule serves as a deterrent and is thus substantive rather
than procedural. As the $52,000 statement of costs in the present
case graphically illustrates, an award of costs and attorney fees
amounts to a very substantive “deterrent.” The prospect of having
to pay not only one’s retained counsel but also the costs and
attorney fees of counsel for the Commission would not only serve
to deter unethical conduct but also would most certainly serve to
deter judges from properly defending a charge of unethical con-
duct. [Harris, supra at 135.]
In finding the rule assessing costs to be “substantive” rather than
“procedural,” the Harris court determined that the commission had
exceeded its constitutional authority.
Likewise, in Michigan, it appears that a cost assessment rule would be
substantive, not procedural. Const 1963, art 6, § 30(2) grants this Court
the authority to “make rules implementing this section,” but this Court
may not use the provision as the basis for adopting a rule that is not
specifically tied to the enumerated powers to censure, suspend, retire, or
remove a judge.
This issue most recently arose in In re Noecker, 472 Mich 1 (2005).
There the JTC recommended that the Court assess as costs the
$22,572.76 in expenses it had incurred in prosecuting the matter to
conclusion before the master. In addition, a minority of the JTC recom-
mended the Court impose as costs the expenses incurred by the taxpayers
for visiting judges who replaced Judge Noecker during his suspension.
As I said in concurring in In re Noecker, supra at 18-19:
S
PECIAL
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RDERS
1221
I would not assess costs because it appears to me that this
Court has no constitutional authority to assess the judge for the
costs of the proceedings. Const 1963, art 6, § 30 provides that “the
supreme court may censure, suspend with or without salary, retire
orremoveajudge....”Nothinginthisconstitutional provision
gives this Court any authority to discipline the judge by assessing
the judge the costs of the Judicial Tenure Commission proceedings
against him or her.
Order Entered May 18, 2005:
P
ROPOSED
A
MENDMENT OF
MCR 8.123. On order of the Court, this is to
advise that the Court is considering an amendment of Rule 8.123 of the
Michigan Court Rules. Before determining whether the proposal should
be adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or the
merits of the proposals or to suggest alternatives. The Court welcomes
the views of all. This matter will be considered at a public hearing. The
notices and agendas for public hearings are posted on the Court’s website
at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[The present language would be amended as indicated below:]
R
ULE
8.123. C
OUNSEL
A
PPOINTMENTS;
P
ROCEDURE AND
R
ECORDS.
(A)-(C) [Unchanged.]
(D) Required Records. At the end of each calendar year, a trial court
must compile an annual written or electronic report of:
(1) the number of appointments given to each attorney by that court;
(2) the number of appointments given to each attorney by each judge
of that court;
(3) the total public funds paid to each attorney for appointments by
that court; and
(4) the total public funds paid to each attorney for appointments by
each judge of that court.
This subsection applies to appointments of attorneys in any capacity,
regardless of the indigency status of the represented party. Trial courts
that contract for services to be provided by an affiliated group of
attorneys may treat the group as a single entity when compiling the
required records of appointments and compensation.
The records required by this subrule must be retained for the period
specified by the State Court Administrative Office’s General Schedule
16.
1222 472 M
ICHIGAN
R
EPORTS
(E) [Unchanged.]
(F) Reports to State Court Administrator. A trial court must submit
its annual electronic report to the State Court Administrator in the form
specified by the State Court Administrator. When requested by the State
Court Administrator, a trial court must cooperate in providing:
(1) provide a copy of its most recent annual report; and
(2) provide additional data on an individual attorney, or judge, or
attorney group for a period specified by the request, including the
number of appointments by each judge, the number of appointments
received by an individual attorney or attorney group, and the public
funds paid for appointments by each judge.
Staff Comment: The proposed amendments of MCR 8.123 would
broaden the rule’s reporting requirements to cover court appointments of
attorneys in all capacities, regardless of the indigency status of the
represented party, while also simplifying the reporting requirements for
trial courts. The amendments further would require trial courts to
electronically submit their annual reports of counsel appointments to the
State Court Administrative Office, in addition to continuing to maintain
them for public inspection at the courts. Trial courts also would be
required to cooperate with the State Court Administrator by providing
additional data on appointments to individual attorneys or attorney
groups, and on appointments by an individual judge, without having to
include this data in their annual reports.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by September 1, 2005,
When filing a comment, please refer to ADM File No. 2001-10.
Your comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
Order Entered May 24, 2005:
P
ROPOSED
A
MENDMENT OF
MCR 4.101. On order of the Court, this is to
advise that the Court is considering an amendment of Rule 4.101 of the
Michigan Court Rules. Before determining whether the proposal should
be adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or the
merits of the proposal or to suggest alternatives. The Court welcomes the
views of all. This matter also will be considered at a public hearing.
The notices and agendas for public hearings are posted at
www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
S
PECIAL
O
RDERS
1223
[The present language would be amended as indicated below:]
R
ULE
4.101. C
IVIL
I
NFRACTION
A
CTIONS.
(A)-(B) [Unchanged.]
(C) Appearance by Police Officer at Informal Hearing.
If a police officer has been notified by the court to appear at an
informal hearing, the police officer must appear at the informal hearing
unless the State Court Administrative Office has approved a local
administrative order allowing a defendant to waive the appearance of the
police officer at the informal hearing. The order shall include provisions
for:
(1) allowing a defendant to waive the appearance of the police officer
at the informal hearing,
(2) receipt by the court of a written statement of the police officer
setting forth the facts that the police officer would testify to at the
informal hearing if present,
(3) receipt of a copy of the police officer’s written statement by the
defendant at or before the commencement of the informal hearing,
(4) a provision allowing the defendant, after having an opportunity to
review the police officer’s written statement, the right to request an
adjournment without penalty to require the officer’s presence at the
hearing when such presence was previously waived, but only if the
request for adjournment is made at or before the commencement of the
informal hearing, and
(5) procedures by which the court will notify the police officer of
(a) the defendant’s waiver of the officer’s appearance,
(b) the right of the police officer to appear at the informal hearing, and
(c) the right of the police officer, in lieu of appearing at the informal
hearing, to provide a written statement setting forth the facts that the
police officer would testify to at the informal hearing.
Failure of the police officer to appear as required by this rule shall
result in a dismissal of the case without prejudice.
(C)-(G)(D)-(H) [Renumbered but otherwise unchanged.]
Staff Comment: The proposed amendment of MCR 4.101 would
require certain procedures to be implemented by courts to allow the
waiver of a police officer’s attendance at civil infraction informal hear-
ings, and would establish procedures if the police officer fails to appear
for a hearing.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by September 1, 2005,
When filing a comment, please refer to ADM File No. 2005-16.
Your comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
1224 472 M
ICHIGAN
R
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Certified Questions Declined May 26, 2005:
In re C
ERTIFIED
Q
UESTIONS
F
ROM THE
U
NITED
S
TATES
C
OURT OF
A
PPEALS FOR
THE
S
IXTH
C
IRCUIT
(M
ELSON V
P
RIME
I
NSURANCE
S
YNDICATE,
I
NC
), No.
127088. The request to answer questions certified by the United States
Court of Appeals for the Sixth Circuit is declined.
W
EAVER,
J. I concur in the order declining to answer the questions
certified by the United States Court of Appeals for the Sixth Circuit
because I continue to question this Court’s authority to answer such
questions. See, e.g., Proposed Amendment of MCR 7.305, 462 Mich 1208
(2000); In re Certified Question (Wayne Co v Philip Morris Inc), 622 NW2d
518 (Mich, 2001); In re Certified Question (Kenneth Henes Special Projects
Procurement, Marketing & Consulting Corp v Continental Biomass Indus-
tries, Inc), 468 Mich 109 (2003). Justice Y
OUNG
also questions this Court’s
authority to answer questions certified by the federal courts, post;
1
and
Justice L
EVIN
has questioned this Court’s authority. See In re Certified
Question (Bankey v Storer Broadcasting Co), 432 Mich 438, 462-471
(1989) (separate opinion of L
EVIN
, J.). Therefore, I decline to answer the
questions in this case.
In light of the reasons offered by Justice M
ARKMAN
as support for his
opinion that the Court has the authority to answer such questions, as
well as the statements that have been made by Justice L
EVIN
, Justice
Y
OUNG
, and myself on this issue, this Court should open an administrative
file to consider the constitutionality of MCR 7.305. After taking public
comment on this important issue, the Court can then decide definitively
whether or not it has authority to answer certified questions, and, if it
decides that it does have authority, clearly identify the basis for that
authority because, to date, as Justice M
ARKMAN
notes, no basis has been
clearly identified.
Y
OUNG,
J
.
I concur in the order declining to answer the questions
certified by the United States Court of Appeals for the Sixth Circuit. Any
construction of Michigan law that we would have provided by answering
the certified questions would have been merely “advisory” because our
decision would not have been binding. Absent an express constitutional
exception, such as Const 1963, art 3, § 8,
1
any nonbinding decision issued
by this Court is beyond the “judicial power” of this Court and, therefore,
unconstitutional.
In 2000, this Court considered repealing MCR 7.305(B). I joined
then-Chief Justice W
EAVER
’s dissenting statement, which concluded that
the certified question process was unconstitutional.
2
I wrote separately
1
See also In re Certified Question (Wayne Co v Philip Morris Inc), 622
NW2d 518 (Mich, 2001) (Y
OUNG
, J., concurring).
1
Const 1963, art 3,§8provides:
Either house of the legislature or the governor may request the
opinion of the supreme court on important questions of law upon
solemn occasions as to the constitutionality of legislation after it
has been enacted into law but before its effective date.
2
Proposed Amendment of MCR 7.305, 462 Mich 1208 (2000).
S
PECIAL
O
RDERS
1225
and reiterated this position in In re Certified Question (Wayne Co v Philip
Morris Inc).
3
Having realized, however, that my concerns about the
constitutionality of MCR 7.305(B) failed to carry the day, I have since
honored the majority position of this Court and participated in certified
question matters.
4
However, Justice M
ARKMAN
’s lengthy statement justi-
fying MCR 7.305(B) and these particular certified questions warrant an
equally thorough response.
5
I. THIS COURT MAY CONSTITUTIONALLY
EXERCISE ONLY “JUDICIAL POWER”
The Michigan Constitution specifically provides that “[t]he judicial
power of the state is vested exclusively in one court of justice....”
6
I
agree with Justice M
ARKMAN
that “the entirety of the ‘judicial power’ has
been given to this Court” by the people of this state.
7
I disagree, however,
with Justice M
ARKMAN
’s apparent belief that the “judicial power” is an
unbounded grant of judicial authority that permits this Court to enter-
tain certified questions from courts of other jurisdictions.
8
The central
flaw in Justice M
ARKMAN
’s analysis is his belief that the Supremacy
Clause
9
and Erie
10
doctrine grant to this Court a power that the people of
this state did not—the power to issue advisory opinions on Michigan law
to the courts of other jurisdictions.
II. “JUDICIAL POWER” DOES NOT ENCOMPASS THE AUTHORITY
TO ISSUE NONBINDING ADVISORY OPINIONS
The phrase “judicial power” is a legal term of art. Indeed, it has been
3
622 NW2d 518 (Mich, 2001).
4
See, e.g., In re Certified Question (Kenneth Henes v Continental
Biomass Industries, Inc), 468 Mich 109 (2003).
5
As Justice M
ARKMAN
has noted, I have previously relied on the
“negative implication” theory of Const 1963, art 3,§8inquestioning the
constitutionality of MCR 7.305(B). Post at 1235. For the reasons indicated
by Justice M
ARKMAN
in his statement, however, I agree that the “negative
implication” theory is flawed. Instead, it is the fact that MCR 7.305(B)
exceeds our “judicial power” under Const 1963, art 6, § 1 that renders
MCR 7.305(B) constitutionally infirm.
6
Const 1963, art 6, § 1 (emphasis added).
7
Post at 1235.
8
Id. at 1236 (“the judicial power of Michigan is broad enough to
encompass the consideration of [certified questions from other courts]”).
9
US Const, art VI, cl 2.
10
Erie R Co v Tompkins, 304 US 64 (1938).
1226 472 M
ICHIGAN
R
EPORTS
used identically in the Michigan constitutions of 1835,
11
1850,
12
1908,
13
and 1963.
14
Because the phrase is a legal term of art, we are to construe
the phrase in its “technical, legal sense” in order to give effect to the
intent of the ratifiers of Const 1963, art 6, § 1, who understood the phrase
to have a “peculiar and appropriate meaning in the law.”
15
This under-
standing can only be discerned by “delving into [the] body of case law”
interpreting the phrase.
16
An examination of the case law clearly indicates that the phrase
“judicial power” does not have the all-encompassing scope that Justice
M
ARKMAN
’s statement accords it. Instead, the phrase has a much more
limited meaning. One such fundamental definitional limitation of judicial
authority is that any opinion issued by a Michigan court must be binding.
Justice C
AMPBELL
explained this essential point in 1867 in the case of
Underwood v McDuffee:
The judicial power, even when used in its widest and least
accurate sense, involves the power to “hear and determine” the
matters to be disposed of; and this can only be done by some order
or judgment which needs no additional sanction to entitle it to be
enforced. No action which is merely preparatory to an order or
judgment to be rendered by some different body, can be properly
termed judicial.
[
17
]
This Court wholly endorsed Underwood and the binding nature of
“judicial power” in the 1884 case of Risser v Hoyt,
18
in which Justice
C
HAMPLIN
stated:
[T]he exercise of judicial power in its strict legal sense can be
conferred only upon courts named in the Constitution. The
judicial power referred to is the authority to hear and decide
controversies, and to make binding orders and judgments respect-
ing them.
[
19
]
11
Const 1835, art 6, § 1 (“The judicial power shall be vested in one
supremecourt....”).
12
Const 1850, art 6,§1(“The judicial power is vested in one supreme
court....”).
13
Const 1908, art 7, § 1 (“The judicial power shall be vested in 1
supremecourt....”).
14
Const 1963, art 6,§1(“The judicial power of the state is vested
exclusively in one court of justice....”).
15
MCL 8.3a; Wayne Co v Hathcock, 471 Mich 445, 469 (2004); see also
People v Babcock, 469 Mich 247, 257 (2003).
16
Hathcock, supra at 471.
17
15 Mich 361, 368 (1867) (emphasis in original).
18
53 Mich 185 (1884).
19
Id. at 193 (emphasis added).
S
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1227
In fact, just four years before the 1963 Constitution was ratified, this
Court again endorsed the Underwood/Risser definition of “judicial
power” in the 1959 case of Johnson v Kramer Bros Freight Lines, Inc.
20
It is clear, therefore, that the ratifiers of the 1963 Constitution
understood the phrase to be a legal term of art with a very precise
meaning—a meaning that had been consistently construed in the case
law for approximately one hundred years before the ratification of Const
1963, art 6, § 1. Indeed, writing for the Court in Nat’l Wildlife Federation
v Cleveland Cliffs Iron Co,
21
Justice M
ARKMAN
recently noted that the
phrase “judicial power” was “well understood by scholars, lawyers,
judges, and even laymen” at the time of the 1961 constitutional conven-
tion.
22
Moreover, in 2001, Chief Justice T
AYLOR
, writing for the Court in Lee
v Macomb Co Bd of Comm’rs,
23
specifically relied on the Risser Court’s
definition of “judicial power.”
24
Additionally, just last term in Nat’l
Wildlife, Justice M
ARKMAN
aptly noted that “[t]he ‘judicial power’ has
traditionally been defined by a combination of considerations,” including
“the ability to issue proper forms of effective relief ....”
25
It is undeniable, therefore, that the proper exercise of “judicial power”
by this Court must involve a decision that is binding and not merely
advisory. A nonbinding decision issued by this Court would be an
unconstitutional exercise of power. Justice M
ARKMAN
wisely pointed out in
Nat’l Wildlife that, “ ‘judicial power’ is a matter of considerable consti-
tutional significance”
26
and that this Court must refrain from “trans-
forming the ‘judicial power’ from a concept of constitutional stature into
amereprudentialconcept....”
27
III. THIS COURT HAS NO POWER TO ENFORCE ANY
DECISION IT MAKES ON THE ISSUES CERTIFIED
In the present case, our answers to the Sixth Circuit’s certified
questions would not have been binding in any way. Such a nonbinding,
advisory opinion would have been inconsistent with the “judicial power”
granted to this Court by the people of this state and, therefore, an
unconstitutional exercise of our power.
28
Indeed, no certified question
20
357 Mich 254, 258 (1959).
21
471 Mich 608 (2004).
22
Id. at 627 n16.
23
464 Mich 726 (2001).
24
Id. at 738.
25
Nat’l Wildlife, supra at 614 (emphasis added).
26
Id.
27
Id. at 624-625 n 12.
28
As this Court noted in Hathcock, “The only instance in which we are
constitutionally authorized to issue an advisory opinion is upon the
1228 472 M
ICHIGAN
R
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from a court of another jurisdiction could ever pass constitutional muster
because this Court would lack authority to force the other jurisdiction to
follow our decision. We have absolutely no authority to force a federal
court, sister state court, or tribal court to adopt our answer to a certified
question.
29
In his statement, Justice M
ARKMAN
attempts to overcome this consti-
tutional impediment to the certified question process by asserting that
this Court’s answers to the certified questions “will be relied upon” by
the Sixth Circuit.
30
While I tend to agree with Justice M
ARKMAN
that it is
entirely likely that the Sixth Circuit would have relied on our answers to
the certified questions, this is beside the point. The point is not whether
the Sixth Circuit would or would not have relied on our answer, but
rather that we could not have compelled the Sixth Circuit to rely on our
decision. Because we would have no enforcement power, our decision
necessarily would have been advisory and nonbinding and therefore not
a proper exercise of “judicial power” in the constitutional sense. Even
Justice M
ARKMAN
conceded in Nat’l Wildlife that an “advisory opinion”
issued by this Court is “potentially beyond the traditional ‘judicial
power.’ ”
31
I agree with his position in Nat’l Wildlife rather than his
statement here.
I am also not persuaded by Justice M
ARKMAN
’s assertion in his
statement that the certified question process is constitutional because
“the Michigan Legislature since at least 1963 has statutorily affirmed the
jurisdiction of this Court over ‘any case brought before it for review in
accordance with the court rules promulgated by the supreme court,’
request of either house of the Legislature or the Governor—and, then,
only ‘on important questions of law upon solemn occasions as to the
constitutionality of legislation after it has been enacted into law but
before its effective date.’ ” Hathcock, supra at 484 n 98.
29
Even given that the Erie doctrine would have made our answer to a
certified question binding on a federal court, it is the effect of federal,not
Michigan, law that would have made this so. Moreover, Justice M
ARKMAN
offers no justification as to why our answer to a certified question would
be binding on a sister state court or tribal court, both of which are
permitted under MCR 7.305(B) to certify questions to this Court. While
I realize that the latter two cases are not presently before us, they
illustrate the constitutional shortcomings of MCR 7.305(B) and the
limited reach of Justice M
ARKMAN
’s Erie analysis. As long as we do not
have to worry about whether our answer to a certified question would be
binding on a sister state court or tribal court, why limit the reach of MCR
7.305(B) only to those courts?
30
Post at 1237.
31
Nat’l Wildlife, supra at 625. Justice M
ARKMAN
noted that the “advi-
sory opinion” authority granted under Const 1963, art 3, § 8, was an
exception to the traditional notion of “judicial power.” Id. at 624-625.
S
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1229
including presumably MCR 7.305(B), MCL 600.215.”
32
To describe MCL
600.215 as a “statutory affirmation” of this Court’s certified question
procedure seems an unduly expansive view of legislative regard for our
rules. It merely recognizes our constitutional authority to make rules of
procedure. It surely constitutes no legislative endorsement of MCR
7.305(B).
33
More significant, an unconstitutional court rule does not magically
become constitutional because the Legislature has acquiesced in or even
endorsed it. The Legislature has no authority to absolve a rule that is
constitutionally flawed. As Justice M
ARKMAN
perceptively noted in Nat’l
Wildlife:
When a broadening and redefinition of the “judicial power”
comes not from the judiciary itself, usurping a power that does not
belong to it, but from the Legislature purporting to confer new
powers upon the judiciary, the exercise of such power is no less
improper.
[
34
]
IV. THE QUESTIONS CERTIFIED DO NOT CLEARLY
IMPLICATE MICHIGAN LAW
Additionally, I disagree with Justice M
ARKMAN
’s statement that “[t]he
Sixth Circuit has acted responsibly” in certifying the present questions to
us.
35
Setting aside the substantial constitutional concerns that I have
32
Post at 1240. MCL 600.215 provides:
The supreme court has jurisdiction and power over:
(1) any matter brought before it by any appropriate writ to any
inferior court, magistrate, or other officer;
(2) any question of law brought before it in accordance with
court rules, by certification by any trial judge of any cause pending
or tried before him;
(3) any case brought before it for review in accordance with the
court rules promulgated by the supreme court.
33
If anything, I would categorize the Legislature’s apparent inaction in
denouncing MCR 7.305(B) more a legislative “acquiescence” than “affir-
mation.” As we stated last term in Neal v Wilkes, “ ‘[l]egislative acqui-
escence’ has been repeatedly rejected by this Court....”470Mich661,
668 n 11 (2004). However, I can see no other justification for Justice
M
ARKMAN
’s reliance on MCL 600.215 as support for his position.
34
Nat’l Wildlife, supra at 616.
35
Post at 1240.
1230 472 M
ICHIGAN
R
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already discussed, there are numerous practical reasons why it was
proper to decline the Sixth Circuit’s request in this instance. First, the
Sixth Circuit has asked us to interpret Michigan law in helping it to
resolve the underlying contract dispute between the parties, despite the
fact that the parties’ contract has an unambiguous Illinois choice of law
provision. Second, it is not clear that the legislation the Sixth Circuit has
asked us to interpret even applies to the defendant, a “surplus line
carrier.” Third, the parties have indicated that the Sixth Circuit has
misunderstood and misstated their arguments. These practical concerns
were reason alone to deny the Sixth Circuit’s request.
V
.
CONCLUSION
We are permitted to exercise only that power which is authorized
under our Constitution. Because nonbinding decisions issued pursuant to
MCR 7.305(B) fall outside the “judicial power” authorized under Const
1963, art 6, § 1, it is entirely proper for this Court to refrain from
answering the questions presented. By declining to answer the certified
questions, we are not “ceding responsibility for the interpretation of
Michigan law,”
36
but rather remaining true to the highest form of law in
our state—our Constitution—and honoring those who gave the law: the
people of Michigan.
M
ARKMAN,
J
.
(dissenting). This is to respond to the concurring state-
ments of Justices W
EAVER
and Y
OUNG
, the former of which questions this
Court’s authority to answer certified questions and the latter of which
concludes that to answer such questions would be “inconsistent with the
‘judicial power’ granted to this Court....”Ante at 1228. I respectfully
disagree with the latter statement, and conclude that this Court does
possess the authority to answer certified questions. Moreover, I believe
that it is important that we answer such questions. Nonetheless, I
commend Justices W
EAVER
and Y
OUNG
for recognizing this Court’s obli-
gation to identify the source of its authority in this matter, something
that we have not clearly done in the past. While the opposition argument
has been made, not only by Justice Y
OUNG
, but also by Justice L
EVIN
in his
separate opinion in In re Certified Question (Bankey v Storer Broadcast-
ing Co), 432 Mich 438 (1989), no substantial argument has yet been made
in support of the exercise of federal certified question authority despite
the fact that this Court has been expressly authorized by its own rules for
more than four decades to answer such questions, GCR 1963, 797; MCR
7.305(B), and has, in fact, answered certified questions on a sporadic
basis for more than two decades, In re Certified Questions (Karl v Bryant
Air Conditioning), 416 Mich 558 (1982).
In my judgment, this Court’s authority to answer federally certified
questions derives from the following sources of law:
(1) Michigan Sovereignty. As the Supreme Court of Oklahoma has
observed, “This Court needs no explicit grant of jurisdiction to answer
certified questions from the federal court; such power comes from the
36
Post at 1242.
S
PECIAL
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1231
United States Constitution’s grant [sic, recognition of the reservation,
see US Const, Am X] of state sovereignty.” Shebester v Triple Crown
Insurers, 826 P2d 603, 606n4(Okla,1992). The Ohio Supreme Court has
similarly observed, “[W]e need no grant of jurisdiction in order to answer
certified questions.... In our view, such a power exists by virtue of
Ohio’s very existence as a state in our federal system.” Scott v Bank One
Trust Co, NA, 62 Ohio St 3d 39, 42 (1991).
We begin with a truism: the Ohio Constitution permits the
state to exercise its own sovereignty as far as the United States
Constitution and laws permit. Since federal law recognizes Ohio’s
sovereignty by making Ohio law applicable in federal courts, the
state has the power to exercise and the responsibility to protect
that sovereignty. Therefore, if answering certified questions serves
to further the state’s interests and preserve the state’s sover-
eignty, the appropriate branch of state government—this court—
may constitutionally answer them. [Id.]
See also Sunshine Mining Co v Allendale Mut Ins Co, 105 Idaho 133, 136
(1983); In re Elliott, 74 Wash 2d 600, 616-617 (1968). In answering a
certified question, what this Court does is to preserve the integrity of the
laws and Constitution of Michigan in a circumstance in which a judicial
body that is not a part of this state nonetheless is constitutionally
obligated to apply Michigan laws and the Michigan Constitution. There
are few elements more fundamental to a state’s sovereignty than the
maintenance and preservation of its own legal institutions. There is
perhaps no more indispensable badge of sovereignty than the ability of a
government to enforce its own laws. “The state’s sovereignty is unques-
tionably implicated when federal courts construe state law.” Scott, supra
at 42. “Certification serves to preserve the state’s sovereignty by ensur-
ing that federal courts correctly apply [state law].” Grover v Eli Lilly &
Co, 33 F3d 716, 719 (CA 6, 1994). To the extent that answering a certified
question assists a federal court to apply Michigan laws and the Michigan
Constitution accurately and in accord with the governmental processes
that have been established by “we the people” of Michigan, the sovereign
interests of this state have been furthered. For whenever Michigan law is
misinterpreted, no matter how much care has been taken by a federal
court to faithfully give meaning to that law, a toll has been taken in terms
of the integrity of that law. As the Chief Justice of the Indiana Supreme
Court has observed, the “certified question insures that the state
supreme court decides important and often novel issues of state consti-
tutional law.” Shepard, Is Making State Constitutional Law through
Certified Questions a Good Idea or a Bad Idea?,38ValULR327, 339
(2004). As with any other sovereign, Michigan is entitled to undertake
actions that are reasonably necessary to maintain and preserve the
elements of its sovereignty, including those protective of the foundations
1232 472 M
ICHIGAN
R
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of its own rule of law. And no affirmative grant of authority is required
beyond the inherent attributes of sovereignty.
(2) Federal Structure. In Erie R Co v Tompkins, 304 US 64, 71 (1938),
the United States Supreme Court made clear that a federal court sitting
in a diversity case must apply “the laws of the several states,” including
the interpretations of those laws by the courts of these states.
“[L]aw in the sense in which courts speak of it today does not
exist without some definite authority behind it. The common law
so far as it is enforced in a State, whether called common law or
not, is not the common law generally, but the law of that State
existing by the authority of that State without regard to what it
may have been in England or anywhere else.... [T]heauthority
and only authority is the State, and, if that be so, the voice adopted
by the state as its own (whether it be of its Legislature or of its
Supreme Court) should utter the last word.” [Id. at 79 (citation
omitted).]
Therefore, the Supreme Court concluded that the rule of Swift v Tyson,
41 US (16 Pet) 1 (1842), in which federal “common law” authority had
been placed in the federal courts in diversity cases, posed an “ ‘uncon-
stitutional assumption of powers by Courts of the United States,’ ” Erie,
supra at 79 (citation omitted), and “invaded rights which in our opinion
are reserved by the Constitution to the several states.” Id. at 80. An-
swering certified questions is one reasonable means by which this Court
minimizes the risk that Michigan laws will be misconstrued and misap-
plied by the federal courts. That there may be other means available for
communicating the laws of this state—all of a less effective character
than the certified question, for each would allow the litigant in the
certified case itself to chance the misapplication of Michigan law, without
recourse to this Court—does not preclude Michigan from choosing to
employ the certified question as one important vehicle for ensuring the
integrity of its own laws.
In conjunction with Murdock v City of Memphis,87US(20Wall)590
(1874), in which the United States Supreme Court held that it lacked
appellate jurisdiction to review questions of state law, Erie makes clear
that Michigan is fully responsible for its own law and possesses the
necessary constitutional ammunition to protect that law. “Together
Murdock and Erie give states control over their own law.” Field, Sources
of Law: The Scope of Federal Common Law, 99 Harv L R 881, 921 (1986).
Such control, however, is potential rather than actual until the states act
affirmatively to maintain their own constitutional prerogatives.
In addition to vindicating this state right, the certified question also
serves to vindicate a corollary federal right, which is the right of a litigant
to bring certain types of lawsuits involving issues of state law in federal
court. The certified question procedure assists in ensuring that litigants
are subject to the same state law, whether their lawsuit is brought in
S
PECIAL
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1233
state or federal court. A Michigan litigant, for example, need not sacrifice
his or her constitutional right to bring a lawsuit in federal court out of
concern that a different, and perhaps less protective, state law will be
applied in federal court than in state court. See Elliott, supra at 616 (“We
believe the citizens of the state are entitled to have the same rule of law
applied on an issue regardless of whether it arises in a federal or state
court.”) The certified question procedure ensures a more uniform under-
standing of Michigan law, in whatever forum that law is applied. Thus, at
the same time that the certified question reinforces the sovereign
institutions of our state and prevents the infringement of our state’s
constitutional prerogative to maintain its own law, it also serves to
uphold the right to invoke the federal judicial power by promoting the
equal application of the law in federal and state judicial forums.
Certification is perhaps uniquely suited to further the prin-
ciples of judicial federalism underlying the Supreme Court’s
decision in Erie. By allowing state, rather than federal, courts to
supply “an authoritative response” in the very case in which an
unsettled question of state law arises, certification ensures that
states—acting through the agents of their choice—rather than
federal courts will exercise the “sovereign prerogative of choice”
inherent in the resolution of unsettled questions of state law.
[Clark, Ascertaining the Laws of the Several States,145UPaLR
1459, 1550 (1997) (citations omitted).]
Nothing in the Michigan Constitution expressly grants jurisdiction to the
courts of Michigan to entertain federal claims; it has long been under-
stood that state courts may be required under some circumstances to
resolve such claims, and to adjudicate federal rights. FERC v Mississippi,
456 US 742 (1982); Testa v Katt, 330 US 386 (1947). These judicial
obligations arise out of the federal structure of our constitutional system
and the Supremacy Clause of the federal constitution, art VI. Although I
do not view it as obligatory that a state court must respond to a federally
certified question, cf. Smith, The Anticommandeering Principle and
Congress’s Power to Direct State Judicial Action: Congress’s Power to
Compel State Courts to Answer Certified Questions of State Law,31Conn
L R 649 (1999), the authority to answer such questions, just as the
obligation to resolve certain federal claims and to adjudicate certain
federal rights, is a function of the relationship between the national and
state governments within our federal constitutional architecture.
(3) Equal Footing Doctrine. The United States Supreme Court in
Coyle v Smith, 221 US 559, 580 (1911), observed that our system of
government was predicated upon the “constitutional equality” of the
states, such equality being “essential to the harmonious operation of the
scheme upon which the Republic was organized.” Although it may be that
Michigan can choose to deny itself some aspect of its own sovereignty,
such as preserving the integrity of its own laws when they are applied by
a court of the United States, I would not assume such a denial—one that
1234 472 M
ICHIGAN
R
EPORTS
would place us on unequal footing with virtually every other state of the
Union in terms of the constitutionally available tools for maintaining our
sovereign institutions—absent a clear limitation in our own Constitu-
tion. No such limitation exists, in my judgment. I would not deprive
Michigan, virtually alone among the states, see Schneider, “But Answer
Came There None”: The Michigan Supreme Court and the Certified
Question of State Law, 41 Wayne L R 273, 275 n 1, Appendix (1995); Kaye
& Weissman, Interactive Judicial Federalism: Certified Questions in New
York, 69 Fordham L R 373, Appendix A (2000), of the authority to
maintain effective control over its own laws, nor erode the right of the
people of Michigan in diversity cases, virtually alone among the people of
the United States, to have the dispositive law of their home state applied.
As Const 1963, art 1, § 1 states, “Government is instituted for the[] equal
benefit, security and protection [of the people].” For this Court to nullify
the certified question procedure, either by repeal or disuse, would be to
undermine a procedure that is designed to assist in upholding this
guarantee.
(4) Judicial Power. One argument in opposition to this Court’s
authority to answer federally certified questions is predicated upon Const
1963, art 3, § 8. See Bankey, supra at 468-469. This provision, contained
in the “General Government” article of the Constitution, which precedes
the “Legislative Branch,” “Executive Branch,” and “Judicial Branch”
articles, allows either house of the Legislature or the Governor to certify
questions to this Court. It is argued that this statement of authority
implies the absence of federal certified question authority. This analysis
is in error, in my judgment, for these distinct classes of certified questions
have little in common beyond their nomenclature. The certified question
authority set forth in article 3 modifies the relationships between the
three branches of Michigan government, and would be inappropriately
located in any of the three succeeding articles that address only the
powers of a single one of these branches. Federal certified question
authority, on the other hand, does not affect the “separation of powers”
(which is another matter of attention in article 3, see art 3, § 2), but
rather concerns the sovereignty of Michigan within the American system
of federalism. There is no negative implication for the existence of the
federal certified question authority that reasonably arises from the
creation of the legislative and executive certified question authority since
these two authorities serve altogether different constitutional purposes.
The more relevant provisions to assess in determining whether there
exists federal certified question authority are Const 1963, art 1,§1and
art 6, § 1. The former specifies that “[a]ll political power is inherent in
the people” (emphasis added), while the latter specifies that all the
“judicial power” is reposed in “one court of justice.” That is, from the
source of all of Michigan’s political power, “the people,” the entirety of
the “judicial power” has been given to this Court. Such power could have
been withheld, in whole or part, or granted to some other institution of
government, but it was not. It was reposed in this Court. While “the
courts receive judicial power by grant in the State Constitution, the
whole of such power reposing in the sovereignty is granted to those bodies
S
PECIAL
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1235
except as it may be restricted in the same instrument.” Washington-
Detroit Theater Co v Moore, 249 Mich 673, 680 (1930) (emphasis added).
The historical argument [that a declaratory proceeding is not
part of the judicial power], however much it may circumscribe a
government of granted powers, is not applicable to a sovereign
State [of inherent powers]. [Id.]
The determination of Michigan law is at the core of the judicial power of
this Court. There being no constitutional prohibition upon the consider-
ation of federally certified questions, which are designed only to elicit
such a determination, I believe that the judicial power of Michigan is
broad enough to encompass the consideration of such questions. As a
function of Michigan’s general powers under both the United States and
Michigan constitutions, in contrast to the limited powers of the federal
government under the federal constitution, see US Const, Am X, it is
simply insufficient to argue, as does Justice Y
OUNG
, that the absence of a
specific grant of authority to a state court of Michigan is the equivalent
of a denial of such authority. The argument must instead be that the
“judicial power” of this state, which is all that this Court has been
granted, is not broad enough to encompass federal certified question
authority.
In its analysis of the judicial power, this Court continued in Moore:
When an actual controversy exists between parties, it is sub-
mitted in formal proceedings to a court, the decision of the court is
binding upon the parties and their privies and is res adjudicata of
the issue in any other proceedings in court in which it may be
involved, what else can the decision be but the exercise of judicial
power? [Id. at 680-681.]
In In re Richards, 223 A2d 827, 829-830 (1966), the Maine Supreme
Court expressly relied on Moore’s definition of the judicial power and
proceeded to its conclusion:
Weconclude...thatourparticipation in the certification pro-
cedure will constitute a valid exercise of the “judicial power.” We
are satisfied that more will be involved than the mere rendering of
a purely advisory opinion. The certification by the federal court
becomes by the force of our statute the jurisdictional vehicle for
placing the matter before the court for its action. Parties are before
the court and are provided with the opportunity for presentation
of briefs and oral argument customary upon appeal. The certifica-
tion will make it apparent that there is a genuine live controversy
between the parties pending in the federal court, a controversy
based upon an existing factual situation which will be determined
1236 472 M
ICHIGAN
R
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by our response to questions.... We rely upon the doctrine of
[Erie] to make our decision and opinion given in answer to
questions under this procedure conclusive and determinative in
the federal courts with respect to the state of the law in Maine. [Id.
at 832 (citations omitted).]
Cf. Federated Publications, Inc v City of Lansing, 467 Mich 98, 112 (2002)
(recognizing this Court’s authority in the exercise of the judicial power to
adjudicate moot cases or controversies where they present an issue that
is likely to recur yet regularly evade judicial review).
The subject matter of the federal certified question falls within the
traditional scope of this Court’s “judicial power,” pertaining as it does to
the meaning of Michigan law. Indeed, as noted, it falls within the
exclusive “judicial power” of this Court to give dispositive meaning to
such law. Further, the federal certified question entails the consideration
of fully justiciable questions that are typically within the cognizance of
the judicial power. Nor does the federal certified question call for a
response that is truly in the nature of an “advisory opinion.” Rather,
while the answer to the federal certified question is sought in a context
that is sui generis, the answer elicited from this Court will be relied upon
to resolve an actual case or controversy. In Grover, supra at 719, the Sixth
Circuit Court of Appeals made clear that this Court’s response to a
certified question will be treated as dispositive of that question:
Permission to certify questions of law has been graciously
extended by the highest courts of all the states in our circuit.
Certification has proved to be an important tool for federal courts
sitting in diversity ....Afederalcourtthatcertifies a question
of state law should not be free to treat the answer as merely
advisory unless the state court specifically contemplates that
result. When a state supreme court accepts a certified question, it
voluntarily undertakes a substantial burden and its resolution of
the issue must not be disregarded.
...Certification serves to preserve the state’s sovereignty by
ensuring that federal courts correctly apply the law of [the state].
That state interest in protecting sovereignty would be undermined
were federal courts to ignore the declarations of state law obtained
through certification. [Citations omitted.]
See also Hosp Underwriting Group, Inc v Summit Health Ltd, 63 F3d
486, 493 (CA 6, 1995) (federal courts are “not free to ignore applicable
state law, even if the law is unpopular or represents a minority view,
especially where the state’s legislature and supreme court continue to
approve of the law”). Federal certified questions appertain to genuine
disputes between real disputants, albeit in federal, not state, court. For
this reason, Michigan court rules wisely require a “factual statement”
from the federal court, MCR 7.305(B)(2)(b), and the submission of briefs
S
PECIAL
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1237
and a joint appendix from the parties, MCR 7.305(B)(3)(b)-(c), in order to
reasonably remove the federal certified question from the realm of the
abstract. The court’s “factual statement” must be sufficient to afford
context to this Court in understanding the question certified, a question
that Michigan law “may resolve”—not to persuade us that the proper
question has been certified by the court—for the resolution of the
underlying case remains the responsibility of the federal court. The
parties’ briefings and appendix must similarly supply us with the
information necessary to reasonably resolve the certified question.
Finally, there is no other impediment to the invocation of the judicial
power that arises from the question itself being certified in this case, i.e.,
the certified question does not constitute a “political question” or a
question of a sort that we would not address even if the question had
originated in litigation brought in state court. As a result then of the
specific character of the federal certified question, and as a result of the
procedures established in Michigan for addressing such questions, I am
convinced that this Court’s authority to answer such questions is within
our judicial power, and there is nothing in our Constitution that removes
it from this Court’s power.
Practical Impact. In addition to addressing the matter of constitu-
tional authority to answer the federal certified question, it would be
derelict not to also recognize the many practical benefits of answering
federal certified questions. The intelligent exercise of such authority: (a)
contributes to an expedited process by which the definitive law of
Michigan is resolved by this Court and made available to the federal
courts, Arizonans for Official English v Arizona, 520 US 43, 76 (1997)
(certification process is one useful in “reducing the delay, cutting the cost
and increasing the assurance of gaining an authoritative [state court]
response”); (b) ensures that Michigan law is correctly and equally applied
not only to litigants in diversity cases, but also to litigants in lower state
courts that, in the absence of a definitive decision by this Court, might be
inclined to defer excessively to existing federal court interpretations; (c)
avoids litigative delays and costs far greater than the delays and costs
inherent in certification caused when a federal court determines to
abstain entirely from resolving an undecided issue of state law; (d)
reduces incentives for forum shopping on the part of litigants who may
seek out different federal and state formulations of state law; (e) avoids
a legal regime in which, as former Sixth Circuit Court of Appeals Judge
Wade McCree observed, pending a decision by the Michigan Supreme
Court, “potential litigants are likely to behave as if the federal decision
were the law of the state.” McCree, Foreword, 1976 Annual Survey of
Michigan Law, 23 Wayne L R 255, 257 n 10 (1977), that is, the impact of
failing to answer a certified question is not exclusively upon the federal
litigants in that case, but is also felt by the general citizenry of Michigan,
which in order to avoid litigation will tend to conform their conduct to
what they understand as current law, the law of the federal court; (f)
stabilizes the development of Michigan law by diminishing the degree of
fluctuation in that law likely to result when two parallel judicial tribunals
are responsible for the interpretation of the law; (g) minimizes the
1238 472 M
ICHIGAN
R
EPORTS
duplication of federal and state judicial decision-making resources; (h)
assures the long-term stability of federal court judgments that might
otherwise be called into question by the articulation of state law that is
inconsistent with prior federal interpretations; and (i) obviates the
problem of federal courts having to engage in the unusual judicial
exercise of assessing not what that court understands the law to be in a
given case, but what another court will say thatlawtobe.Thisisa
decidedly distinct exercise from a court assessing the law of a superior
court and applying such law to the case before it, but rather involves
judicial prediction. While I agree with Erie that this exercise is compelled
by our nation’s constitutional structure, I note merely that it is an
unusual responsibility on the part of a federal judge and one with regard
to which in the realm of Michigan law this Court can be of considerable
assistance to federal courts.
Judicial Comity. To answer the federal certified question is also to serve
the interest of comity between federal court and state court, and such an
interest should be served whenever possible. The Sixth Circuit has
demonstrated comity here by the act of certification, for “by using...cer-
tification...thefederal courts [seek to avoid] federal intrusion into the
state law-making function.” Scanelli, The Case for Certification,12Wm&
Mary L R 627, 641 (1971). When not inconsistent with other governmental
interests, such comity is, I believe, expected by the people of Michigan, who
are served by both state and federal institutions. As noted, the Sixth
Circuit here is engaged in carrying out the important and necessary, but
nonetheless unusual, responsibility of attempting to discern the meaning
of as-of-yet undecided state law. To the extent that this Court can assist the
federal court in this nontraditional responsibility by exercising its own
traditional responsibilities of saying what Michigan law is, I can see no
reason why this should not be done. The comity reflected in answering
certified questions goes well beyond our willingness to respond to the
request for assistance by another institution of government; it is also
reflected in the various future tensions that will be avoided by our answer.
As former Fifth Circuit Court of Appeals Judge John R. Brown once
observed, “It has been awkward—and, to some, not a little embarrassing
—when our first guess turns out to be wrong and the state court makes the
second and last guess by reversing our holding.” Brown, Certification in
Action, 7 Cumb L R 455, 455 (1977). “One invaluable attribute of the
certification process...isthat it presents the rare occasion when courts of
different systems can talk to one another about common problems.”
Cuesnongle v Ramos, 835 F2d 1486, 1493 (CA 1, 1987).
Where this Court answers a certified question, there is one less
instance in which a state court will be required to opine that it
“disagrees” with the federal court, or in which a federal court will be
required to opine that it and the Michigan Supreme Court have “dis-
agreed.” Further, in one less instance, neither of these courts will be
required to fashion questionable distinctions in the law in order to avoid
disagreements and confrontations with the other. And in one less
instance, no state court will dismissively treat a federal court decision as
nonprecedential and then expect such federal court in return to respect-
S
PECIAL
O
RDERS
1239
fully abide by the state court decision. As Professor Phillip Kurland has
written, certification constitutes “a demonstration of cooperative judicial
federalism which would justify those of us who think the federal form of
government has a contribution to make toward the preservation of
justice in this country.” Kurland, Toward a Co-operative Judicial Feder-
alism: The Federal Court Abstention Doctrine, 24 FRD 481, 490 (1960);
Lehman Bros v Schein, 416 US 386, 390-391 (1974) (“certification-
. . . helps build a cooperative judicial federalism”).
The Sixth Circuit has acted responsibly in certifying questions to the
state courts within its boundaries, including those state courts that have
been more receptive to certified questions over the years than this Court.
See Schneider, supra at 321 (“Relative to the Michigan Supreme Court,
the highest courts of the other states within the Sixth Circuit appear to
be much more receptive of certified questions from the Sixth Circuit.”);
see, for example, the odd situation of Larson v Johns-Manville Sales
Corp, 427 Mich 301, 310 (1986), in which this Court cited as persuasive
authority a federal district court case decided only after this Court
refused to answer a certified question. The Sixth Circuit has acted
responsibly, and this Court should act equally responsibly in assisting it
to understand the law of our own state, a law to which we are
constitutionally empowered to give dispositive meaning. The comity
inherent in answering the certified question is a comity that is in the
interest of both federal and state courts, as well as of the constitutional
institutions that the judges of these courts take an oath to honor.
Consensus of Authority. Finally, in addition to the several sources of
constitutional authority set forth in this statement, I also draw some
confidence that the federal certified question is a constitutional process
in Michigan from the overwhelming consensus that has developed in
support of this procedure. This consensus is evidenced in part from the
following facts: (a) the overwhelming number of states, although possess-
ing constitutions similar in relevant respects to Michigan’s concerning
the judicial power, themselves entertain certified questions, see Gold-
schmidt, American Judicature Society, Certification of Questions of Law:
Federalism in Practice, pp 34-35 n 10 (survey reporting that only seven
out of 284 state judges questioned had ever refused to certify a question
from a federal court); Schneider, supra at Appendix; (b) Michigan’s court
rule, MCR 7.305(B), permitting certified questions has been in continu-
ous existence since 1963; (c) the Michigan Legislature since at least 1963
has statutorily affirmed the jurisdiction of this Court over “any case
brought before it for review in accordance with the court rules promul-
gated by the supreme court,” including presumably MCR 7.305(B), MCL
600.215; (d) this Court, albeit sporadically, has entertained certified
questions since at least 1982, Karl, supra, and as recently as 2003, In re
Certified Question (Henes Corp v Continental Biomass Industries), 468
Mich 109 (2003), and in 2000, we voted to reject the repeal of MCR
7.305(B); (e) each of the federal circuits, as well as the United States
Supreme Court itself, see, e.g., Fiore v White, 528 US 23 (1999); Kaye &
Weissman, supra at 384 n 65, has certified questions to state courts, and
the Supreme Court has also spoken approvingly of the procedure,
without apparent dissent, on various occasions, see, e.g., Arizonans for
1240 472 M
ICHIGAN
R
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Official English, supra; Clay v Sun Ins Office Ltd, 363 US 207, 212
(1960); and (f) the federal certification procedure is supported by the
Standing Committee on the United States Courts of the State Bar of
Michigan, the Appellate Practice Section of the State Bar of Michigan,
the United States District Courts for the Eastern District and the
Western District of Michigan, the Sixth Circuit Court of Appeals, and the
Federal Bar Association of Michigan.
Response to Justice Y
OUNG
. The thoughtful statement of Justice
Y
OUNG
deserves particular response. To begin with, Justice Y
OUNG
char-
acterizes my position as favoring an “unbounded” grant of judicial
authority. I respectfully but strongly disagree. Rather, I favor an under-
standing of the “judicial power” that is in accord with its traditional
exercise, and consistent with the powers accorded the judiciary under our
Constitution. That my understanding of this power is broader than that
of Justice Y
OUNG
hardly makes this understanding “unbounded.”
The principal flaw in Justice Y
OUNG
’s analysis is its failure to
recognize that the exercise of this Court’s “judicial power” is not merely
“advisory,” but is binding on the federal courts. Of course, in this unique
judicial context, it cannot be binding on the federal courts in the exact
way that our decisions are binding upon the Michigan Court of Appeals
or the circuit court in Oakland County. But it is binding, not merely
because the federal circuit court with jurisdiction over questions certified
to this Court has said that it is binding, but more importantly because of
why they have said it is binding. It is binding because Erie, itself based on
our nation’s constitutional structure, makes it binding. It is not by mere
sufferance or even comity that the Sixth Circuit has made our determi-
nations of Michigan law binding. Rather, “certification serves to preserve
[Michigan’s] sovereignty by ensuring that federal courts correctly apply
the law of [Michigan]. That state interest in protecting sovereignty would
be undermined were federal courts to ignore the declarations of state law
obtained through certification.” Grover, supra at 719. This “state inter-
est,” in truth, constitutes the interest of all governmental institutions,
state and federal, operating within the boundaries of the United States
Constitution.
Moreover, in recognizing this interest, the Sixth Circuit relied on
exactly the same source of law—the United States Constitution and its
definition of the relationship between the national and state
governments—as that relied on in this statement. This is, the one source
of law that the state and federal courts have in common. While Justice
Y
OUNG
views answers to certified questions as merely “advisory” because
one sovereign ultimately cannot force its will upon another, this authority
is better viewed as binding, in my judgment. There is a common source
of law that is supreme to both judicial institutions, and it has been
affirmatively recognized and invoked by each of these institutions in
formal proceedings.
However, even if the Sixth Circuit did not feel so bound—and it has
said that it does—this Court’s exercise of the “judicial power” ultimately
is not delegitimated by the responses or reactions of institutions or
parties beyond our control. An executive officer may promise to ignore
the decisions of this Court, or “massive resistance” may be employed in
S
PECIAL
O
RDERS
1241
opposition to its determinations, but that does not transform a proper
exercise of the “judicial power” into an improper exercise. For the reasons
set forth in this statement, I believe that certified question authority
constitutes a legitimate exercise of “judicial power,” and that Justice
Y
OUNG
has identified nothing within our Constitution or elsewhere that
would deprive Michigan, nearly alone among the states, of this authority.
Finally, Justice Y
OUNG
not only misapprehends this Court’s “judicial
power” by defining it in an overly narrow fashion, but arguably manages
at the same time to define this power in what some may view an overly
broad fashion by suggesting that it is within our authority to instruct the
federal judiciary that they may have certified the wrong question to the
wrong court. However, resolving “choice of law” questions and interpret-
ing federal statutes are matters that are properly within the jurisdiction
of the federal courts. Thus, at least some will view Justice Y
OUNG
as
having his constitutional understandings backward. He would interject
this Court in matters that may be beyond our purview, while denying this
Court a role in matters essential to maintaining the integrity of our
state’s legal institutions.
The truly unfortunate result of Justice Y
OUNG
’s position is that the
institutions created by the people of Michigan for creating and defining
the laws of our state will necessarily be undermined and greater
responsibility for the interpretation of these laws will be ceded to
institutions that are not subject to the exclusive control of the people of
Michigan. It is Justice Y
OUNG
’s argument that this is what the people of
Michigan desire, and this is what they have stated in their charter of
government. I could not disagree more.
Conclusion. For the reasons set forth above, I would answer the
certified questions presented.
By its refusal to answer these certified questions, the majority
contributes to the distortion of our federal system of government by
ceding responsibility for the interpretation of Michigan law to the federal
judiciary, and by diminishing the control of the people of Michigan over
the course of their own law. Those in the majority who have explained
their rationale for their decision have grounded such decision in an
understanding of the Michigan Constitution that did not, and never could
have been able to, secure the support of the independent citizenry of this
or of any other state. Those in the majority who have not explained their
rationale have neglected to identify the prudential considerations that in
their judgment outweigh the defense of state sovereignty.
T
AYLOR
, C.J., and C
ORRIGAN
, J. We join the statement of Justice
M
ARKMAN
.
Order Entered May 26, 2005:
In re C
ONRAD
, No. 128451. The Judicial Tenure Commission has
issued a Decision and Recommendation for an Order of Discipline, to
which the respondent, 37th District Court Magistrate James P. Conrad,
consents. It is accompanied by a Settlement Agreement and Verified
Waiver, Consent, and Agreement. Respondent has agreed to a public
censure and a 180-day suspension without pay. Respondent has also
agreed to remain in the alcohol counseling program that is administered
through the 37th District Court until being discharged from it.
1242 472 M
ICHIGAN
R
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In resolving this matter, we are mindful of the standards set forth in
In re Brown, 461 Mich 1291, 1292-1293 (2000):
[E]verything else being equal:
(1) misconduct that is part of a pattern or practice is more
serious than an isolated instance of misconduct;
(2) misconduct on the bench is usually more serious than the
same misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration
of justice is more serious than misconduct that is prejudicial only
to the appearance of propriety;
(4) misconduct that does not implicate the actual administra-
tion of justice, or its appearance of impropriety, is less serious than
misconduct that does;
(5) misconduct that occurs spontaneously is less serious than
misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice
system to discover the truth of what occurred in a legal contro-
versy, or to reach the most just result in such a case, is more
serious than misconduct that merely delays such discovery;
(7) misconduct that involves the unequal application of justice
on the basis of such considerations as race, color, ethnic back-
ground, gender, or religion are more serious than breaches of
justice that do not disparage the integrity of the system on the
basis of a class of citizenship.
In the present case, those standards are being applied in the context
of the following stipulated findings of fact of the Judicial Tenure
Commission, which, following our de novo review, we adopt as our own:
1. Respondent is, and at all material times was, a magistrate of
the 37th District Court for the city of Warren, Macomb County,
Michigan.
2. As a magistrate, he is subject to all the duties and respon-
sibilities imposed on him by the Michigan Supreme Court, and is
subject to the standards for discipline set forth in MCR 9.104 and
MCR 9.205.
3. On October 4, 2003, two police officers observed Respondent
driving at the intersection of Sherwood and Iowa in Detroit.
4. The officers effectuated a traffic stop based on a suspicion
that Respondent was under the influence of alcohol.
5. After taking Respondent into custody, the police adminis-
tered him two breathalyzer tests.
S
PECIAL
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RDERS
1243
6. The results of each test established that Respondent’s blood
alcohol content was .21.
7. A blood alcohol content of .21 is over the legal limit for
operating a motor vehicle in Michigan, and constitutes operating a
vehicle under the influence of intoxicating liquor, under MCL
257.625.
8. Respondent was the defendant in People v James P. Conrad,
36th District Court Case No. 521712, which was dismissed on the
trial date of December 6, 2004 when the arresting officer failed to
appear.
9. On April 2, 1998, Respondent was driving on Gratiot in
Roseville, Michigan in the early morning hours.
10. A state police trooper effectuated a traffic stop at approxi-
mately 2:45 a.m., under a suspicion that Respondent was driving
under the influence of alcohol.
11. The Macomb County Sheriff department administered
Respondent two breathalyzer tests after Respondent was taken
into custody.
12. The results of each test established that Respondent’s
blood alcohol content was .20.
13. At the time, a blood alcohol content of .10 or higher was
over the legal limit for operating a motor vehicle in Michigan, and
constituted operating a vehicle under the influence of intoxicating
liquor, under MCL 257.625.
14. Respondent admits that his conduct in both instances was
wrong, and he deeply regrets any disgrace or embarrassment he
has brought to the judiciary as a result.
After reviewing the recommendation of the Judicial Tenure Commis-
sion, the settlement agreement, the standards set forth in Brown, and the
above findings of fact, we accept the recommendation of the Commission
and order that Magistrate James Conrad be publicly censured and
suspended without pay for 180 days. Because of respondent’s status as
80% court administrator and 20% magistrate, respondent is ordered to
repay to the district court $3,000 of his salary after 90 days of suspension,
and $3,000 of his salary after 180 days of suspension. This order stands
as our public censure.
Leave to Appeal Granted May 27, 2005:
G
RIEVANCE
A
DMINISTRATOR V
F
IEGER
, No. 127547. The parties are di-
rected to include among the issues to be briefed: (1) whether the Attorney
Discipline Board is empowered to declare Michigan Rules of Professional
Conduct unconstitutional, and (2) whether it is significant that the
1244 472 M
ICHIGAN
R
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respondent’s remarks were made before the expiration of the time period
for filing an application for leave to appeal to this Court in the case that
was the subject of the respondent’s comments. The motion for recusal
and for an evidentiary hearing is also considered, and it is denied.
C
ORRIGAN
,J.(concurring). For the reasons stated in my concurring
opinion in Advocacy Org for Patients & Providers v Auto Club Ins Ass’n,
472 Mich 91 (2005), the recusal decisions of the other six members of the
Court over the last two years, like Justice W
EAVER
’s 251 pre-2003 recusal
decisions, comport with the Constitution and the Michigan Court Rules.
W
EAVER
,J.(dissenting). I oppose the entry of any order in this case at
this time and would hold this case in abeyance until this Court addresses,
resolves, and makes clear for all to know the proper procedures for
handling motions for the recusal of Supreme Court justices from partici-
pation in a case.
1
This Court opened an administrative file on the
question on May 20, 2003, but has yet to address the matter further. See
ADM 2003-26.
The question regarding the participation or nonparticipation of
justices frequently recurs and is a matter of public significance because
even one justice’s decision to participate or not participate can affect the
decision and outcome in a case. As I wrote in Advocacy Org for Patients
& Providers v Auto Club Ins Ass’n, 472 Mich 91, 97-101 (2005) (W
EAVER
,
J., concurring):
A justice’s nonparticipation in a case may arise in one of two
ways. A justice may decide, on his own initiative, not to participate
in a case, and be shown as not participating. Alternatively, a party
may request the recusal of a justice from a case. Recusal is defined
as “[t]he process by which a judge is disqualified on objection of
either party (or disqualifies himself or herself) from hearing a
lawsuit because of self interest, bias or prejudice.” Black’s Law
Dictionary (6th ed).
It is now clear to me that there is a right and an expectation of
the people of Michigan that a justice will participate in every case
unless there is a valid publicly known reason why the justice
should not participate in a particular case. Traditionally, in this
Court a justice’s decision on whether to participate or not partici-
pate in a case has been a secret matter, and justices have not made
public the reasons for that decision. . . . But a justice’s decision
whether to participate or not participate in a case and the reasons
for that decision should not be governed by tradition and secrecy;
they should be governed by the law, the Constitution, and the
Michigan Court Rules made in conformance with the Constitution;
1
The various circumstances under which a justice should be disquali-
fied from a case continue to arise. See, e.g., Scalise v Boy Scouts of
America, Docket No. 128085.
S
PECIAL
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RDERS
1245
and they should be made publicly and in writing for the record.
This Court should set the highest standards for clear, fair, orderly,
and public procedures.
The question whether a justice should participate or not
participate in a case arises with regularity. Since May 2003, when
I proposed opening an administrative file on the recusal procedure
in In re JK, 468 Mich 1239 (2003), a justice has been shown as not
participating, with no reason given, in at least 31 cases....
The questions raised in this and any other case in which a
justice’s participation or nonparticipation arises are:
1) Are individual justices bound by the requirements of art
6,§6ofthe1963 Michigan Constitution that states, “Decisions of
the supreme court...shallbeinwriting and shall contain a concise
statement of the facts and reasons for each decision...”?
2) Do the procedures regarding the disqualification of judges
set forth in Michigan Court Rule 2.003 apply to Supreme Court
justices?
Const 1963, art 6, § 6, which states that “Decisions of the
supremecourt...shallbeinwriting and shall contain a concise
statement of the facts and reasons for each decision . . .” requires
that justices give written reasons for each decision.
3
There is no
more fundamental purpose for the requirement that the decisions
of the Court be in writing than for the decisions to be accessible to
the citizens of the state. Because a justice’s decision to not
participate in a case can, itself, change the outcome of a case, the
decision is a matter of public significance and public access and
understanding regarding a justice’s participation or nonparticipa-
tion is vital to the public’s ability to assess the performance of the
Court and the performance of the Court’s individual justices.
Thus, the highest and best reading of art 6,§6requiresthata
justice’s self-initiated decision not to participate, or a challenged
justice’s decision to participate or not participate, should be in
writing and accessible to the public.
Further, Michigan Court Rule 2.003, which regulates the
procedures for the disqualification of judges, applies to Michigan
Supreme Court justices.... MichiganCourt Rule 2.001 provides
that the rules in chapter 2, which includes MCR 2.003, apply to all
courts established by the Constitution and laws of the state of
Michigan.
5
The Michigan Supreme Court is a court established by
the Michigan Constitution. Thus, a plain reading of the court rule
shows that MCR 2.003 governs the procedures for the disqualifi-
cation of Michigan Supreme Court justices.
Almost two years ago, in May 2003, this Court’s longstanding
failure to follow and apply MCR 2.003 to itself became apparent to
1246 472 M
ICHIGAN
R
EPORTS
me.
6
As a result, I proposed an amendment of MCR 2.003 that
would clarify the applicability of MCR 2.003 and bring MCR
2.003 into conformance with the requirements of Const 1963, art
6, § 6. The amendment I proposed requires a justice to publish in
the record of the case the reason(s) for the justice’s decision
whether to participate or not participate in a case.
7
In response to
my recommendation that the Court open an administrative file
and take public comments on such a rule, the Court opened an
administrative file, ADM 2003-26, on May 20, 2003. But almost
two years later, the Court has not yet placed the proposed
amendment or the issue on any of the public hearing agendas on
administrative matters held during that time. There have been
five such public hearings since May 2003: September 23, 2003,
January 29, 2004, May 27, 2004, September 15, 2004, and most
recently January 27, 2005. Nor has the Court taken any other
action regarding a clear, fair, orderly, and public procedure for the
participation or nonparticipation of justices of the Supreme
Court.
A justice’s decision whether to participate or not participate in
a case and the reasons for that decision should not be governed by
tradition and secrecy; they should be governed by the law, the
Constitution, and the Michigan Court Rules made in conformance
with the Constitution; and they should be made publicly and in
writing for the record. This Court should set the highest standards
for clear, fair, orderly, and public procedures.
_____________________________________________________________
3
Art6,§6ofthe1963 Michigan Constitution states, in full:
Decisions of the supreme court, including all deci-
sions on prerogative writs, shall be in writing and shall
contain a concise statement of the facts and reasons for each
decision and reasons for each denial of leave to appeal.
When a judge dissents in whole or in part he shall give in
writing the reasons for his dissent.
5
MCR 2.001 states:
The rules in this chapter govern procedure in all civil
proceedings in all courts established by the constitution and
laws of the State of Michigan, except where the limited
jurisdiction of a court makes a rule inherently inapplicable
or where a rule applicable to a specific court or a specific
type of proceeding provides a different procedure.
6
In In re JK, 468 Mich 1239 (2003), my participation in a case
became an issue, which led me to research the procedures govern-
ing the participation and disqualification of justices.
7
See In re JK, 468 Mich 1239 (2003).
_____________________________________________________________
S
PECIAL
O
RDERS
1247
Thus, as I concluded in Advocacy Org for Patients & Providers, supra
at 101, I conclude again by saying:
I continue to urge the Court to recognize, open for public
comment, and address this ongoing need to have clear, fair, orderly,
and public procedures concerning the participation or nonpartici-
pation of justices.
Leave to Appeal From Attorney Discipline Board Denied May 31, 2005:
G
RIEVANCE
A
DMINISTRATOR V
L
EWIS
, No. 127598.
Order Entered June 7, 2005:
P
ROPOSED
A
MENDMENTS OF
MCR 8.103, 8.107
AND
8.110. On order of the
Court, this is to advise that the Court is considering amendments of
Rules 8.103, 8.107, and 8.110 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas for
public hearings are posted at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[The present language would be amended as indicated below:]
R
ULE
8.103. S
TATE
C
OURT
A
DMINISTRATOR.
The state court administrator, under the Supreme Court’s supervi-
sion and direction, shall:
(1)–(3) [Unchanged.]
(4) File a request for investigation with the Judicial Tenure Commis-
sion against each judge who consistently fails to comply with the caseload
management standards articulated in Administrative Order No. 2003-7
or fails to accurately report all matters undecided in compliance with the
reporting requirement articulated in MCR 8.107.
(4)-(11) [Renumbered (5)-(12), but otherwise unchanged.]
R
ULE
8.107. S
TATEMENT BY
T
RIAL
J
UDGE AS TO
M
ATTERS
U
NDECIDED.
(A) Time. Matters under submission to a judge or judicial officer
should be promptly determined. Short deadlines should be set for
presentation of briefs and affidavits and for production of transcripts.
Decisions, when possible, should be made from the bench or within a few
days of submission; otherwise a decision should be rendered no later than
35 days after submission. For the purpose of this rule, the time of
submission is the time the last argument or presentation in the matter
1248 472 M
ICHIGAN
R
EPORTS
was made, or the expiration of the time allowed for filing the last brief or
production of transcripts, as the case may be.
(B) Report as to Matters Undecided. Every trial judge shall, oOn the
first business day of January, May, and September, April, July, and
October of each year, every trial judge shall file a certified statement with
the state court administrator a certified statement in the form prescribed
by the state court administrator., containing full information on any
matter submitted to the judge for decision more than 4 months earlier
which remains undecided which exceeded 56 days from submission at any
time during the reporting period. The judge shall also set forth in the
statement the reason a matter remains undecided. For the purpose of this
rule the time of submission is the time the last argument or presentation
in the matter was made or the expiration of the time allowed for filing the
last brief, as the case may be. If the judge has no cases to report, the word
“none” on a signed report is required. The statement shall provide
information on all matters pending during the reporting period that were
not decided within 56 days from submission. The judge shall state the
reason that a decision was not made within 56 days. A report is required
regardless of whether there is any case to report. A copy of the report
shall be filed with the chief judge of the court.
R
ULE
8.110. C
HIEF
J
UDGE
R
ULE.
(A)-(B) [Unchanged.]
(C) Duties and Powers of Chief Judge.
(1) [Unchanged.]
(2) As the presiding officer of the court, a chief judge shall:
(a) call and preside over meetings of the court;
(b) appoint committees of the court;
(c) initiate policies concerning the court’s internal operations and its
position on external matters affecting the court;
(d) meet regularly with all chief judges whose courts are wholly or
partially within the same county;
(e) represent the court in its relations with the Supreme Court, other
courts, other agencies of government, the bar, the general public, and the
news media, and in ceremonial functions; and
(f) counsel and assist other judges in the performance of their
responsibilities.; and
(g) cooperate with all investigations conducted by the Judicial Tenure
Commission.
(3)-(4) [Unchanged.]
(5) The chief judge of the court in which criminal proceedings are
pending shall have filed with the state court administrator a monthly
report setting forth the reasons for delay in the proceedings:
(a) in felony cases in which there has been a delay of 28 days between
the hearing on the preliminary examination or the date of the waiver of
the preliminary examination and the arraignment on the information or
indictment; more than 154 days between the order binding the defendant
over to circuit court and adjudication;
S
PECIAL
O
RDERS
1249
(b) in felony cases in which there has been a delay of 6 months
between the date of the arraignment on the information or indictment
and the beginning of trial;
(b)(c) in misdemeanor cases and cases involving local ordinance
violations that have criminal penalties in which there has been a delay of
6 months more than 91 days between the date of the arraignment
defendant’s first appearance on the warrant and complaint or citation
and the beginning of the trial adjudication;
(c) In computing the 91-day and 154-day periods, the court shall
exclude periods of delay
(1) between the time a preadjudication warrant is issued and a
defendant is arraigned;
(2) between the time a defendant is referred for evaluation to
determine whether he or she is competent to stand trial and the receipt
of the report; or
(3) during the time a defendant is deemed incompetent to stand trial.
(d) in felony cases in which a defendant is incarcerated longer than 6
months and in misdemeanor cases in which a defendant is incarcerated
longer than 28 days.
(6)-(7) [Unchanged.]
(D) [Unchanged.]
Staff Comment: New MCR 8.107(A) would require a judge to decide
matters promptly after submission. MCR 8.107(B) would require a judge
to submit quarterly reports that include information on all matters
pending during the reporting period that were not decided within 56 days
of submission.
The amendments of MCR 8.110(C) would require monthly reports to
the state court administrator in felony cases where there has been a delay
of more than 154 days between the order binding a defendant over to
circuit court and adjudication in felony cases, or a delay of more than 91
days between a defendant’s first appearance on the warrant and com-
plaint, or citation, and adjudication in misdemeanor cases and local
ordinance violations that carry criminal penalties.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by September 1, 2005,
When filing a comment, please refer to ADM File No. 2004-42. Your
comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
Order Entered June 8, 2005:
P
ROPOSED
A
MENDMENT OF
MCR 9.221. On order of the Court, this is to
advise that the Court is considering an amendment of Rule 9.221 of the
Michigan Court Rules. Before determining whether the proposal should
1250 472 M
ICHIGAN
R
EPORTS
be adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or the
merits of the proposal, or to suggest alternatives. The Court welcomes
the views of all. This matter also will be considered at a public hearing.
The notices and agendas for public hearings are posted at
www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[The present language would be amended as indicated below:]
R
ULE
9.221. C
ONFIDENTIALITY;
D
ISCLOSURE.
(A)-(H) [Unchanged.]
(I) Disclosure to Michigan Supreme Court. Regardless of whether a
formal complaint has been filed, providing any information to the
Michigan Supreme Court means that both confidentiality and privilege
has been waived for that information, and the Court may include that
information in its decisions.
Staff Comment: New subrule (I) would waive confidentiality and
privilege, thus allowing inclusion of the information in the Supreme
Court’s decisions regardless of whether a formal complaint has been filed.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by October 1, 2005, at
P.O. Box 30052, Lansing, MI 48909, or [email protected]. When
filing a comment, please refer to ADM File No. 2004-33. Your
comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
Rehearing Denied June 14, 2005:
J
ARRAD V
I
NTEGON
N
ATIONAL
I
NSURANCE
C
OMPANY
, No. 126176. Reported
ante at 207.
C
AVANAGH
and K
ELLY
, JJ. We would grant rehearing.
Order Entered June 15, 2005:
P
ROPOSED
A
MENDMENT OF
MRPC 1.15. On order of the Court, this is to
advise that the Court is considering amendments of Rule 1.15 of the
Michigan Rules of Professional Conduct. Before determining whether the
proposal should be adopted, changed before adoption, or rejected, this
notice is given to afford interested persons the opportunity to comment
on the form or the merits of the proposal or to suggest alternatives. The
Court welcomes the views of all. This matter also will be considered at a
S
PECIAL
O
RDERS
1251
public hearing. The notices and agendas for public hearings are posted at
www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[MRPC 1.15 is replaced with the following new language,
but note Alternatives A-C in subsection (e) as indicated below:]
R
ULE
1.15. S
AFEKEEPING
P
ROPERTY.
(a) Definitions.
(1) “Allowable reasonable fees” for IOLTA accounts are per check
charges, per deposit charges, a fee in lieu of a minimum balance, federal
deposit insurance fees, sweep fees, and a reasonable IOLTA account
administrative or maintenance fee. All other fees are the responsibility of,
and may be charged to, the lawyer maintaining the IOLTA account. Fees
or charges in excess of the interest or dividends earned on the account for
any month or quarter shall not be taken from interest or dividends
earned on other IOLTA accounts or from the principal of the account.
(2) An “eligible institution” for IOLTA accounts is a bank or savings
and loan association authorized by federal or state law to do business in
Michigan, the deposits of which are insured by an agency of the federal
government, or is an open-end investment company registered with the
Securities and Exchange Commission authorized by federal or state law
to do business in Michigan. The eligible institution must pay no less on
an IOLTA account than the highest interest rate or dividend generally
available from the institution to its non-IOLTA customers when the
IOLTA account meets the same minimum balance or other eligibility
qualifications. Interest or dividends and fees shall be calculated in
accordance with the eligible institution’s standard practice, but institu-
tions may elect to pay a higher interest or dividend rate and may elect to
waive any fees on IOLTA accounts.
(3) “IOLT A account” refers to an interest- or dividend-bearing account,
as defined by the Michigan State Bar Foundation, at an eligible institution
from which funds may be withdrawn upon request as soon as permitted by
law. An IOLTA account shall include only client or third person funds that
cannot earn income for the client or third person in excess of the costs
incurred to secure such income while the funds are held.
(4) “Non-IOLTA account” refers to an interest- or dividend-bearing
account from which funds may be withdrawn upon request as soon as
permitted by law in banks, savings and loan associations, and credit
unions authorized by federal or state law to do business in Michigan, the
deposits of which are insured by an agency of the federal government.
Such an account shall be established as:
(A) a separate client trust account for the particular client or matter
on which the net interest or dividend will be paid to the client or third
person, or
(B) a pooled client trust account with subaccounting by the bank or
savings and loan association or by the lawyer, which will provide for
computation of net interest or dividend earned by each client or third
person’s funds and the payment thereof to the client or third person.
1252 472 M
ICHIGAN
R
EPORTS
(5) “Lawyer” includes a law firm or other organization with which a
lawyer is professionally associated.
(b) A lawyer shall:
(1) promptly notify the client or third person when funds or property
in which a client or third person has an interest is received;
(2) preserve complete records of such account funds and other
property for a period of five years after termination of the representation;
and
(3) promptly pay or deliver any funds or other property that the client
or third person is entitled to receive, except as stated in this rule or
otherwise permitted by law or by agreement with the client or third
person, and, upon request by the client or third person, promptly render
a full accounting regarding such property.
(c) When two or more persons (one of whom may be the lawyer) claim
interest in the property, it shall be kept separate by the lawyer until the
dispute is resolved. The lawyer shall promptly distribute all portions of
the property as to which the interests are not in dispute.
(d) A lawyer shall hold property of clients or third persons in
connection with a representation separate from the lawyer’s own prop-
erty. All client or third person funds shall be deposited in an IOLTA or
non-IOLTA account. Other property shall be identified as such and
appropriately safeguarded.
ALTERNATIVE A
(e) In determining whether client or third person funds should be
deposited to an IOLTA account or a non-IOLTA account, a lawyer shall
consider the following factors:
(1) the amount of interest or dividends the funds would earn during
the period that they are expected to be deposited in light of (a) the
amount of the funds to be deposited; (b) the expected duration of the
deposit, including the likelihood of delay in the matter for which the
funds are held; and (c) the rates of interest or yield at financial
institutions where the funds are to be deposited;
(2) the cost of establishing and administering non-IOLTA accounts for
the client or third person’s benefit, including service charges or fees, the
lawyer’s services, preparation of tax reports, or other associated costs;
(3) the capability of financial institutions or lawyers to calculate and
pay income to individual clients or third persons; and
(4) any other circumstances that affect the ability of the funds to earn
a net return for the client or third person.
ALTERNATIVE B
(e) In determining whether client or third person funds should be
deposited to an IOLTA account or a non-IOLTA account, a lawyer shall
consider the following factors:
S
PECIAL
O
RDERS
1253
(1) the amount of interest or dividends the funds would earn during
the period that they are expected to be deposited in light of (a) the
amount of the funds to be deposited; (b) the expected duration of the
deposit, including the likelihood of delay in the matter for which the
funds are held; and (c) the rates of interest or yield at financial
institutions where the funds are to be deposited;
(2) the cost of establishing and administering non-IOLTA accounts for
the client or third person’s benefit, including service charges or fees, the
lawyer’s services, preparation of tax reports, or other associated costs;
(3) the capability of financial institutions or lawyers to calculate and
pay income to individual clients or third persons; and
(4) any other circumstances that affect the ability of the funds to earn
a net return for the client or third person.
The lawyer shall base the decision solely on whether the funds could
be invested to provide a positive net return for the client.
ALTERNATIVE C
(e) In determining whether client or third person funds should be
deposited to an IOLTA account or a non-IOLTA account, a lawyer shall
base the decision solely on whether the funds could be invested to provide
a positive net return for the client.
(f) A lawyer may deposit the lawyer’s own funds in a client trust
account only in an amount reasonably necessary to pay financial insti-
tution service charges or fees or to obtain a waiver of service charges or
fees.
(g) Legal fees and expenses that have been paid in advance shall be
deposited in a client trust account and may be withdrawn only as fees are
earned or expenses incurred.
(h) No interest or dividends from the client trust account shall be
available to the lawyer.
(i) The lawyer shall direct the eligible institution to:
(1) remit the interest and dividends from an IOLTA account, less
allowable reasonable fees, if any, to the Michigan State Bar Foundation at
least quarterly;
(2) transmit with each remittance a report which shall identify each
lawyer for whom the remittance is sent, the amount of remittance
attributable to each IOLTA account, the rate and type of interest or
dividends applied, the amount of interest or dividends earned, the
amount and type of fees deducted, if any, and the average account balance
for the period in which the report is made; and
(3) transmit to the depositing lawyer a report in accordance with
normal procedures for reporting to its depositors.
(j) A lawyer’s good-faith decision regarding the deposit or holding of
such funds in an IOLTA account is not reviewable by a disciplinary body.
A lawyer shall review the IOLTA account at reasonable intervals to
determine whether changed circumstances require the funds to be
deposited prospectively in a non-IOLTA account.
1254 472 M
ICHIGAN
R
EPORTS
Staff Comment: The proposal to amend MRPC 1.15 would conform
with the decision in Brown v Legal Foundation of Washington, 538 US
216; 123 S Ct 1406; 155 L Ed 2d 376 (2003), to create interest rate parity
with non-IOLTA investments consistent with changes in financial prod-
ucts presently available on the market, and to make other revenue-
enhancing modifications to the IOLTA program.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to
the Supreme Court Clerk in writing or electronically by October 1, 2005,
When filing a comment, please refer to ADM File No. 2003-19.
Your comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
Clarification Granted June 24, 2005:
In re C
ONRAD
, No. 128451. The order of May 26, 2005, 472 Mich 1242,
is amended to provide that the 180-day suspension without pay of 37th
District Court Magistrate James P. Conrad shall commence on July 1,
2005.
Order Entered June 28, 2005:
P
ROPOSED
A
MENDMENTS OF
MCR 5.144, 5.203, 5.207, 5.302, 5.307, 5.404,
and 5.409. On order of the Court, this is to advise that the Court is
considering amendments of Rules 5.144, 5.203, 5.207, 5.302, 5.307, 5.404,
and 5.409 of the Michigan Court Rules. Before determining whether the
proposals should be adopted, changed before adoption, or rejected, this
notice is given to afford interested persons the opportunity to comment
on the form or the merits of the proposals or to suggest alternatives. The
Court welcomes the views of all. This matter will be considered at a public
hearing. The notices and agendas for public hearings are posted on the
Court’s website at www.courts.michigan.gov/supremecourt.
Publication of these proposals does not mean that the Court will issue
an order on the subject, nor does it imply probable adoption of the
proposals in their present form.
[The present language would be amended as indicated below:]
R
ULE
5.144. A
DMINISTRATIVELY
C
LOSED
F
ILE.
(A) Administrative Closing. The court may administratively close a
file
(1) for failure to file a notice of continuing administration as provided
by MCL 700.3951(3) or
(2) for other reasons as provided by MCR 5.203(D) or, after notice and
hearing, upon a finding of good cause.
S
PECIAL
O
RDERS
1255
In a conservatorship, the court may administratively close a file only
when there are insufficient assets in the estate to employ a successor or
special fiduciary after notice and hearing, upon a finding of good cause.
(B) [Unchanged.]
R
ULE
5.203. F
OLLOW
-U
P
P
ROCEDURES.
Except in the instance of a personal representative who fails to timely
comply with the requirements of MCL 700.3951(1), if it appears to the
court that the fiduciary is not properly administering the estate, the
court shall proceed as follows:
(A)-(C) [Unchanged.]
(D) Suspension of Fiduciary, Appointment of Special Fiduciary. If the
fiduciary fails to perform the duties required within the time allowed, the
court may do any of the following: suspend the powers of the dilatory
fiduciary, appoint a special fiduciary, and close the estate administration.
If the court suspends the powers of the dilatory fiduciary or closes the
estate administration, the court must notify the dilatory fiduciary, the
attorney of record for the dilatory fiduciary, the sureties on any bond of
the dilatory fiduciary that has been filed, the financial institution where
the dilatory fiduciary has deposited funds, any guardian ad litem, and the
interested persons at their addresses shown in the court file. This rule
does not preclude contempt proceedings as provided by law.
(E) [Unchanged.]
R
ULE
5.207. S
ALE OF
R
EAL
E
STATE.
(A) Petition. Any petition to approve the sale of real estate must
contain the following:
(1) the terms and purpose of the sale,
(2) the legal description of the property, and
(3) the financial condition of the estate before the sale, and
(4) an appended copy of the most recent assessor statement showing
the State Equalized Value of the property. If the court is not satisfied that
the evidence provides the fair market value, a written appraisal may be
ordered.
(B) [Unchanged.]
R
ULE
5.302. C
OMMENCEMENT OF
D
ECEDENT
E
STATES.
[Alternative A]
(A) Methods of Commencement. A decedent estate may be com-
menced by filing an application for an informal proceeding or a petition
for a formal testacy proceeding. A request for supervised administration
may be made in a petition for a formal testacy proceeding. Except as
provided in this court rule, requiring additional documentation at the
time of filing the petition or application for commencement, such as a
death certificate or additional information about the proposed personal
representative, is prohibited.
(B)-(D) [Unchanged.]
R
ULE
5.302. C
OMMENCEMENT OF
D
ECEDENT
E
STATES.
[Alternative B]
(A) Methods of Commencement. A decedent estate may be com-
menced by filing an application for an informal proceeding or a petition
1256 472 M
ICHIGAN
R
EPORTS
for a formal testacy proceeding. A request for supervised administration
may be made in a petition for a formal testacy proceeding. When filing
either an application or petition to commence a decedent estate, a
certified copy of the death certificate must be attached. Requiring
additional documentation, such as information about the proposed per-
sonal representative, is prohibited.
(B)-(D) [Unchanged.]
R
ULE
5.307. R
EQUIREMENTS
A
PPLICABLE TO ALL
D
ECEDENT
E
STATES.
(A) Inventory Fee. Within 91 days of the date of the letters of
authority, the personal representative must submit to the court the
information necessary for computation of the probate inventory fee. In
calculating the inventory fee, deductions shall be allowed for secured
loans on property listed on the inventory, but no other deductions shall be
allowed. The inventory fee must be paid no later than the filing of the
petition for an order of complete estate settlement under MCL 700.3952,
the petition for settlement order under MCL 700.3953, or the sworn
statement under MCL 700.3954, or one year after appointment, which-
ever is earlier.
(B)-(D) [Unchanged.]
R
ULE
5.404. G
UARDIANSHIP OF
M
INOR.
(A) Petition for Guardianship of Minor. If the court requires the
petitioner to file a social history before hearing a petition for guardian-
ship of a minor, it shall do so on a form approved by the State Court
Administrative Office. The information in the social history for minor
guardianship is confidential, and it is not to be released other than to the
court, the parties, or the attorneys for the parties, except on court order.
(A)-(E)(B)-(F) [Relettered, but otherwise unchanged.]
R
ULE
5.409. R
EPORT OF
G
UARDIAN;
I
NVENTORIES AND
A
CCOUNTS OF
C
ONSERVA-
TORS.
(A) [Unchanged.]
(B) Inventories.
(1) [Unchanged.]
(2) Filing and Service. Within 56 days after appointment, a conserva-
tor or, if ordered to do so, a guardian shall file with the court a verified
inventory of the estate of the protected person, serve copies on the
persons required by law or court rule to be served, and file proof of service
with the court. In valuing joint property listed on the inventory, the
conservator or guardian must identify the value of the part of the
property owned by the ward.
(C) Accounts.
(1) Filing, Service. A conservator must file an annual account unless
ordered not to by the court. A guardian must file an annual account if
ordered by the court. The account must be served on interested persons,
and proof of service must be filed with the court. The copy of the account
served on interested persons must include a notice that any objections to
S
PECIAL
O
RDERS
1257
the account should be filed with the court and noticed for hearing. When
required, an accounting must be filed within 56 days after the end of the
accounting period.
(2)-(3) [Unchanged.]
(4) Exception, Conservatorship of Minor. Unless otherwise ordered by
the court, no accounting is required in a minor conservatorship where the
assets are restricted or in a conservatorship where no assets have been
received by the conservator. If the assets are ordered to be placed in a
restricted account, proof of the restricted account must be filed with the
court within 14 days of the conservator’s appointment or receipt of funds.
The conservator must file with the court an annual verification of funds
on deposit with a copy of the corresponding financial institution state-
ment attached.
(5) Contents. The accounting is subject to the provisions of MCR
5.310(C)(2)(c) and (d), except that references to a personal representative
shall be to a conservator. A copy of the corresponding financial institution
statement for all liquid assets, dated within 30 days of the end of the
accounting period, must be appended to verify assets on hand at the end
of the accounting period, unless waived by the court for good cause.
(6) Periodic Review. The court shall either review or allow accounts
annually. Accounts should be allowed at least once every three years.
Unless accounts have been allowed, the court shall review the accounts
no less often than once every three years.
(D)-(F) [Unchanged.]
Staff Comment: The proposed amendments result from the State
Court Administrative Office’s statewide conservatorship case review
prompted by the Performance Audit of Selected Probate Court Conser-
vatorship Cases by the Michigan Office of the Auditor General, and the
State Bar of Michigan Probate and Estate Planning Section’s Uniformity
of Practice Committee’s survey of probate court practices. The amend-
ment of MCR 5.144(A)(2) eliminates the ability to close a conservatorship
estate because of suspension of a fiduciary unless there are insufficient
funds available to hire a special fiduciary, only after notice, hearing, and
a showing of good cause. The amendment of MCR 5.203(D) adds the
financial institution and guardian ad litem to the list required to receive
notice when a fiduciary is suspended. The amendment of MCR 5.207(A)
allows for better court oversight when real property is sold. [Alternative
A—The amendment of MCR 5.302(A) prohibits a court from requiring
documentation to commence an estate that is not legally required.]
[Alternative B—The amendment of MCR 5.302(A) requires that a
certified copy of a death certificate be attached to the petition or
application when commencing a decedent estate and requiring additional
documentation is prohibited.] The amendment of MCR 5.307(A) allows
for the deduction of secured loans when calculating the inventory fee due.
The amendment of MCR 5.409(C)(1) clarifies that the fiduciary must
serve the account on the interested persons and file the proof of service
with the court. The amendment of MCR 5.404(A) creates a new subsec-
tion that requires the use of an SCAO approved social history form when
one is required to be filed with a petition for guardianship of a minor. The
1258 472 M
ICHIGAN
R
EPORTS
amendment of MCR 5.409(B)(2) requires the valuation of the portion of
joint property listed on the inventory that belongs to the protected
individual. The amendment of MCR 5.409(C)(4) provides the process for
filing a proof of restricted account and annual verification of funds on
deposit with the court. The amendment of MCR 5.409(C)(5) adds the
requirement to attach a financial institution statement to the annual
account. The amendment of MCR 5.409(C)(6) requires the court to either
review or allow the account annually and to allow the accounts at least
once every three years.
The staff comment is published only for the benefit of the bench and
bar and is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to
the Supreme Court Clerk in writing or electronically by October 1, 2005,
When filing a comment, please refer to ADM File No. 2004-54.
Your comments and the comments of others will be posted at
www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
S
PECIAL
O
RDERS
1259
INDEX-DIGEST
INDEX–DIGEST
ABANDONMENTS—See
E
ASEMENTS
2
ACTIONS
D
ECLARATORY
J
UDGMENTS
1. An “actual controversy” exists for purposes of the court
rule regarding declaratory judgments where a declara-
tory judgment is necessary to guide a plaintiff’s future
conduct in order to preserve his future rights; a court,
although precluded from deciding hypothetical issues,
may reach issues before actual injuries or losses have
occurred; the essential requirement is that the plaintiff
plead and prove facts that indicate an adverse interest
necessitating the sharpening of the issues raised (MCR
2.605[A]). Associated Builders & Contractors v Dep’t of
Consumer & Industry Services Director, 472 Mich 117.
H
EAD
S
TART
A
CT
2. The courts of Michigan have concurrent jurisdiction
over actions brought under the Head Start Act because
Congress has done nothing to affirmatively divest state
courts of their presumptively concurrent jurisdiction
over such actions and because, under the Michigan
Constitution, the circuit courts of this state have origi-
nal jurisdiction in all matters not prohibited by law.
(Const 1963, art 6, § 13; 42 USC 9831 et seq.). Office
Planning Group, Inc v Baraga-Houghton-Keweenaw
Child Development Bd, 472 Mich 479.
3. There is no private cause of action to enforce the
disclosure requirements of § 9839(a) of the Head Start
Act, which provides for “reasonable public access” to
1379
information (42 USC 9831 et seq.). Office Planning
Group, Inc v Baraga-Houghton-Keweenaw Child Devel-
opment Bd, 472 Mich 479.
P
ARTIES
4. To have standing to bring an action where standing is
not expressly conferred by the Constitution or by stat-
ute, first, a plaintiff must have suffered an injury in fact,
that is an invasion of a legally protected interest that is
concrete and particularized and actual or imminent, not
conjectural or hypothetical, second, there must be a
causal connection between the injury and the conduct
complained of, the injury must be fairly traceable to the
challenged action of the defendant and not the result of
the independent action of some third party, and third, it
must be likely, not merely speculative, that the injury
will be redressed by a favorable decision. Associated
Builders & Contractors v Dep’t of Consumer & Industry
Services Director, 472 Mich 117.
ACTUAL CONTROVERSIES—See
A
CTIONS
1
ADVERSE INFERENCES—See
E
VIDENCE
2
ALLOWABLE EXPENSES—See
I
NSURANCE
4
AMPUTATIONS—See
W
ORKER’S
C
OMPENSATION
1
APPEAL—See
J
URY
1
M
UNICIPAL
C
ORPORATIONS
2
S
ENTENCES
1, 2
BOUNDARIES
H
OME
R
ULE
C
ITIES
1. The Home Rule City Act does not allow a single petition
and a single vote to encompass detachment of land from
a city for addition to multiple townships (MCL 117.1 et
seq.). Casco Twp v Secretary of State, 472 Mich 566.
2. Residents of one township are not qualified electors for
1380 472 M
ICHIGAN
R
EPORTS
purposes of determining a change of boundaries for
another township through detachment proceedings un-
der the Home Rule City Act (MCL 117.1 et seq.). Casco
Twp v Secretary of State, 472 Mich 566.
CAUTIONARY INSTRUCTIONS—See
C
RIMINAL
L
AW
1
CIVIL RIGHTS
C
IVIL
R
IGHTS
A
CT
1. Magee v DaimlerChrysler Corp, 472 Mich 108.
E
MPLOYMENT
D
ISCRIMINATION
2. A plaintiff seeking to establish a prima facie case of
unlawful employment-related retaliation under the
Civil Rights Act must show that the plaintiff engaged in
a protected activity, that this was known by the defen-
dant, that the defendant took an employment action
adverse to the plaintiff, and that there was a causal
connection between the protected activity and the ad-
verse employment action (MCL 37.2701). Garg v Ma-
comb Co Community Mental Health Services, 472 Mich
263.
3. The continuing violations doctrine announced in Sum-
ner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986),
which allows consideration of acts falling outside the
three-year limitations period of MCL 600.5805(1) and
(10) applicable to actions under the Civil Rights Act, is
inconsistent with the language of the statute of limita-
tions and may no longer be applied. Garg v Macomb Co
Community Mental Health Services, 472 Mich 263.
W
ORKPLACE
S
EXUAL
H
ARASSMENT
4. An agent of an employer may be held individually liable
under the Civil Rights Act for sexually harassing an
employee in the workplace (MCL 37.2101 et seq.).
Elezovic v Ford Motor Co, 472 Mich 408.
COMMON LIABILITY—See
T
ORTS
1
COMPENSABLE EXPENSES—See
I
NSURANCE
3
CONCURRENT JURISDICTION—See
A
CTIONS
2
I
NDEX
-D
IGEST
1381
CONSENSUAL STOP—See
S
EARCHES AND
S
EIZURES
1
CONSTITUTIONAL LAW
C
ONFRONTATION
C
LAUSE
1. Harmless error analysis applies to claims concerning
Confrontation Clause errors; a constitutional error is
harmless if it is clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty
absent the error (US Const, Am VI). People v Shepherd,
472 Mich 343.
D
OUBLE
J
EOPARDY
2. The power of separate states to undertake criminal
prosecutions of a defendant for a single act that consti-
tutes a transgression of the law of each state derives
from separate and independent sources of power and
authority; the dual sovereignty doctrine provides that
an act denounced as a crime by both states may be
punished by both states (US Const, Am V; Const 1963,
art 1, § 15). People v Davis, 472 Mich 156.
CONTINUING VIOLATIONS DOCTRINE—See
C
IVIL
R
IGHTS
3
CONTRACTS
R
ELEASES
1. A material difference exists between a covenant not to
sue and a release; a release immediately discharges an
existing claim or right, while a covenant not to sue is
merely an agreement not to sue on an existing claim
and it does not extinguish the claim or cause of action.
J&JFarmerLeasing v Citizens Ins Co, 472 Mich 353.
CONTRIBUTION
S
ETTLEMENTS
1. A right to seek contribution following a settlement is not
precluded as a result of the 1995 tort reform legislation
in cases in which liability among multiple tortfeasors is
now several only rather than joint and several (1995 PA
161, 1995 PA 249). Gerling Konzern Allgemeine Ver-
sicherungs AG v Lawson, 472 Mich 44.
2. A tortfeasor who enters into a settlement with an
injured party is entitled under MCL 600.2925a(3) to
1382 472 M
ICHIGAN
R
EPORTS
recover contribution from another tortfeasor liable for
the same injury where none of the circumstances enu-
merated in § 2925a(3)(a)-(d) exists; the amount of con-
tribution that may be recovered is limited to the amount
paid in settlement in excess of the settling tortfeasor’s
pro rata share. Gerling Konzern Allgemeine Ver-
sicherungs AG v Lawson, 472 Mich 44.
COOPERATION WITH LAW ENFORCEMENT—See
P
AROLE
1, 2
COORDINATION OF BENEFITS—See
I
NSURANCE
1, 2
CORRECTED STANDARD OF LOSS—See
W
ORKER’S
C
OMPENSATION
2
COVENANTS NOT TO SUE—See
C
ONTRACTS
1
CRIMINAL LAW
A
CCOMPLICE
T
ESTIMONY
1. An unpreserved claim on appeal that a trial court failed
to give a cautionary jury instruction regarding the
testimony of a claimed accomplice is reviewed for plain
error that affects the substantial rights of the defen-
dant; the reviewing court must be mindful of the discre-
tion historically accorded to trial courts in deciding
whether to give a cautionary accomplice instruction.
People v Young, 472 Mich 130.
D
ISTRIBUTING OR
P
ROMOTING
C
HILD
S
EXUALLY
A
BUSIVE
M
ATERIAL
2. A conviction for distributing or promoting child sexually
abusive material requires evidence that the defendant
distributed or promoted child sexually abusive material,
knew the material to be child sexually abusive material
at the time of distribution or promotion, and distributed
or promoted the material with criminal intent; the mere
acquisition and possession of child sexually abusive
material through the use of the Internet does not
constitute distributing or promoting such material
(MCL 750.145c[3]). People v Tombs, 472 Mich 446.
DEEDS—See
E
ASEMENTS
1
I
NDEX
-D
IGEST
1383
DETACHMENT ELECTIONS—See
B
OUNDARIES
1, 2
DISCLOSURE REQUIREMENTS—See
A
CTIONS
3
DUAL STATE PROSECUTIONS—See
C
ONSTITUTIONAL
L
AW
2
EASEMENTS
R
AILROADS
1. A written instrument conveys only an easement where
the grant is not of the land but is merely of its use as a
right-of-way; where the land itself is conveyed, although
for railroad purposes only, without specific designation
of a right-of-way, the conveyance is in fee and not an
easement. Dep’t of Natural Resources v Carmody-Lahti
Real Estate, Inc, 472 Mich 359.
2. An easement limited to a particular purpose terminates
as soon as its purpose ceases to exist, it is abandoned, or
it is rendered impossible of accomplishment; an easement
holder abandons a railroad right-of-way when nonuse is
accompanied by acts on the part of the owner of either
the dominant or servient tenement that manifest an
intention to abandon, and that destroy the object for
which the easement was created or the means of its
enjoyment; both an intent to relinquish the property and
external acts putting that intention into effect must be
shown to prove abandonment; nonuse, by itself , is insuf-
ficient to show abandonment; rather, nonuse must be
accompanied by some act showing a clear intent to
abandon. Dep’t of Natural Resources v Carmody-Lahti
Real Estate, Inc, 472 Mich 359.
EMPLOYMENT DISCRIMINATION—See
C
IVIL
R
IGHTS
1
ENFORCEMENT ACTIONS—See
A
CTIONS
3
EVIDENCE
M
ISSING
E
VIDENCE
1. Missing evidence gives rise to an adverse presumption
1384 472 M
ICHIGAN
R
EPORTS
only when the complaining party can establish inten-
tional conduct indicating fraud and a desire to destroy
evidence and thereby suppress the truth. Ward v Con-
solidated Rail Corp, 472 Mich 77.
2. A jury may draw an adverse inference against a party
that has failed to produce evidence only when the
evidence was under the party’s control and could have
been produced, the party lacks a reasonable excuse for
its failure to produce the evidence, and the evidence is
material, not merely cumulative, and not equally avail-
able to the other party (M Civ JI 6.01). Ward v Consoli-
dated Rail Corp, 472 Mich 77.
P
RESUMPTIONS
3. A presumption is a procedural device that entitles the
person relying on it to a directed verdict if the opposing
party fails to introduce evidence rebutting the presump-
tion; the presumption dissolves if rebuttal evidence is
introduced but the underlying inferences remain to be
considered by the jury. Ward v Consolidated Rail Corp,
472 Mich 77.
HARMLESS ERROR—See
C
ONSTITUTIONAL
L
AW
1
HEALTH CARE BENEFITS—See
S
CHOOLS
1, 2
INSURANCE
N
O
-F
AULT
1. Although a medical provider may charge a reasonable
amount for products, services, and accommodations for
an injured person’s care, recovery, or rehabilitation and
that amount may not exceed the amount the provider
customarily charges for like products, services, and
accommodations in cases not involving no-fault insur-
ance, the fact that the provider’s charge does not exceed
that customary amount does not establish that the
charge is reasonable; the determination regarding the
reasonableness of the amount charged is a question for
the trier of fact (MCL 500.3107[1][a], 500.3157). Advo-
cacy Organization for Patients & Providers v Auto Club
Ins Ass’n, 472 Mich 91.
2. A self-funded long-term disability plan constitutes
“other health and accident coverage” that is subject to
I
NDEX
-D
IGEST
1385
coordination under § 3109a of the no-fault act (MCL
500.3109a). Jarrad v Integon National Ins Co, 472 Mich
207.
3. The central question in determining whether coverage
is “other health and accident coverage” subject to
coordination under the no-fault act is not whether an
insurance company actually provided the coverage, but
rather whether the coverage is typically provided by an
insurance company (MCL 500.3109a). Jarrad v Integon
National Ins Co, 472 Mich 207.
4. An expense, to be compensable under the personal
protection insurance provisions of the no-fault act, must
be for accidental bodily injury arising out of the owner-
ship, operation, maintenance, or use of a motor vehicle
and be reasonably necessary for the injured person’s
care, recovery, or rehabilitation; the expenses must be
causally connected to the accidental bodily injury aris-
ing out of an automobile accident and the injury must
arise out of or be caused by the ownership, operation,
maintenance, or use of a motor vehicle (MCL
500.3105[1]). Griffith v State Farm Mut Automobile Ins
Co, 472 Mich 521.
5. A no-fault insurer is liable under the personal protection
insurance provisions of the no-fault act for “allowable
expenses” for the cost of products, services, and accom-
modations reasonably necessary for an injured person’s
care, recovery, or rehabilitation; products, services, and
accommodations that are reasonably necessary for the
injured person’s recovery or rehabilitation are those
that are reasonably necessary to restore the person to
the condition he was in before sustaining injury or to
bring the person to a condition of health or ability to
resume his preinjury life; products, services and accom-
modations reasonably necessary for the injured person’s
care are those whose provision is necessitated by the
injury sustained in the motor vehicle accident (MCL
500.3105[1], 500.3107[1][a]). Griffith v State Farm Mut
Automobile Ins Co, 472 Mich 521.
INTENT—See
C
RIMINAL
L
AW
2
1386 472 M
ICHIGAN
R
EPORTS
INTEREST
M
ONEY
J
UDGMENTS
1. Prejudgment interest on an award of attorney fees and
costs as mediation sanctions accrues from the date the
complaint is filed (MCR 2.403[O]; MCL 600.6013[8]).
Ayar v Foodland Distributors, 472 Mich 713.
INVESTIGATORY STOP—See
S
EARCHES AND
S
EIZURES
1
JURY
J
URY
I
NSTRUCTIONS
1. Instructional error warrants reversal if it resulted in
such unfair prejudice to the complaining party that the
failure to vacate the jury verdict would be inconsistent
with substantial justice; instructional error is unfairly
prejudicial where it significantly interfered with the
jury’s ability to decide the case intelligently, fairly, and
impartially. Ward v Consolidated Rail Corp, 472 Mich
77.
KNOWLEDGE—See
R
ECEIVING
S
TOLEN
G
OODS
1
LEGS—See
W
ORKER’S
C
OMPENSATION
1
LIMITATION OF ACTIONS—See
C
IVIL
R
IGHTS
3
LONG-TERM DISABILITY PLANS—See
I
NSURANCE
1
LOSS—See
W
ORKER’S
C
OMPENSATION
4
MEDIATION SANCTIONS—See
I
NTEREST
1
MEDICAL PROVIDERS—See
I
NSURANCE
5
MULTIPLE TORTFEASORS—See
C
ONTRIBUTION
2
I
NDEX
-D
IGEST
1387
MUNICIPAL CORPORATIONS
A
TTORNEY
F
EES
1. The decision of a municipality whether to pay an offic-
er’s attorney fees under MCL 691.1408(2) is within the
discretion of the municipality; the statute does not place
limits on the exercise of such discretion nor does it
provide standards by which a court may review the
exercise of that discretion. Warda v Flushing City Coun-
cil, 472 Mich 326.
D
ISCRETIONARY
D
ECISIONS
2. Where a statute empowers a governmental agency to
undertake a discretionary decision, and neither places
limits on the exercise of that discretion nor provides
standards by which a court can review the exercise of
that discretion, the decision is not subject to judicial
review absent an allegation that the exercise of that
discretion was unconstitutional. Warda v Flushing City
Council, 472 Mich 326.
NOTICE TO THE SECOND INJURY FUND—See
W
ORKER’S
C
OMPENSATION
3
PAROLE
E
XPEDITED
P
AROLE
E
LIGIBILITY
1. A prisoner’s cooperation with law enforcement, for
purposes of a motion for judicial determination of coop-
eration under MCL 791.234(10), may occur at any time
before the motion is filed and the prisoner is released on
parole; a pledge of future cooperation does not consti-
tute cooperation. People v Stewart, 472 Mich 624.
2. A prisoner may be considered to have cooperated with
law enforcement for purposes of a motion for judicial
determination of cooperation under MCL 791.234(10)
where the prisoner engaged in conduct where he or she
worked with law enforcement toward a common pur-
pose, provided useful or relevant information to law
enforcement, or establishes that although the prisoner
provided law enforcement any information he or she
had, and it turned out not to be relevant or useful, the
prisoner never had any relevant or useful information to
provide; a prisoner who never provided any information
or who had relevant or useful information but chose not
1388 472 M
ICHIGAN
R
EPORTS
to provide it while it was relevant or useful may not be
considered to have cooperated. People v Stewart, 472
Mich 624.
PERIOD OF LIMITATIONS—See
C
IVIL
R
IGHTS
1
PERSONAL PROTECTION INSURANCE—See
I
NSURANCE
1, 2, 3, 4
PRESUMPTIONS—See
E
VIDENCE
1
PROBATION REVOCATIONS—See
S
ENTENCES
3
REASONABLE CHARGES—See
I
NSURANCE
5
REASONABLE SUSPICION—See
S
EARCHES AND
S
EIZURES
1
REBUTTAL—See
E
VIDENCE
3
RECEIVING STOLEN GOODS
S
TATUTORY
C
ONVERSION
1. A person must know that the property was stolen,
embezzled, or converted in order to be held liable under
the statute that allows recovery of treble damages by
one who is damaged as a result of the person’s buying,
receiving, or aiding in the concealment of stolen, em-
bezzled, or converted property; although constructive
knowledge is not sufficient, the required knowledge can
be established by circumstantial evidence (MCL
600.2919a). Echelon Homes v Carter Lumber Co, 472
Mich 192.
RETALIATION—See
C
IVIL
R
IGHTS
2
SCHOOLS
P
UBLIC
S
CHOOL
E
MPLOYEES’
R
ETIREMENT
S
YSTEM
1. Health care benefits paid to public school retirees do not
I
NDEX
-D
IGEST
1389
constitute “accrued financial benefits” that are subject
to protection from diminishment or impairment under
Const 1963, art 9, § 24 (MCL 38.1391[1]). Studier v
MPSERB, 472 Mich 642.
2. The statute that established health care benefits for
public school retirees did not create for retirees a
contractual right to receive health care benefits that
could not be changed by a later legislature without
impairing a contractual obligation in violation of the
federal and state constitutions (US Const, art I, § 10;
Const 1963, art 1, § 10; MCL 38.1391[1]). Studier v
MPSERB, 472 Mich 642.
SEARCHES AND SEIZURES
F
OURTH
A
MENDMENT
1. The Fourth Amendment is not implicated when an
officer, in the ordinary course of his duties, asks a person
to provide identification; therefore, a police officer is not
required to have a reasonable suspicion of criminal
activity before requesting identification (US Const, Am
IV; Const 1963, art 1, § 11). People v Jenkins, 472 Mich
26.
R
EASONABLENESS
2. The reasonableness of a search or seizure depends on
whether the police officer’s action was justified at its
inception and whether it was reasonably related in scope
to the circumstances that justified the interference in
the first place. People v Williams, 472 Mich 308.
T
RAFFIC
S
TOPS
3. A traffic stop is reasonable as long as the driver is
detained only for the purpose of allowing a police officer
to ask reasonable questions concerning the alleged vio-
lation of the law and its context for a reasonable period;
the determination of reasonableness must take into
account the evolving circumstances faced by the officer;
an officer is justified in extending the detention long
enough to resolve any suspicions raised when a traffic
stop reveals, or unveils, a new set of circumstances.
People v Williams, 472 Mich 308.
SENTENCE DEPARTURES—See
S
ENTENCES
1
1390 472 M
ICHIGAN
R
EPORTS
SENTENCES
P
LEA
A
GREEMENTS
1. A sentence that exceeds the sentencing guidelines sat-
isfies the requirements of MCL 769.34(3) where the
record shows that the sentence was imposed as part of a
valid plea agreement; specific articulation of additional
substantial and compelling reasons for the upward
departure is not required. People v Wiley, 472 Mich 153.
2. A defendant waives appellate review of a sentence that
exceeds the sentencing guidelines where the defendant
has understandingly and voluntarily entered into a plea
agreement to accept that specific sentence. People v
Wiley, 472 Mich 153.
S
ENTENCING
G
UIDELINES
3. The legislative sentencing guidelines apply to sentences
imposed after the revocation of probation for conviction
of certain enumerated felonies committed on or after
January 1, 1999; a defendant’s conduct while on proba-
tion can be considered as a substantial and compelling
reason for departure from the sentencing guidelines
(MCL 777.1 et seq.; MCL 769.34[2]). People v Hendrick,
472 Mich 555.
SEVERAL LIABILITY—See
C
ONTRIBUTION
1
SINGLE CRIMINAL ACT—See
C
ONSTITUTIONAL
L
AW
2
STANDING—See
A
CTIONS
4
SUPERVISORS—See
C
IVIL
R
IGHTS
4
TORTS
M
ULTIPLE
T
ORTFEASORS
1. The 1995 tort reform legislation does not negate the
common liability that exists in situations in which
multiple tortfeasors are liable for the same injury or
wrongful death (1995 PA 161, 1995 PA 249). Gerling
Konzern Allgemeine Versicherungs AG v Lawson, 472
Mich 44.
I
NDEX
-D
IGEST
1391
TOTAL AND PERMANENT DISABILITY—See
W
ORKER’S
C
OMPENSATION
1
WORKER’S COMPENSATION
S
PECIFIC
L
OSS
1. Specific loss benefits under MCL 418.361(2) do not
require amputation and may be awarded where the limb
or body part has lost its usefulness; total and permanent
disability benefits under MCL 418.361(3)(b) are proper
where both legs have lost their usefulness, even though
they have not been amputated. Cain v Waste Manage-
ment, Inc (After Remand), 472 Mich 236.
T
OTAL AND
P
ERMANENT
D
ISABILITY
2. The “corrected” standard does not apply to a determi-
nation of whether a worker qualifies for total and
permanent disability benefits for the loss of both legs,
but does apply to a determination of qualification for
total and permanent disability benefits for the perma-
nent and total loss of the industrial use of both legs
(MCL 418.361[3][b], [g]). Cain v Waste Management, Inc
(After Remand), 472 Mich 236.
V
OCATIONALLY
D
ISABLED
C
ERTIFICATION
3. The liability of an employer or its insurance carrier for
the payment of worker’s compensation benefits to a
worker certified as vocationally disabled is limited to a
period of fifty-two weeks after the date the employee is
injured even though the employer or carrier fails to
notify the Second Injury Fund of the fund’s likely need
to pay benefits beyond the fifty-two-week period; the
employer or carrier is entitled to reimbursement from
the fund for any payments made to an eligible employee
beyond fifty-two weeks after the injury, but is not
entitled to reimbursement for benefits it pays an ineli-
gible employee after fifty-two weeks but before it gives
the fund notice (MCL 418.925[1]). Bailey v Oakwood
Hosp & Medical Center, 472 Mich 685.
W
ORDS AND
P
HRASES
4. The word “loss,” as used in a provision of the worker’s
compensation act relating to total and permanent dis-
ability arising out of the loss of both legs, has the same
meaning it has in another provision of the act relating to
1392 472 M
ICHIGAN
R
EPORTS
the specific loss of a leg (MCL 418.361[2],
418.361[3][b]). Cain v Waste Management, Inc (After
Remand), 472 Mich 236.
I
NDEX
-D
IGEST
1393
