BV_MiApp294

MICHIGAN APPEALS REPORTS

CASES DECIDED

IN THE

MICHIGAN

COURT OF APPEALS

FROM

August 25, 2011, through December 1, 2011

JOHN O. JUROSZEK

REPORTER OF DECISIONS

VOLUME 294

FIRST EDITION

2013

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.

COURT OF APPEALS

ERM

XPIRES

ANUARY

HIEF

UDGE

WILLIAM B. MURPHY................................................................. 2013

HIEF

UDGE

DAVID H. SAWYER....................................................................... 2017

UDGES

MARK J. CAVANAGH ................................................................... 2015

KATHLEEN JANSEN ................................................................... 2013

E. THOMAS FITZGERALD.......................................................... 2015

HENRY WILLIAM SAAD.............................................................. 2015

JOEL P. HOEKSTRA..................................................................... 2017

JANE E. MARKEY......................................................................... 2015

PETER D. O’CONNELL ............................................................... 2013

WILLIAM C. WHITBECK............................................................. 2017

MICHAEL J. TALBOT .................................................................. 2015

KURTIS T. WILDER...................................................................... 2017

PATRICK M. METER.................................................................... 2015

DONALD S. OWENS..................................................................... 2017

KIRSTEN FRANK KELLY............................................................ 2013

CHRISTOPHER M. MURRAY...................................................... 2015

PAT M. DONOFRIO ...................................................................... 2017

KAREN FORT HOOD ................................................................... 2015

STEPHEN L. BORRELLO............................................................ 2013

DEBORAH A. SERVITTO............................................................. 2013

JANE M. BECKERING ................................................................. 2013

ELIZABETH L. GLEICHER......................................................... 2013

CYNTHIA DIANE STEPHENS.................................................... 2017

MICHAEL J. KELLY...................................................................... 2015

DOUGLAS B. SHAPIRO ............................................................... 2013

AMY RONAYNE KRAUSE............................................................ 2013

HIEF

LERK

ESEARCH

IRECTOR:

LARRY S. ROYSTER

SUPREME COURT

ERM

XPIRES

ANUARY

HIEF

USTICE

ROBERT P. YOUNG, J

. .............................................................. 2019

USTICES

MICHAEL F. CAVANAGH............................................................ 2015

MARILYN KELLY......................................................................... 2013

STEPHEN J. MARKMAN............................................................ 2013

DIANE M. HATHAWAY............................................................... 2017

MARY BETH KELLY.................................................................... 2019

BRIAN K. ZAHRA ........................................................................ 2013

OMMISSIONERS

MICHAEL J. SCHMEDLEN, C

HIEF

OMMISSIONER

SHARI M. OBERG, D

EPUTY

HIEF

OMMISSIONER

TIMOTHY J. RAUBINGER MICHAEL S. WELLMAN

LYNN K. RICHARDSON GARY L. ROGERS

NELSON S. LEAVITT RICHARD B. LESLIE

DEBRA A. GUTIERREZ-M

GUIRE FREDERICK M. BAKER, J

ANNE-MARIE HYNOUS VOICE KATHLEEN M. DAWSON

DON W. ATKINS RUTH E. ZIMMERMAN

JÜRGEN O. SKOPPEK SAMUEL R. SMITH

DANIEL C. BRUBAKER ANNE E. ALBERS

TATE

OURT

DMINISTRATOR

CHAD C. SCHMUCKER

LERK:

CORBIN R. DAVIS

EPORTER OF

ECISIONS:

JOHN O. JUROSZEK

RIER:

DAVID G. PALAZZOLO

TABLE OF CASES REPORTED

(Lines set in small type refer to orders appearing in the Special Orders

section beginning at page 801.)

AGE

AFSCME Council 25 v State Employees’

Retirement System .......................................... 1

AFSCME Council 25 Locals 411 & 893,

Macomb County v ............................................ 149

Albion (City of), EldenBrady v ........................... 251

Alfieri v Bertorelli .................................................................. 801

Auto Club Ins Ass’n, Hardrick v ........................ 651

Benton, People v .................................................. 191

Bertorelli, Alfieri v ................................................................. 801

Brown, People v ................................................... 377

Bylsma, People v .................................................. 219

Caspari, Yoost v ..................................................................... 801

City of Albion, EldenBrady v .............................. 251

Cohen, People v .................................................... 70

Cortez, People v ................................................... 481

Danto, People v .................................................... 596

AGE

Dep’t of Transportation, Snead v ....................... 343

Duncan Twp, Hopkins v ..................................... 401

Elba Twp v Gratiot County Drain Comm’r ...... 310

EldenBrady v City of Albion ............................... 251

Ellis, In re ............................................................. 30

Ellis, In re .............................................................................. 801

Gratiot County Drain Comm’r, Elba Twp v ...... 310

Hall v Stark Reagan, PC ..................................... 88

Hardrick v Auto Club Ins Ass’n ......................... 651

Hartuniewicz, People v ........................................ 237

High Pointe Oil Co, Inc, Price v ......................... 42

Hopkins v Duncan Twp ...................................... 401

Hudson, In re ....................................................... 261

In re Ellis .............................................................. 30

In re Ellis ............................................................................... 801

In re Hudson ........................................................ 261

In re Michigan Consolidated Gas Co’s

Compliance With 2008 PA 286 & 295 ............ 119

In re Parole of Elias ............................................. 507

In re Parole of Haeger ......................................... 549

In re Plump .......................................................... 270

Independent Bank, Young v ................................ 141

Jaskowski v Petipren ........................................... 419

John Carlo, Inc, Snead v ..................................... 343

ii 294 M

ICH

AGE

Macatawa Bank v Wipperfurth .......................... 617

Macomb County v AFSCME Council 25 Locals

411 & 893 ......................................................... 149

Mahone, People v ................................................. 208

McNeill v Public School Employees’

Retirement Bd ...................................................... 1

Meissner, People v ............................................... 438

Michigan Consolidated Gas Co’s Compliance

With 2008 PA 286 & 295, In re ...................... 119

Michigan Reproductive & IVF Center, PC,

Moon v .............................................................. 582

Michigan State Employees Ass’n v State

Employees’ Retirement System ...................... 1

Moon v Michigan Reproductive & IVF Center,

PC ..................................................................... 582

Nater, People v ..................................................... 596

Nunley, People v .................................................. 274

Parole of Elias, In re ............................................ 507

Parole of Haeger, In re ........................................ 549

People v Benton ................................................... 191

People v Brown .................................................... 377

People v Bylsma ................................................... 219

People v Cohen ..................................................... 70

People v Cortez .................................................... 481

People v Danto ..................................................... 596

People v Hartuniewicz ......................................... 237

People v Mahone .................................................. 208

People v Meissner ................................................ 438

ABLE OF

ASES

EPORTED

iii

AGE

People v Nater ..................................................... 596

People v Nunley ................................................... 274

People v Reed ....................................................... 78

People v White ..................................................... 622

People v Williams ................................................. 461

Petipren v Jaskowski ........................................... 419

Plump, In re ......................................................... 270

Price v High Pointe Oil Co, Inc .......................... 42

Public School Employees’ Retirement Bd,

McNeill v .......................................................... 1

Pugh v Zefi ........................................................... 393

Reed, People v ...................................................... 78

Richard v Schneiderman & Sherman, PC ......... 37

Schneiderman & Sherman, PC, Richard v ........ 37

Service Employees International Union, Local

517M v State Employees’ Retirement

System .................................................................... 1

Snead v Dep’t of Transportation ........................ 343

Snead v John Carlo, Inc ...................................... 343

Snyder, State Treasurer v ................................... 641

Stark Reagan, PC, Hall v .................................... 88

State Employees’ Retirement System,

AFSCME Council 25 v .................................... 1

State Employees’ Retirement System,

Michigan State Employees Ass’n v ................ 1

State Employees’ Retirement System,

Service Employees International Union,

Local 517M v .................................................... 1

State Treasurer v Snyder .................................... 641

iv 294 M

ICH

AGE

Transportation (Dep’t of), Snead v .................... 343

White, People v .................................................... 622

Williams, People v ................................................ 461

Wipperfurth, Macatawa Bank v ......................... 617

Yoost v Caspari ...................................................................... 801

Young v Independent Bank ................................. 141

Zefi, Pugh v .......................................................... 393

ABLE OF

ASES

EPORTED

OURT OF

PPEALS

ASES

AFSCME COUNCIL 25 v STATE EMPLOYEES’ RETIREMENT SYSTEM

MICHIGAN STATE EMPLOYEES ASSOCIATION v STATE

EMPLOYEES’ RETIREMENT SYSTEM

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 517M v

STATE EMPLOYEES’ RETIREMENT SYSTEM

McNEILL v PUBLIC SCHOOL EMPLOYEES’ RETIREMENT BOARD

Docket Nos. 302959, 302960, 302961, and 302962. Submitted July 12,

2011, at Lansing. Decided August 25, 2011, at 9:00 a.m. Leave to

appeal denied, 490 Mich 935.

AFSCME Council 25, the Michigan State Employees Association,

Service Employees International Union, Local 517M and Local

526M, International Union, United Automobile, Aerospace, and

Agricultural Implement Workers of America and its Local 6000,

and various members of the plaintiff unions brought four separate

actions in the Court of Claims against the State Employees’

Retirement System and its board, the Public Employee Retire-

ment Health Care Funding Trust, the Department of Technology

Management and Budget and its director, the director of the Office

of Retirement Services, the state of Michigan, the Public School

Employees’ Retirement Board, and the Treasurer of the state of

Michigan, alleging that 2010 PA 185, MCL 38.35, the statute

requiring a three percent employee compensation contribution to

finance the Public Employee Retirement Health Care Funding

Act, 2010 PA 77, MCL 38.2731 to 38.2747, is unconstitutional and

seeking a declaratory judgment to that effect. The actions were

consolidated in the Court of Claims. The Court of Claims, William

E. Collette, J., granted plaintiffs’ motion for summary disposition

on the basis that MCL 38.35 violated Const 1963, art 11, § 5 and

denied defendants’ motion for summary disposition. Defendants

brought four separate appeals. The Court of Appeals consolidated

the appeals.

The Court of Appeals held:

1. The Court of Claims had jurisdiction to hear the dispute

because plaintiffs alleged a current confiscation of their compen-

sation without adherence to the provisions of Const 1963, art 11,

§ 5 and in violation of the relevant collective-bargaining agree-

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ment and plaintiffs’ contractual rights. Plaintiffs did not base

their action on a hypothetical situation.

2. The Civil Service Commission has absolute power in its field.

The commission’s power and authority is derived from the constitu-

tion, therefore, its valid exercise of that power cannot be taken away

by the Legislature. The commission regulates the terms and condi-

tions of employment of classified civil service employees and has

plenary and absolute authority in that respect. Although the com-

mission had plenary authority over the rates of compensation, a

system of checks and balances with the Legislature is established in

Const 1963, art 11, § 5 whereby an increase in the rate of compensa-

tion authorized by the commission may be rejected or reduced by the

Legislature by a

/3 vote of the members elected to and serving in each

house provided the vote occurs within 60 calendar days of the

transmitted increase. By enacting 2010 PA 185 and adding the

current version of MCL 38.35, the Legislature acted to reduce the

compensation of classified civil servants without an accompanying

agreement with the unions or the Civil Service Commission. Pursu-

ant to Const 1963, art 3, § 2, and art 11, § 5, the Legislature did not

have the authority to eliminate the wage increase agreed to in the

collective bargaining agreement by enacting MCL 38.35. The Legis-

lature failed to successfully invoke the process for overriding the

commission set forth in the constitution.

3. The fact that prior versions of MCL 38.35 were not the

subject of a constitutional challenge does not render them consti-

tutional.

4. MCL 38.35 contravenes the provisions of the constitution

and is unconstitutional and void.

Affirmed.

ONSTITUTIONAL

AW —

IVIL

ERVICE

OMMISSION —

UBLIC

MPLOYEES —

EALTH

-C

ARE

UNDING

The statute enacted by 2010 PA 185 to require a three percent

employee compensation contribution to finance the Public Em-

ployee Retirement Health Care Funding Act, MCL 38.2731 et seq.,

violates the grant of authority to the Civil Service Commission to

regulate the rates of compensation of classified civil service em-

ployees in Const 1963, art 11, § 5 (MCL 38.35).

Miller Cohen, P.L.C. (by Bruce A. Miller and Keith D.

Flynn), for AFSCME Council 25, Sylvester Austin,

Mark Smith, David Baker, Myrtel Brown, and Lenore

Davis.

2 294 M

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Fraser Trebilcock Davis & Dunlap, P.C. (by Brandon

W. Zuk), for the Michigan State Employees Association,

Kenneth Moore, Tim Schutt, Donna Spencer, and Rus-

sell Waters.

Sachs Waldman (by Mary Ellen Gurewitz and Mar-

shall Widick) for Service Employees International

Union, Locals 517M and 526M.

William A. Wertheimer for Anthony McNeill, Rachael

Siemen, Rick Hankinson, and Ray Holman.

William A. Wertheimer, Michael B. Nicholson, and

Ava R. Barbour for International Union, United Auto-

mobile, Aerospace, and Agricultural Implement Work-

ers of America and its Local 6000.

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Richard A. Bandstra, Chief Legal

Council, and Frank J. Monticello, Thomas Quasarano,

and Larry F. Brya, Assistant Attorneys General, for the

State Employees’ Retirement System and others.

Amicus Curiae:

Miller, Canfield, Paddock and Stone, P.L.C. (by

Michael J. Hodge and Scott R. Eldridge), for the Civil

Service Commission.

Before: B

ECKERING

,P.J., and F

ORT

OOD

and

TEPHENS

,JJ.

ORT

OOD

, J. Defendants, the entities and individu-

als charged with the administration, collection, and distri-

bution of the State Employees’ Retirement System,

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appeal as of right the Court of Claims’ decision holding

that MCL 38.35, the statute requiring a three percent

employee compensation contribution to finance the

Public Employee Retirement Health Care Funding Act,

2010 PA 77, MCL 38.2731 to 38.2747, is unconstitu-

tional. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

Plaintiffs

addressed wage provisions during

collective-bargaining negotiations with the state. Ulti-

mately, the parties agreed to a collective-bargaining

agreement (CBA) that provided that hourly wages

would be frozen for the fiscal year 2008-2009, increased

by one percent for fiscal year 2009-2010, and increased

by three percent for fiscal year 2010-2011. The CBA was

approved by the Civil Service Commission (CSC or the

commission) and transmitted to then Governor Jenni-

fer Granholm for incorporation into the state budget.

An attempt to reject the three percent wage increase

included in the 2010-2011 budget failed in the Legisla-

ture. On February 23, 2010, House Concurrent Resolu-

tion (HCR) 42 was introduced that proposed rejection of

an increase in rates of compensation as recommended

by the CSC. There is no indication that the resolution

was voted on by house members of the Legislature. On

March 3, 2010, an attempt to reject the three percent

wage increase was made in the Senate when Senate

Concurrent Resolution (SCR) 35 was introduced. This

SCR contained an acknowledgment of the constitu-

tional authority of the CSC and the requirement that a

vote of two-thirds of the members serving in each house

was required to reject the commission’s approval of the

Plaintiffs are unions that are parties to a collective-bargaining

agreement with the state and individual members of the unions.

4 294 M

ICH

1 [Aug

wage increase. Despite the introduction of SCR 35 and

numerous attempts to pass the resolution throughout

March 2010, it did not garner a sufficient number of

votes for passage. On March 24, 2010, HCR 48 was

introduced. This HCR also contained an acknowledg-

ment of the constitutional authority of the CSC and the

requirement that a two-thirds vote of the members

serving in each house was required to reject the in-

crease. There is no indication that action was taken on

this resolution.

Unable to obtain the two-thirds vote in each house to

override the three percent compensation increase nego-

tiated in the CBA and approved by the CSC, the

Legislature enacted 2010 PA 185, MCL 38.35, and 2010

PA 77, MCL 38.2731 et seq. MCL 38.35 required a

mandatory three percent contribution from the com-

pensation of active employee members from November

1, 2010, through September 30, 2013, into the Public

Employee Retirement Health Care Funding Act, MCL

38.2731 et seq. Plaintiffs filed suit in the Court of

Claims to challenge the reduction from compensation

by the enactment of MCL 38.35.

Plaintiffs alleged that

the reduction in compensation was in violation of both

the Michigan Constitution and the United States Con-

stitution and of contractual rights. Defendants coun-

tered that the regulation of the retirement system was

within the province of the Legislature and that the

Court of Claims lacked jurisdiction because the avail-

ability of the benefits at a later date presented a

hypothetical question. The Court of Claims held that

MCL 38.35 violated art 11, § 5 of the Michigan Consti-

There were four separate actions filed in the Court of Claims, and the

actions were consolidated in the lower court, although the order stated

that each case would keep its separate identity and the parties in one

action would not become parties in the other actions. The Court of

Appeals consolidated the appeals.

2011] AFSCME C

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tution, rejected the jurisdictional challenge, and did not

address the remaining claims. Defendants appeal as of

right.

II. JURISDICTION

A challenge to the jurisdiction of the Court of Claims

presents a statutory question that is reviewed de novo

as a question of law. Parkwood Ltd Dividend Housing

Ass’n v State Housing Dev Auth, 468 Mich 763, 767; 664

NW2d 185 (2003). The Court of Claims has exclusive

jurisdiction to hear and determine “all claims and

demands, liquidated and unliquidated, ex contractu and

ex delicto, against the state and any of its departments,

commissions, boards, institutions, arms, or agencies.”

MCL 600.6419(1)(a); Parkwood, 468 Mich at 767. The

Court of Claims also has concurrent jurisdiction over

“any demand for equitable relief and any demand for a

declaratory judgment when ancillary to a claim filed”

pursuant to MCL 600.6419. MCL 600.6419a. The deter-

mination whether the Court of Claims possesses juris-

diction is governed by the actual nature of the claim,

not how the parties phrase the request for relief or the

characterization of the nature of the relief. Parkwood,

468 Mich at 770. “[T]he Court of Claims has exclusive

jurisdiction over complaints based on contract or tort

that seek solely declaratory relief against the state or

any state agency.” Parkwood, 468 Mich at 775.

In the present case, defendants contend that the

Court of Claims lacked jurisdiction to issue a declara-

tory judgment because the issue regarding the availabil-

ity of benefits for current employees upon their retire-

ment presents a hypothetical injury premised on a

future contingent event. The power of state courts to

pass upon the constitutionality of state statutes arises

only when interested litigants require the use of judicial

6 294 M

ICH

1 [Aug

authority for protection against actual interference, not

hypothetical threats. Golden v Zwickler, 394 US 103,

110; 89 S Ct 956; 22 L Ed 2d 113 (1969). Here, although

defendants’ statement of the issue alleges a jurisdic-

tional challenge, in fact, defendants effectively assert

that there is no justiciable controversy because the

availability of health benefits upon retirement for cur-

rent employees is contingent on a future event. We

disagree.

A condition precedent to invoke declaratory relief is

the requirement that an actual controversy exist. De-

troit v Michigan, 262 Mich App 542, 550; 686 NW2d 514

(2004). An actual controversy is present when a declara-

tory judgment is necessary to direct a plaintiff’s future

conduct in order to preserve his or her legal rights.

Shavers v Attorney General, 402 Mich 554, 588; 267

NW2d 72 (1978). Although the actual-controversy re-

quirement prevents a court from ruling on hypothetical

questions, a court is not precluded from addressing

issues before actual injuries or losses have developed.

Id. at 589. Furthermore, “declaratory relief is designed

to resolve questions...before the parties change their

positions or expend money futilely.” Detroit, 262 Mich

App at 551.

Although defendants characterize plaintiffs’ claims

as seeking relief from a hypothetical event, plaintiffs

allege a current confiscation of their compensation

without adherence to the provisions of Const 1963,

art 11, § 5 and in violation of their CBA and contractual

rights. Specifically, irrespective of the future availability

of retiree health benefits to current employees, plain-

tiffs challenge the reduction in wages from November 1,

2010, through September 30, 2013. In light of the

present reduction in compensation, defendants’ juris-

dictional challenge claiming that plaintiffs are raising a

2011] AFSCME C

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hypothetical scenario regarding events that may occur

upon their retirement fails.

III. STANDARD OF REVIEW

The trial court’s decision regarding a motion for sum-

mary disposition is reviewed de novo with the evidence

examined in the light most favorable to the nonmoving

party. In re Egbert R Smith Trust, 480 Mich 19, 23-24; 745

NW2d 754 (2008). Issues involving statutory interpreta-

tion present questions of law that are reviewed de novo.

Klooster v Charlevoix, 488 Mich 289, 295-296; 795 NW2d

578 (2011). “The primary goal of statutory interpretation

is to give effect to the intent of the Legislature.” Briggs

Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 76; 780

NW2d 753 (2010). To determine the legislative intent, the

court must first examine the statute’s plain language.

Klooster, 488 Mich at 296. If the language of the statute is

clear and unambiguous, it is presumed that the Legisla-

ture intended the meaning plainly expressed in the stat-

ute. Briggs, 485 Mich at 76.

Cases involving questions of constitutional interpreta-

tion are reviewed de novo. Midland Cogeneration Venture

Ltd Partnership v Naftaly, 489 Mich 83, 89; 803 NW2d

674 (2011). When interpreting a constitutional provision,

the primary goal is to determine the initial meaning of the

provision to the ratifiers, the people, at the time of

ratification. Nat’l Pride at Work, Inc v Governor, 481

Mich 56, 67; 748 NW2d 524 (2008). “[T]he primary

objective of constitutional interpretation, not dissimilar to

any other exercise in judicial interpretation, is to faithfully

give meaning to the intent of those who enacted the law.”

Id. To effectuate this intent, the appellate courts apply the

plain meaning of the terms used in the constitution. Toll

Northville Ltd v Northville Twp, 480 Mich 6, 11; 743

NW2d 902 (2008). When technical terms are employed,

8 294 M

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1 [Aug

the meaning understood by those sophisticated in the law

at the time of enactment will be given unless it is clear

that some other meaning was intended. Id. To clarify the

meaning of the constitutional provision, the court may

examine the circumstances surrounding the adoption of

the provision and the purpose sought to be achieved.

Traverse City Sch Dist v Attorney General, 384 Mich 390,

405; 185 NW2d 9 (1971). An interpretation resulting in a

holding that the provision is constitutionally valid is

preferred to one that finds the provision constitutionally

invalid, and a construction that renders a clause inopera-

tive should be rejected. Id. at 406. Constitutional conven-

tion debates are relevant, albeit not controlling. Lapeer Co

Clerk v Lapeer Circuit Court, 469 Mich 146, 156; 665

NW2d 452 (2003). Every provision in our constitution

must be interpreted in light of the document as a whole,

and “no provision should be construed to nullify or impair

another.” Id. “Statutes are presumed constitutional un-

less the unconstitutionality is clearly apparent.” Toll

Northville Ltd, 480 Mich at 11. The court’s power to

declare a law unconstitutional is exercised with extreme

caution and is not exercised where serious doubt exists

regarding the conflict. Dep’t of Transp v Tomkins, 481

Mich 184, 191; 749 NW2d 716 (2008).

IV. THE CREATION OF THE CIVIL SERVICE COMMISSION

In October 1935, the Civil Service Study Commis-

sion, appointed by Governor Frank D. Fitzgerald, initi-

ated a year-long study of state personnel practices to

determine “ ‘the most important evils from which the

state [was] suffering.’ ” Council No 11, AFSCME v Civil

Serv Comm, 408 Mich 385, 397; 292 NW2d 442 (1980)

(citation omitted). The result was a condemnation of

the longstanding “spoils system” or “patronage system”

where government jobs were filled with loyal party

2011] AFSCME C

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workers who were counted on, not to perform the work

of the state, but rather to perform party or candidate

work during election season. Id. at 397 n 10. As a result

of the spoils system, state office buildings were nearly

empty during political conventions. Id. Consequently,

the regular work of the state was interrupted, and

services and funds were at the disposal of political

parties. Id. To remedy the spoils system, it was recom-

mended that legislation establish a state civil service

system. Id. at 397.

In response to the commission’s findings and recom-

mendations and heightened public interest, the Legisla-

ture created 1937 PA 346, which was designed to elimi-

nate the spoils system and prohibit participation in

political activities during the hours of employment. Coun-

cil No 11, 408 Mich at 398. In its next regular session, the

Legislature adopted a group of bills designed to destroy

the recently established Civil Service Commission. It

created legislation that sharply curtailed the state classi-

fied civil service, diminished the authority of the director

of the commission by repealing a provision vesting execu-

tive and administrative functions in the director, made the

director an appointee of the commission to serve at its

pleasure, reduced the CSC’s appropriation to require

serious staff reductions and limited services, and provided

increased employment preferences for veterans and

former state employees. Id. at 399. The Legislature suc-

ceeded in “badly crippling” the newly created Civil Service

Commission. Id. Specifically, in a two-year period, the

number of “exempt” civil service positions climbed. The

percentage of state employees serving in classified posi-

tions fell from 90.7 percent in January 1939 to 51.1

percent in March 1940. Id. at 400. Additionally, only the

lowest-paying jobs were retained as classified positions.

Id. In 1940, apparently unsatisfied with the political

maneuvering and the dismantling of the Civil Service

10 294 M

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1 [Aug

Commission, the people of Michigan “adopted a constitu-

tional amendment establishing a constitutional state civil

service system, superseding the 1939 legislation.” Id.at

401.

Before changes to the 1963 Constitution, the Civil

Service Commission had “absolute authority to set

compensation at any time during the course of a fiscal

year without legislative oversight.” Mich Ass’n of Gov-

ernmental Employees v Civil Serv Comm, 125 Mich App

180, 187; 336 NW2d 463 (1983). However, at the 1961

Constitutional Convention, delegates proposed a

change to allow legislative oversight, commenting as

follows:

“[T]his amendment would...only affect[] increases in

rates of compensation for classified personnel. Presently,

the civil service commission has the absolute power to fix

rates of compensation in any amount and at any time it

desires, free from legislative control or accountability.

“This amendment would require several things. First of

all, it would require that any proposed increases made by

the civil service commission be submitted with the gover-

nor’s budget. Now, this has been the practice for the past 2

or 3 years. However, we are dealing primarily here in what

I would consider statutory language. There is nothing in

the present constitution to require the commission to

continue the practice that they followed in the past few

years, or to prevent them from reverting to the practice of

declaring a pay raise at any time. This would make it

crystal clear that any proposed increases in rates of com-

pensation must be submitted with the governor’s budget.

“Then these rates or increased rates would take effect

only at the beginning of the next fiscal year. In other words,

if a proposed increase were submitted with the governor’s

budget in January, it would not take effect until July 1 of

that year. Also, the rates would take effect, upon the failure

of the legislature, within 60 days after submission of this

2011] AFSCME C

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recommendation, to either reject, modify or reduce the

amount recommended by the commission.

“The amendment gives the legislature this power to

reject, modify or reduce increases in rates of compensation

where there is a 2/3 vote of the members elected, if you will,

in each house. In other words, in order to defeat a recom-

mendation of the civil service commission as to pay raises,

2/3 of the senate would have to reject it, 2/3 of the house

would have to reject, modify or reduce it.

“Additionally, the amendment would prohibit the legis-

lature from reducing rates of compensation in effect at the

time of the submission of the commission’s recommenda-

tions to the legislature. In other words, the legislature

would not be given the authority, even with a 2/3 vote, of

going below those rates of compensation which are in effect

at the time of a proposed increase.

“Now, it is sincerely believed that this proposed amend-

ment is not a drastic one; it is not a radical one, but it is

offered for the following reasons:

“It is believed that no governmental unit should be free

from the time tested and proven checks and balances inher-

ent in our constitutional form of government. Since the civil

service commissioners are appointed for 8 year terms, they

truly are not accountable to the governor, particularly a

governor of short duration. Although the legislature pres-

ently has the power to fix the total appropriation within a

given agency, it has no method of controlling abuses in a

salary classification which could occur in the future. In

recognition of the fact that commissioners are but mere

human beings and, as such, subject to error, it is felt that they

should be accountable to the people for their actions, and

this...isaccomplished through giving the legislature a veto

power. Now, for those who favor retention of this power by the

civil service commission—in other words, the right to fix

compensation—it should be pointed out that civil service

retains the initiating power to raise rates under the proposed

language. Also, as a practical proposition, the requirement of

a 2/3 vote of both houses to reject, modify or reduce the

commission’s recommendation means that the veto power

12 294 M

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could not be exercised readily, and would undoubtedly be

exercised only in the event of a real abuse by the commis-

sion.” 1 Record of the Constitutional Convention of 1961, p

652. [Mich Ass’n of Governmental Employees, 125 Mich App

at 187-189.]

Consequently, although the prior version of the consti-

tutional article creating the Civil Service Commission

contained no provision regarding legislative oversight,

Const 1908, art 6, § 22 (adopted in 1940), the amend-

ment expressly allowed legislative action over CSC

determinations by a two-thirds vote of the members

serving in each house. Const 1963, art 11, § 5.

Currently, the Civil Service Commission is autho-

rized by Const 1963, art 11, § 5, which provides, in

relevant part:

The classified state civil service shall consist of all

positions in the state service except those filled by popular

election, heads of principal departments, members of

boards and commissions, the principal executive officer of

boards and commissions heading principal departments,

employees of courts of record, employees of the [L]egisla-

ture, employees of the state institutions of higher educa-

tion, all persons in the armed forces of the state, eight

exempt positions in the office of the governor, and within

each principal department, when requested by the depart-

ment head, two other exempt positions, one of which shall

be policy-making. The civil service commission may exempt

three additional positions of a policy-making nature within

each principal department.

The civil service commission shall be non-salaried and

shall consist of four persons, not more than two of whom

shall be members of the same political party, appointed by

the governor for terms of eight years, no two of which shall

expire in the same year.

The administration of the commission’s powers shall be

vested in a state personnel director who shall be a member of

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the classified service and who shall be responsible to and

selected by the commission after open competitive examina-

tion.

The commission shall classify all positions in the classi-

fied service according to their respective duties and respon-

sibilities, fix rates of compensation for all classes of posi-

tions, approve or disapprove disbursements for all personal

services, determine by competitive examination and per-

formance exclusively on the basis of merit, efficiency and

fitness the qualifications of all candidates for positions in

the classified service, make rules and regulations covering

all personnel transactions, and regulate all conditions of

employment in the classified service.

***

No person shall be appointed to or promoted in the

classified service who has not been certified by the com-

mission as qualified for such appointment or promotion.

No appointments, promotions, demotions or removals in

the classified service shall be made for religious, racial or

partisan considerations.

Increases in rates of compensation authorized by the

commission may be effective only at the start of a fiscal

year and shall require prior notice to the governor, who

shall transmit such increases to the [L]egislature as part of

his budget. The [L]egislature may, by a majority vote of the

members elected to and serving in each house, waive the

notice and permit increases in rates of compensation to be

effective at a time other than the start of a fiscal year.

Within 60 calendar days following such transmission, the

[L]egislature may, by a two-thirds vote of the members

elected to and serving in each house, reject or reduce

increases in rates of compensation authorized by the com-

mission. Any reduction ordered by the [L]egislature shall

apply uniformly to all classes of employees affected by the

increases and shall not adjust pay differentials already

established by the civil service commission. The [L]egisla-

ture may not reduce rates of compensation below those in

14 294 M

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effect at the time of the transmission of increases autho-

rized by the commission.

***

The civil service commission shall recommend to the

governor and to the [L]egislature rates of compensation for

all appointed positions within the executive department

not a part of the classified service.

The Civil Service Commission is an administrative

agency established by the Michigan Constitution. Const

1963, art 11, § 5; Viculin v Dep’t of Civil Serv, 386 Mich

375, 385; 192 NW2d 449 (1971); Womack-Scott v Dep’t of

Corrections, 246 Mich App 70, 79; 630 NW2d 650 (2001).

Pursuant to the constitutional amendment, the Civil

Service Commission is vested with plenary powers in its

“sphere of authority.” Plec v Liquor Control Comm, 322

Mich 691, 694; 34 NW2d 524 (1948). That is, the Civil

Service Commission has absolute power in its field. Han-

lon v Civil Serv Comm, 253 Mich App 710, 718; 660 NW2d

74 (2002). “Because the CSC’s power and authority is

derived from the constitution, its valid exercise of that

power cannot be taken away by the Legislature.” Id.at

717. “The CSC regulates the terms and conditions of

employment in the classified service and has plenary and

absolute authority in that respect.” Womack-Scott, 246

Mich App at 79. The Legislature and the appellate courts

have no right to amend or change a provision contained in

the state constitution. Pillon v Attorney General, 345

Mich 536, 547; 77 NW2d 257 (1956). Consequently, when

a statute contravenes the provisions of the state constitu-

tion it is unconstitutional and void. Id.

V. THE CIVIL SERVICE COMMISSION’S EXERCISE OF ITS AUTHORITY

The extent of the Civil Service Commission’s author-

ity has been addressed by the courts of this state. In

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Council No 11, 408 Mich at 392, one of the individual

plaintiffs, an employee in the state classified civil ser-

vice, filed nominating petitions to become a candidate

for political office. As a result of the filing, he was

discharged for violating the commission rule ordering a

flat ban on off-duty as well as on-duty political activity

by all state classified civil service employees. Id.at

392-393. However, the Legislature “is empowered to

enact laws to promote and regulate political campaigns

and candidacies.” Id. at 395. Consequently, the Legisla-

ture took the unusual step of enacting 1976 PA 169,

which gave employees in the state’s classified civil

service the “right to engage in partisan political activity,

serve as convention delegates and run for elective office

while on mandatory leave of absence.” Id. at 395. The

Civil Service Commission asserted that the statute

permitting certain types of political activity was uncon-

stitutional because it conflicted with the commission’s

rulemaking authority and the commission’s exclusive

jurisdiction over civil service employees as derived from

Const 1963, art 11, § 5. Id. at 395-396.

The Supreme Court rejected the commission’s chal-

lenge to the constitutionality of 1976 PA 169, and

allowed off-duty political activity by civil service em-

ployees. The Court held that the plain language of the

provision creating the Civil Service Commission con-

tained no such language forbidding off-duty political

activity that did not interfere with job performance. Id.

at 405-407. The Court held that the Civil Service

Commission’s sphere of authority did not extend to

off-duty behavior unrelated to job performance. Id.at

408-409. Therefore, a valid exercise of legislative au-

thority applicable to state classified civil service employ-

ees was permissible provided that it did not interfere

with the constitutional authority of the Civil Service

Commission. Id. at 409. Consequently, legislation must

16 294 M

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be examined within the context of the authority del-

egated to the CSC in the Michigan Constitution.

The Michigan Constitution empowers the Civil Ser-

vice Commission to exercise authority over the compen-

sation of classified civil service employees. In Crider v

Michigan, 110 Mich App 702, 707; 313 NW2d 367

(1981), the state initiated a voluntary-layoff program to

address severe financial circumstances. When the

voluntary-layoff program failed to sufficiently reduce

payroll costs, a task force formed by the Governor

recommended six one-day layoffs for certain state em-

ployees that would not result in the reduction of their

hourly pay rate or fringe benefits. Id. To facilitate this

proposal, one of the defendants, the Civil Service Com-

mission, temporarily modified its rules regarding notice

to allow for emergency situations that required imme-

diate action. Id. at 707-709. The plaintiffs challenged

the layoffs, asserting that the layoffs violated Const

1963, art 11, § 5, because the layoffs impermissibly

reduced the salary of state officers. Crider, 110 Mich

App at 722. This Court disagreed, holding:

Defendants concede that the Governor did not receive

the approval of the appropriating committees of the House

and the Senate for the salary reductions apparent in the

layoff program. They further admit that the Governor does

not have the authority to either personally order the layoff

of state classified employees or to reduce appropriations for

their salaries. Defendants contend, however, that the CSC

does have authority to order or request departments to lay

off classified state employees under Const 1963, art 11, § 5.

This latter constitutional provision confers upon the

CSC plenary power to “fix rates of compensation for all

classes of positions***andregulate all conditions of

employment in the classified service”. The CSC’s constitu-

tional authority to regulate the conditions of employment

in classified civil service is independent from and not

limited by the provisions of Const 1963, art 5, § 20. Accord-

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ingly, if the CSC’s implementation of the layoff plan was

permissible under art 11, § 5, it is not necessary for us to

consider the effect of the failure of the Governor to comply

with the conditions of art 5, § 20 of the Michigan Consti-

tution. This follows by virtue of the fact that it is the Civil

Service Commission, and not the Legislature, that is given

“supreme power” over civil service employees under art 11,

§5. Welfare Employees Union v Civil Service Comm,28

Mich App 343; 184 NW2d 247 (1970).

Our review of the record convinces us that the one-day

layoff program instituted by the CSC was within the

authority delegated to that agency under art 11, § 5. The

effect of the layoff program is to reduce the actual number

of hours worked in certain pay periods by classified state

employees. The number of hours in a pay period is a

condition of employment that is subject to the constitu-

tional supremacy of the CSC. Welfare Employees Union v

Civil Service Comm, supra. Nothing in the Michigan Con-

stitution or in the rules and regulations of the CSC

requires classified state employees to work any particular

number of hours in a pay period or requires that they

receive compensation for a specified number of hours

during any fiscal year.

***

Because Const 1963, art 11, § 5 vests in the CSC exclu-

sive authority to establish the conditions of employment

for public employees and because neither plaintiffs nor the

amicus curiae have cited any other constitutional provi-

sions that the CSC may have violated in reducing the

number of hours worked by plaintiffs, there is no merit to

the contention that the one-day layoff program violates the

constitution of this state. [Crider, 110 Mich App at 723-

725.]

Additionally, in Mich Ass’n of Governmental Employ-

ees, 125 Mich App at 183-185, the commission ratified

two collective-bargaining agreements that included a

five-percent wage increase and vision-care benefits for

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certain employees. The agreements for the wage in-

crease and the vision-care benefits were transmitted to

the Legislature. The Legislature passed a resolution

rejecting the wage increase, but the resolution was

contingent on the employees’ unions’ agreeing to

modify the collective-bargaining agreements to elimi-

nate the provisions for the wage increase. When the

Office of the State Employer was unable to negotiate

the concessions with the unions, the resolution became

null and void. Consequently, the State Employer, at the

behest of the Governor, asked the CSC to rescind the

five-percent wage increase. The commission acted to

rescind the wage increase and vision benefits applicable

to two-thirds of the state classified civil service employ-

ees. Id. at 185.

The plaintiffs challenged the CSC’s authority to

rescind the authorized wage increase after it had been

considered by the Legislature. Id. at 186. On appeal, the

commission’s rejection of the wage increase and vision

benefits was upheld. “It is this Court’s opinion that the

commission had the authority to rescind and defer the

proposed increase even after it was considered by the

Legislature.” Id. at 187. Const 1963, art 11, § 5, ¶ 7

allows the Legislature to have narrowly drawn veto

power over increases in state wages. Mich Ass’n of

Governmental Employees, 125 Mich App at 189. This

provision of the Michigan Constitution does not fore-

close “later action by the commission to rescind an

authorized increase which has not been vetoed by the

Legislature.” Id. The Legislature’s inability to veto an

increase by a two-thirds vote of the members serving in

each house does not mandate that salaries be main-

tained at that level in light of the authority over

compensation that is granted to the Commission. Id.

Consequently, the CSC exercised its sphere of authority

to reduce compensation to classified civil service em-

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ployees when the Legislature failed to act or was unable

to garner sufficient support of its members to act within

the parameters for adjustments to compensation in

accordance with the Michigan Constitution.

VI. MCL 38.35

In 1943, the Legislature established a savings fund

for employees that required deductions for contribution

to the fund. The statute, MCL 38.35, provided, in

relevant part:

Beginning July 1, 1943, each state employe who is a

member of the retirement system shall contribute 5 per

centum of that part of his compensation earnable, not in

excess of $3,600.00 per annum, to the employes’ savings

fund; compensation earnable, as herein used, shall mean

salary or wages received during a payroll period for per-

sonal services plus such allowance for maintenance as may

be recognized by the maintenance compensation schedules

of the civil service commission. [1943 PA 240.]

The statutory provision following MCL 38.35 in 1943

PA 240, MCL 38.36, expressly stated that the deduction

was agreed to between the Legislature and the mem-

bers. MCL 38.36 provided:

Members agree to deductions. The deductions from the

compensation of members, provided for in section 37 [sic]

of this act, shall be made notwithstanding that the mini-

mum compensation provided for by law for any member

shall be reduced thereby. Every member shall be deemed to

consent and agree to the deductions made and provided for

in this act and shall receipt in full for his salary or

compensation, and payment less said deductions shall be a

full and complete discharge and acquittance of all claims

and demands whatsoever for the services rendered by such

person during the period covered by such payment, except

as to benefits provided for under this act. [1943 PA 240.]

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MCL 38.35 was amended in 1955 (1955 PA 237) to

require, in relevant part, as follows:

Each member shall, to the date the members of the

retirement system become covered under the federal social

security old-age and survivors’ insurance program on ac-

count of their state employment, contribute 5% of the first

$4,800.00 of his annual compensation to the employees’

savings fund. From and after the said date upon which

members of the retirement system become covered under

the said old-age and survivors’ insurance program, each

member shall contribute to the employees’ savings fund 3%

of the first $4,200.00 of his annual compensation plus 5% of

his annual compensation in excess of $4,200.00.

MCL 38.36 was modified by 1955 PA 237 to provide that

the payroll deduction to the employees’ savings fund

was presumably consented to by the members:

The deductions from the compensation of members,

provided for in section 35 of this act, shall be made

notwithstanding that the minimum compensation pro-

vided for by law for any member shall be reduced thereby.

Every member shall be deemed to consent and agree to the

deductions made and provided for in this act, and payment

less said deductions shall be a full and complete discharge

and acquittance of all claims and demands whatsoever for

the services rendered by such person during the period

covered by such payment, except as to benefits provided for

under this act. [1955 PA 237.]

MCL 38.35 and MCL 38.36 were repealed by 1974 PA

216. However, effective September 30, 2010, the Legis-

lature enacted 2010 PA 185, which added a new MCL

38.35, the statute at issue in this case, to implement

member and participant contribution to health-care-

financing accounts, stating in subsection (1) of § 35:

Except as otherwise provided in this section, beginning

with the first pay date after November 1, 2010 and ending

September 30, 2013, each member and each qualified

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participant shall contribute an amount equal to 3.0% of the

member’s or qualified participant’s compensation to the

appropriate funding account established under the public

employee retirement health care funding act, 2010 PA 77,

MCL 38.2731 to 38.2747. The member and qualified par-

ticipant contributions shall be deducted by the employer

and remitted as employer contributions to the funding

account in a manner that the state budget office and the

retirement system shall determine. The state budget office

and the retirement system shall determine a method of

deducting the contributions provided for in this section

from the compensation of each member and qualified

participant for each payroll and each payroll period. [MCL

38.35(1).]

Notably absent from this legislation is MCL 38.36, now

repealed, the companion provision to prior versions of

MCL 38.35 that expressly stated that the deduction was

the subject of an agreement among members to consent

to the deduction and to preclude litigation premised on

the deduction.

With regard to the present version of MCL 38.35,

plaintiffs contend that the enactment of 2010 PA 185

violates Const 1963, art 11, § 5. We agree and hold that

MCL 38.35 contravenes the provisions of Const 1963,

art 11, § 5 and, therefore, it is unconstitutional and

void. Pillon, 345 Mich at 547.

A review of the record reveals that plaintiffs, unions

and their members, negotiated a CBA wage provision

that culminated in a three percent wage increase for

fiscal year 2010-2011. The commission’s sphere of au-

thority, Plec, 322 Mich at 694, includes determinations

of rates of compensation for all positions in the classi-

fied service:

The commission shall classify all positions in the classi-

fied service according to their respective duties and respon-

sibilities, fix rates of compensation for all classes of posi-

tions, approve or disapprove disbursements for all personal

22 294 M

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services, determine by competitive examination and per-

formance exclusively on the basis of merit, efficiency and

fitness the qualifications of all candidates for positions in

the classified service, make rules and regulations covering

all personnel transactions, and regulate all conditions of

employment in the classified service. [Const 1963, art 11,

§ 5, ¶ 4.]

Although the commission has plenary authority over

the rates of compensation, a system of checks and

balances was established with the Legislature in the

Michigan Constitution of 1963. Mich Ass’n of Govern-

mental Employees, 125 Mich App at 187-189. Specifi-

cally, an increase in the rate of compensation autho-

rized by the commission may be rejected or reduced by

the Legislature “by a two-thirds vote of the members

elected to and serving in each house” provided the vote

occurs within 60 calendar days of the transmitted

increase. Const 1963, art 11, § 5, ¶ 7; Mich Ass’n of

Governmental Employees, 125 Mich App at 187. “The

[L]egislature may not reduce rates of compensation

below those in effect at the time of the transmission of

increases authorized by the commission.” Const 1963,

art 11, § 5, ¶ 7. The Civil Service Commission has the

sole authority to fix rates of compensation. Const 1963,

art 11, § 5, ¶ 4. The term “compensation” is defined as

“something given or received for services, debt, loss,

injury, etc.” Random House Webster’s College Dictio-

nary (2001), p 271. By enacting 2010 PA 185 and adding

the current version of MCL 38.35, the Legislature acted

to reduce the compensation of classified civil servants

by three percent without an accompanying agreement

with the unions or the CSC. The sole authority to fix

rates of compensation of classified civil servants is

vested with the CSC. Womack-Scott, 246 Mich App at

79.

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When interpreting a constitutional provision, the

primary objective is to determine the initial meaning of

the provision to the ratifiers, or the people, at the time

of ratification. Nat’l Pride, 481 Mich at 67. To effectuate

this intent, the plain meaning of the terms used in the

constitution are examined and applied. Toll Northville

Ltd, 480 Mich at 11. To clarify the meaning of this

provision, we may examine the circumstances sur-

rounding its adoption and its purpose. Traverse City

Sch Dist, 384 Mich at 405. Every provision of the

constitution must be interpreted in light of the docu-

ment as a whole, and no provision should be construed

to nullify or impair another. Lapeer Co Clerk, 469 Mich

at 156.

The Separation of Powers Clause of the Michigan

Constitution states:

The powers of government are divided into three

branches: legislative, executive and judicial. No person

exercising powers of one branch shall exercise powers

properly belonging to another branch except as expressly

provided in this constitution. [Const 1963, art 3, § 2.]

“The Constitution of the State of Michigan is not a

grant of power to the [L]egislature, but is a limitation

upon its powers.” In re Brewster Street Housing Site,

291 Mich 313, 333; 289 NW 493 (1939). The plain

language of Const 1963, art 11, § 5, ¶ 7 shows the intent

that the rate of compensation is established by the CSC.

Although the Legislature may exercise oversight over

the CSC, it must act within 60 days of the commission’s

action and must do so by a two-thirds vote of the

members serving in each house. Const 1963, art 11, § 5,

¶7.

In the present case, the Legislature attempted to

eliminate the three percent wage increase for the fiscal

year 2010-2011 but did not succeed. However, the

24 294 M

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Legislature faced a budget deficit and determined that

it would balance the budget by reducing the “compen-

sation” of state employees, as defendants readily admit-

ted in their brief on appeal:

In the fall of 2010, the Legislature was faced with the

acute problem of balancing the State’s budget for the fiscal

year beginning October 1, 2010. As a result the Legislature

enacted MCL 38.35, which requires members and qualified

participants in MSERS to contribute 3% of their compen-

sation to the Trust created by MCL 38.2731, et seq in

return for receiving health care for retirees, former quali-

fied recipients, and their respective dependants. It was

anticipated that MCL 38.35 would generate about $75

million annually to help balance the budget, though the

total cost of health care for recipients for the year begin-

ning October 1, 2010 will be approximately $500 million.

[Defendants’ Brief on Appeal, p 6.]

Pursuant to Const 1963, art 3, § 2 and Const 1963, art

11, § 5 the Legislature did not have the authority to act

to eliminate the three percent wage rate increase by

enacting MCL 38.35 to remedy a budget deficit. The

process for overriding the commission is expressly set

forth in the Michigan Constitution, and when the

Legislature failed to successfully invoke that process, it

enacted MCL 38.35 to exercise authority over compen-

sation, which is within the sphere of authority of the

commission. Plec, 322 Mich at 694.

Moreover, caselaw reflects a record of cooperation

between the branches of government to abide by the

separation of powers as set forth in the Michigan

Constitution. Specifically, when a voluntary layoff pro-

gram failed to achieve the costs savings necessary to

correct an increasing budget deficit, the commission, at

the request of another branch of government, tempo-

rarily suspended its rules to allow for a program of six

one-day layoffs. Crider, 110 Mich App at 723-725. This

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Court upheld the commission’s actions, determining

that the commission had the exclusive authority to

establish the conditions of employment for public em-

ployees. Id. at 725. Additionally, in Mich Ass’n of

Governmental Employees, 125 Mich App at 183-185, the

commission, at the behest of the State Employer, re-

scinded a five-percent wage increase and the addition of

vision benefits for some state classified employees. This

Court ruled that the commission had the authority to

rescind and defer the proposed increase even after it

was considered by the Legislature. Id. at 187. In the

present case, there is no evidence that a process of

negotiation was even attempted between the commis-

sion and the Legislature to achieve cost savings.

Defendants contend that the Legislature acted ap-

propriately because MCL 38.35 merely represents a

deduction similar to deductions for health insurance

and taxes. However, deductions for health insurance

are, to some extent, controlled by the civil service

employee. That is, the employee decides whether to

accept this benefit of employment and the type of plan

from those available, thereby controlling the amount of

the deduction. Taxes imposed by the federal govern-

ment and the state government are standard rates that

apply on the basis of income levels. In the present case,

civil service employees were not given the option of

participating in the retiree health care funding act.

At oral argument, defendants asserted that the Legislature enacted

the retirement system and has maintained authority over the system for

the last 40 years. Therefore, defendants alleged that plaintiffs seek to

invalidate the retirement system as a whole. On the contrary, any

decision regarding MCL 38.35 is not an assault on the collective retire-

ment system. Rather, the litigation is limited to addressing the validity of

the process of removing three percent of employee compensation and

directing it to retiree health care without regard to Const 1963, art 11,

§5.

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Moreover, there is no correlation between the three

percent reduction in compensation for individual civil

service employees and the contribution into the system.

That is, there is no escrow of the individual’s contribu-

tion into a fund for that individual. Plaintiffs contend,

and defendants do not dispute, that the vast majority of

the three percent compensation reduction is being

utilized to fund benefits for current retirees, and is not

being reserved for current employees. Curiously, unlike

the prior statutory versions of MCL 38.35 that set aside

the reduction in compensation into a savings fund in

perpetuity, the present version of MCL 38.35 has a

sunset provision of nearly three years. Defendants do

not dispute plaintiffs’ assertion that the nearly three-

year period of the deduction from compensation of MCL

38.35 will raise $225 million or the amount necessary to

fill a budgetary gap. Indeed, defendants present no

explanation for the sunset provision.

Defendants also submit that the prior versions of the

retirement act, repealed in 1974, existed without con-

stitutional challenge. However, the fact that a constitu-

tional challenge did not occur is not dispositive. As

noted in the context of taxation issues, “[i]t is obviously

correct that no one acquires a vested or protected right

in violation of the Constitution by long use, even when

that span of time covers our entire national existence

and indeed predates it.” Walz v City of New York Tax

Comm, 397 US 664, 678; 90 S Ct 1409; 25 L Ed 2d 697

(1970). The fact that the prior versions of MCL 38.35

were not the subject of a constitutional challenge does

not render them constitutional. Walz, 397 US at 678.

Furthermore, the prior versions of the savings fund

retirement deduction contained an express provision

holding that employees had agreed to the reduction in

wages, see MCL 38.36 repealed in 1974. The current

version of the retirement act, MCL 38.35, contains no

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similar provision, and there was no negotiated agree-

ment with classified civil service employees.

Defendants also contend that the will of the people

must be examined with regard to the passage of MCL

38.35 and that the people would approve of state

workers’ being responsible for retirement costs. The

people did not vote on and ratify the terms and condi-

tions of MCL 38.35. Rather, the will of the people was

expressed in Const 1963, art 11, § 5. There, the people

ratified a system of checks and balances where the CSC

has plenary authority over classified civil servants with

a process in place for legislative override. The people

expect that that the system of checks and balances will

be respected, and a review of Michigan caselaw reveals

that the CSC and the executive branch have dealt

cooperatively to address employee compensation in

times of economic hardship. The people can and should

expect shared sacrifice; however, it cannot come at the

expense of constitutional nullification, and the Legisla-

ture cannot expect to balance the budget on the backs of

state workers.

Const 1963, art 11, § 5 provides that the rates of

compensation for all employees in the classified service

are fixed by the commission. It further sets forth the

process for a legislative override of any wage increase

submitted to the Governor by legislative vote of two-

thirds of the members serving in each house. In the

present case, the Legislature did not achieve its goal of

preventing the wage increase in accordance with the

constitutional provisions. Therefore, it enacted MCL

Defendants also rely on the fact that the three percent deduction

applies to all employees. We only decide actual controversies, Shavers,

402 Mich at 589, and the application of MCL 38.35 to other employees is

not at issue in this appeal. Defendants’ argument that the Legislature

was acting for the benefit of the public health and welfare does not excuse

the failure to comply with the Michigan Constitution.

28 294 M

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38.35 to fill a budget deficit. When a statute contra-

venes the provisions of the Michigan Constitution, it is

unconstitutional and void. Pillon, 345 Mich at 547.

Accordingly, the trial court did not err by granting

plaintiffs’ motion for summary disposition and denying

defendants’ motion for summary disposition.

Affirmed.

ECKERING

,P.J., and S

TEPHENS

, J., concurred with

ORT

OOD

,J.

2011] AFSCME C

OUNCIL

TATE

In re ELLIS

Docket Nos. 301884 and 301887. Submitted June 8, 2011, at Detroit.

Decided August 25, 2011, at 9:05 a.m.

The Department of Human Services petitioned the Wayne Circuit

Court, Family Division, to terminate the parental rights of the

mother and father of A. Ellis. The court, Frank S. Szymanski, J.,

entered an order terminating their parental rights pursuant to

MCL 712A.19b(3)(b)(i) (parent abused child), (b)(ii) (parent failed

to prevent abuse), (j) (child likely to be harmed if returned to

parent), and (k)(iii) (battery, torture, or other serious abuse).

Respondents appealed, contending that the court erred because it

was impossible to determine which parent physically abused the

child.

The Court of Appeals held:

To terminate parental rights, the trial court must find that at

least one of the statutory grounds for termination in MCL

712A.19b(3) has been met by clear and convincing evidence. Only

one statutory ground need be established, even if the court erred

by finding sufficient evidence under other statutory grounds.

Under MCL 712A.19b(5), if a statutory ground for termination is

established and the court finds that termination of parental rights

is in the child’s interests, the court must order termination of the

respondent’s parental rights and order that additional efforts for

reunification of the child with the parent not be made. The trial

court did not clearly err by terminating respondents’ parental

rights to the child under MCL 712A.19b(3)(b)(i) and (ii), (j), and

(k)(iii) because he suffered numerous severe nonaccidental inju-

ries highly indicative of child abuse that most likely occurred over

an extended period of time and the parents lived together, shared

childcare responsibilities, and were the child’s sole caregivers.

Definitive evidence regarding the actual abuser’s identity was not

necessary to terminate parental rights under the grounds for

termination alleged because the evidence demonstrated that at

least one of the respondents must have caused the child’s injuries

and at least one of them failed to prevent them and it did not

matter which did which.

Affirmed.

30 294 M

ICH

30 [Aug

ARENT AND

HILD —

ERMINATION OF

ARENTAL

IGHTS —

ROUNDS FOR

ERMINATION —

DENTITY OF

HILD

BUSER

NKNOWN

Termination of parental rights under MCL 712A.19b(3)(b)(i), (b)(ii),

(j), and (k)(iii) is permissible in the absence of definitive evidence

regarding the identity of the perpetrator of child abuse when the

evidence demonstrates that the respondent parent or parents

must have either caused or failed to prevent the child’s injuries.

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Richard A. Bandstra, Chief Legal

Counsel, and Stephanie Achenbach, Assistant Attorney

General, for the Department of Human Services.

Helm, Miller & Miller (by Beth Anne Miller) for A.

Jones.

Susan K. Rock for T. Ellis.

Before: F

ORT

OOD

,P.J., and D

ONOFRIO

and R

ONAYNE

RAUSE

,JJ.

URIAM

. In these consolidated appeals, respon-

dents appeal as of right the trial court’s order terminat-

ing their parental rights to A. Ellis. We affirm.

Respondents are the child’s parents. When A. Ellis

was less than two months of age, Children’s Protective

Services (CPS) received a complaint that the child had

been brought to the hospital with, to understate the

situation, injuries from physical abuse. In fact, skull

x-rays and skeletal surveys revealed that the child had

swelling and multiple skull fractures on the upper-rear

right side of his head. He had internal bleeding inside

the skull, over the coating of the brain, in the area of the

fractures as well as on the left side of his head. In the

area of the fractures, he had reduced blood supply to his

brain. A. Ellis had 13 broken bones, including 7 par-

tially healed fractures to his posterior ribs, with 3

2011] In re E

LLIS

breaks on his right side and 4 on his left. He also had

fractures to bones in an arm and in his legs.

Neither respondent was able to provide an explana-

tion for these severe injuries, and they agreed that they

were A. Ellis’s only caretakers. They explained that the

child had been particularly fussy and crying more than

usual. A physician qualified as an expert in child abuse

and neglect, however, was able to explain the injuries.

The rib fractures had resulted from physical abuse and

very forceful squeezing of his rib cage, especially the

posterior injuries. The fractures to A. Ellis’s arm and

leg bones were in the metaphysis portion of the bones,

which was significant because fractures in that area are

highly indicative of child abuse and typically occur

when babies are shaken very forcefully. Finally, none of

the child’s injuries appeared to be accidental, related to

any genetic problems, or the result of a difficult child-

birth. Injuries caused by, say, being dropped or hitting

his head against a faucet would have looked different.

The physician expert concluded that A. Ellis had suf-

fered “abuse head trauma and physical abuse.”

To terminate parental rights, the trial court must

find that at least one of the statutory grounds for

termination in MCL 712A.19b(3) has been proved by

clear and convincing evidence. In re Trejo Minors, 462

Mich 341, 355; 612 NW2d 407 (2000). Only one statu-

tory ground need be established by clear and convincing

evidence to terminate a respondent’s parental rights,

even if the court erroneously found sufficient evidence

under other statutory grounds. In re Powers Minors,

244 Mich App 111, 118; 624 NW2d 472 (2000). If a

statutory ground for termination is established and the

trial court finds “that termination of parental rights is

The metaphysis is a transitional section of long bones between the

long tubular shaft (the diaphysis) and the expanded ends (the epiphyses).

32 294 M

ICH

30 [Aug

in the child’s best interests, the court shall order

termination of parental rights and order that additional

efforts for reunification of the child with the parent not

be made.” MCL 712A.19b(5).

This Court reviews the trial court’s findings under

the clearly-erroneous standard. MCR 3.977(K); Trejo,

462 Mich at 356-357. A finding is clearly erroneous if,

although there is evidence to support it, this Court is

left with a definite and firm conviction that a mistake

has been made. In re Miller, 433 Mich 331, 337; 445

NW2d 161 (1989). To be clearly erroneous, a decision

must be more than maybe or probably wrong. In re

Sours Minors, 459 Mich 624, 633; 593 NW2d 520

(1999). Further, regard is to be given to the special

opportunity of the trial court to judge the credibility of

the witnesses who appeared before it. MCR 2.613(C);

MCR 3.902(A); Miller, 433 Mich at 337.

Respondents’ parental rights were terminated pur-

suant to MCL 712A.19b(3)(b)(i) (parent abused child),

(b)(ii) (parent failed to prevent abuse), (j) (child would

likely be harmed if returned to the parent), and (k)(iii)

(abuse included battery, torture, or other serious

abuse). Respondents argue that the trial court erred by

terminating their rights. We disagree.

The most significant and interesting argument re-

spondents raise is that it is impossible to determine

which of them committed this heinous abuse of the

minor child. That would be an extremely relevant, and

possibly dispositive, concern in a criminal proceeding

against either or both of them, but it is irrelevant in a

termination proceeding. When there is severe injury to

an infant, it does not matter whether respondents

committed the abuse at all, because under these circum-

stances there was clear and convincing evidence that

they did not provide proper care. In re Edwards, un-

2011] In re E

LLIS

published opinion per curiam of the Court of Appeals,

issued February 21, 2006 (Docket No. 264477), p 3.

While Edwards is unpublished and therefore not bind-

ing, MCR 7.215(C)(1), we find its reasoning sound and

persuasive. See People v Jamison, 292 Mich App 440,

445; 807 NW2d 427 (2011).

This Court has reached similar conclusions in other

unpublished opinions with similar facts. We find those

cases persuasive as well.

In In re Armstrong, unpublished opinion per curiam

of the Court of Appeals, issued August 15, 2006 (Docket

No. 266856), a three-month-old child was treated for

multiple nonaccidental fractures. They were deter-

mined to be the result of abuse, but because the child

had several caregivers, it was not possible to determine

the actual perpetrator. This Court nevertheless found

that termination of the respondents’ parental rights

was appropriate, reasoning that the multitude of inju-

ries over an extended period showed that the parents

could have prevented the abuse but failed to do so and

that the child would likely be injured again if returned

to the care of either. In In re Rangel, unpublished

opinion per curiam of the Court of Appeals, issued

August 10, 2006 (Docket No. 268172), the parents were

the sole caretakers of a 20-month-old child who suffered

severe, nonaccidental wounds. This Court affirmed the

order terminating the mother’s parental rights, con-

cluding that at least one of them must have caused the

injuries and that their joint denial of knowledge of the

source of the injuries showed a reasonable likelihood

that the child would suffer further injury in the moth-

er’s care. In In re Turner, unpublished opinion per

curiam of the Court of Appeals, issued January 20, 2009

(Docket No. 286133), p 2, this Court reasoned that

because the respondents were the sole caregivers of a

34 294 M

ICH

30 [Aug

nonaccidentally injured child, the trial court had “little

choice but to conclude that one or both parents abused

[the child] and that the other parent failed to protect

him.”

As noted, we find the reasoning in these cases per-

suasive and applicable here. The trial court’s decision to

terminate respondents’ parental rights was supported

by the law and by the facts apparent from the record.

Respondents lived together in a small apartment. Both

testified that they were the only two individuals who

took care of the child. The child suffered numerous

nonaccidental injuries, and the explanations provided

were inconsistent with the extent and nature of the

child’s injuries. The injuries were numerous, highly

indicative of child abuse, using a very high force of

impact, and inconsistent with any sort of accident. The

fact that many of them were in various stages of healing

showed that A. Ellis had suffered multiple instances of

abuse over a prolonged time. The physician testified

that while the child may not have been crying con-

stantly, he would have shown signs of distress at least

periodically through lack of appetite, sleeping more,

and increased fussiness. Respondents could not offer

any plausible alternative explanation for A. Ellis’s in-

juries. We conclude that the trial court properly deter-

mined that at least one of them had perpetrated the

abuse and at least one of them had failed to prevent it;

consequently, it did not matter which did which.

We hold that termination of parental rights under

MCL 712A.19b(3)(b)(i), (b)(ii), (j), and (k)(iii) is permis-

sible even in the absence of definitive evidence regard-

ing the identity of the perpetrator when the evidence

Although published before this case, in In re VanDalen, 293 Mich App

120; 809 NW2d 412 (2011), this panel arrived at the same conclusion as

a basis for terminating parental rights under MCL 712A.19b(3)(g) and (j).

2011] In re E

LLIS

does show that the respondent or respondents must

have either caused or failed to prevent the child’s

injuries. The evidence in this case clearly shows that A.

Ellis suffered numerous nonaccidental injuries that

likely occurred on more than one occasion and that the

parents lived together, shared childcare responsibilities,

and were the child’s sole caregivers. The trial court did

not clearly err by finding that the statutory grounds for

termination of respondents’ parental rights were estab-

lished by clear and convincing evidence and that termi-

nation of respondents’ parental rights was in the child’s

best interests.

Affirmed.

ORT

OOD

,P.J., and D

ONOFRIO

and R

ONAYNE

RAUSE

JJ., concurred.

36 294 M

ICH

30 [Aug

RICHARD v SCHNEIDERMAN & SHERMAN, PC

Docket No. 297353. Submitted July 7, 2011, at Detroit. Decided August

25, 2011, at 9:10 a.m. Vacated and remanded, 490 Mich 1001.

Aaron Richard brought an action in the Wayne Circuit Court against

Schneiderman & Sherman, P.C., GMAC Mortgage, and Mortgage

Electronic Registration Systems, Inc. (MERS). Richard had pur-

chased real property, obtaining financing in part through a $50,000

loan from Homecomings Financial Network, Inc. The loan was

simultaneously secured by a mortgage with MERS as the nominee of

Homecomings. Schneiderman acting as GMAC’s agent, notified Ri-

chard that his mortgage was in default and informed him of his

rights. MERS subsequently began nonjudicial foreclosure by adver-

tisement under MCL 600.3201 et seq. and purchased the property at

the subsequent sheriff’s sale. Richard’s suit was brought during the

redemption period and challenged the sheriff’s sale on numerous

grounds. Schneiderman, GMAC, and MERS moved for summary

disposition, which the court, Michael F. Sapala, J., granted. Richard

appealed.

The Court of Appeals held:

Residential Funding Co, LLC v Saurman, 292 Mich App 321

(2011), held that a mortgagee may not use nonjudicial foreclosure by

advertisement when it does not own the underlying note on the real

property. Generally, judicial decisions are given complete retroactive

effect. Complete prospective application is limited to decisions which

overrule clear and uncontradicted caselaw. The threshold question is

whether the decision clearly established a new principle of law.

Saurman must be given full retroactive effect because it did not

overrule any law or reconstrue a statute. Given the unique nature of

foreclosure by advertisement, Saurman would not apply in an action

if the mortgagor failed to challenge the foreclosure during the

redemption period or any proceedings seeking an eviction order or if

the property had been sold to a bona fide purchaser. Richard timely

filed his claim during the redemption period, however, and there was

no evidence of a bonafide purchaser, so Saurman applied and the

foreclosure proceedings were void ab initio.

Reversed, foreclosure proceeding vacated, and case remanded

for further proceedings.

2011] R

ICHARD V

CHNEIDERMAN &

HERMAN

Aaron Richard in propria persona.

Schneiderman & Sherman, P.C. (by Andrew J. Hubbs

and Erin R. Katz), for defendants.

Before: B

ORRELLO

,P.J., and M

ETER

and S

HAPIRO

,JJ.

URIAM

. Plaintiff, Aaron Richard, appeals as of

right an order granting summary disposition in favor of

defendants, Schneiderman & Sherman, P.C., GMAC Mort-

gage, and Mortgage Electronic Registration Systems, Inc.

(MERS). We reverse the trial court’s grant of summary

disposition, vacate the foreclosure proceeding, and re-

mand for further proceedings consistent with this opinion.

This case arises from plaintiff’s attempts to challenge

the foreclosure and sale of property he owned located at

19952 Hubbell in Detroit. Plaintiff purchased the prop-

erty in part through a $50,000 loan, executed on May 4,

2006, from Homecomings Financial Network, Inc. The

loan was secured by a May 4, 2006, mortgage with

MERS, as the nominee of Homecomings.

It is not clear from the record when plaintiff fell

behind on his mortgage payments. However, on October

9, 2009, Schneiderman, acting as GMAC’s agent, mailed

plaintiff a notice stating that his mortgage was in

default and informing him of his rights, including the

right to request mediation. The outstanding debt owed

to GMAC was listed as $50,267.78. Ultimately, MERS

began nonjudicial foreclosure by advertisement under

MCL 600.3201 et seq. and purchased the property at the

subsequent sheriff’s sale.

Plaintiff filed suit, in propria persona, during the

redemption period, alleging that the sheriff’s sale was

“flawed” on numerous grounds and asserting that

MERS held no rights to the debt. Defendants moved for

summary disposition, asserting, among other things,

38 294 M

ICH

37 [Aug

that the sheriff’s sale was “not only legal, but also valid,

as all required procedures were followed.” The trial

court granted summary disposition in favor of defen-

dants and dismissed plaintiff’s claim.

Although many of plaintiff’s claims are without

merit, it is clear that the sheriff’s sale was invalid

because MERS foreclosed on plaintiff’s property using

nonjudicial foreclosure by advertisement even though

MERS was only a mortgagee. This Court has held that

MERS is not entitled to use foreclosure by advertise-

ment when it does not own the underlying note. Resi-

dential Funding Co, LLC v Saurman, 292 Mich App

321, 331-333; 807 NW2d 412 (2011).* Under such

circumstances, “MERS’ inability to comply with the

statutory requirements rendered the foreclosure pro-

ceedings...void ab initio.” Id. at 342. Because the

application of Saurman is dispositive, we must deter-

mine whether Saurman is retroactive and, if so,

whether to assign it full or limited retroactivity.

“[T]he general rule is that judicial decisions are to be

given complete retroactive effect.” Hyde v Univ of Mich

Bd of Regents, 426 Mich 223, 240; 393 NW2d 847

(1986). “Complete prospective application has generally

been limited to decisions which overrule clear and

uncontradicted case law.” Id.

Rules determined in opinions that apply retroactively

apply to all cases “still open on direct review and as to all

events, regardless of whether such events predate or post-

date our announcement of the rule[s].” Harper v Virginia

Dep’t of Taxation, 509 US 86, 97; 113 S Ct 2510; 125 L Ed

2d 74 (1993). Rules determined in opinions that apply

prospectively only, on the other hand, not only do not apply

to cases still open on direct review, but do not even apply to

the parties in the cases in which the rules are declared. See

* Reversed, 490 Mich 909 (2011)—R

EPORTER

2011] R

ICHARD V

CHNEIDERMAN &

HERMAN

Pohutski v City of Allen Park, 465 Mich 675, 699; 641

NW2d 219 (2002). [McNeel v Farm Bureau Gen Ins Co of

Mich, 289 Mich App 76, 94; 795 NW2d 205 (2010).]

Given that the Saurman Court applied its holding to

the cases under review in that appeal, it is clear that the

holding in Saurman has been afforded at least limited

retroactivity.

However, cases given limited retroactivity

apply “in pending cases where the issue had been raised

and preserved,” Stein v Southeastern Mich Family

Planning Project, Inc, 432 Mich 198, 201; 438 NW2d 76

(1989), while cases with full retroactivity apply to all

cases then pending. This distinction makes a difference

because, although plaintiff contested the foreclosure, he

did not specifically raise and preserve the issue of

whether MERS has the authority to foreclose by adver-

tisement. Thus, Saurman is only applicable to this case

if it is granted full retroactivity.

“The threshold question is whether ‘the decision

clearly established a new principle of law.’ ” Rowland v

Washtenaw Co Rd Comm, 477 Mich 197, 220; 731

NW2d 41 (2007) (citation omitted). Our Supreme Court

has held that cases that properly interpret statutes,

even if prior caselaw had held differently, “restore[]

legitimacy to the law” and, thus, are “not a declaration

of a new rule, but... avindication of controlling legal

authority[.]” Id. at 222 (quotation marks and citation

omitted). In Saurman, this Court interpreted MCL

600.3204(1)(d). There was no existing caselaw and,

therefore, it did not overrule any law or reconstrue a

statute. See Hyde, 426 Mich at 240. Consequently, this

In addition, “ ‘there is a serious question as to whether it is consti-

tutionally legitimate for this Court to render purely prospective opinions,

as such ruling are, in essence, advisory opinions.’ ” Rowland v Washt-

enaw Co Rd Comm, 477 Mich 197, 221; 731 NW2d 41 (2007), quoting

Wayne Co v Hathcock, 471 Mich 445, 485 n 98; 684 NW2d 765 (2004).

40 294 M

ICH

37 [Aug

Court’s decision in Saurman was not “tantamount to a

new rule of law,” see Rowland, 477 Mich at 222 n 17,

and, therefore should be given full retroactive effect.

Hence, Saurman is applicable to the instant case,

rendering the foreclosure proceedings void ab initio.

Saurman, 292 Mich App at 342.

However, given the unique nature of foreclosure by

advertisement, there is longstanding caselaw that limits

the application of Saurman. First, our Supreme Court has

held that a mortgagor must challenge the validity of a

foreclosure by advertisement promptly and without delay.

See White v Burkhardt, 338 Mich 235, 239; 60 NW2d 925

(1953) (concluding that a claim was too late when the

redemption period had expired before the filing of the

complaint); Fox v Jacobs, 289 Mich 619, 625; 286 NW 854

(1939) (concluding that a challenge 20 months after fore-

closure sale was too late). In addition, our Supreme Court

has held that the validity of a foreclosure by advertise-

ment may not be challenged after the property is sold to a

bona fide purchaser. See Hogan v Hester Investment Co,

257 Mich 627; 241 NW 881 (1932). Thus, Saurman does

not apply in an action to recover title or possession of

property if the mortgagor failed to challenge the foreclo-

sure by advertisement during the redemption period or

any proceedings seeking an order of eviction, or if the

foreclosed property has been sold to a bona fide purchaser.

Because plaintiff filed his claim during the redemp-

tion period and there is no evidence of a bona fide

purchaser, he is entitled to relief under Saurman.

Accordingly, we reverse the trial court’s grant of sum-

mary disposition, vacate the foreclosure proceeding,

and remand for further proceedings consistent with

this opinion. We do not retain jurisdiction.

ORRELLO

,P.J., and M

ETER

and S

HAPIRO

, JJ., con-

curred.

2011] R

ICHARD V

CHNEIDERMAN &

HERMAN

PRICE v HIGH POINTE OIL COMPANY, INC

Docket No. 298460. Submitted July 12, 2011, at Lansing. Decided

August 25, 2011, at 9:15 a.m. Leave to appeal granted, 491 Mich 870.

Beckie Price brought an action in the Clinton Circuit Court against

High Pointe Oil Company, Inc., claiming, among other things,

noneconomic damages for the mental anguish, emotional distress,

and psychological injuries sustained when High Pointe negligently

pumped 400 gallons of fuel oil into the basement of her house. The

incident created an environmental hazard that required Price’s

home to be razed. Before the jury trial, High Pointe moved for

summary disposition, in part on the issue of noneconomic dam-

ages, arguing that noneconomic damages resulting from real

property damage were not compensable. The court, Randy L.

Tahvonen, J., denied that part of High Pointe’s motion, concluding

that such damages could be recovered in a negligence action. The

jury awarded Price $100,000 for noneconomic damages, after

which High Pointe filed a motion for judgment notwithstanding

the verdict (JNOV) and remittitur. The court denied the motion,

and High Pointe appealed.

The Court of Appeals held:

1. As a general rule, noneconomic damages are recoverable in

tort claims, and emotional damages include both emotional dis-

tress and mental anguish. A tortfeasor is liable for all injuries

resulting directly from the wrongful act, whether foreseeable or

not, provided the damages are the legal and natural consequences

of the wrongful act. Because personal property is replaceable

chattel, damages for emotional distress and mental anguish for

injuries to personal property are not recoverable in a tort action.

Real property, however, has a unique and peculiar value, and

mental anguish damages naturally flowing from the damage to or

destruction of real property may be recovered in a negligence

action. Moreover, the plaintiff need not suffer the emotional

distress as a result of a fear of physical impact. Unlike a claim for

emotional distress, a party need not demonstrate a physically

manifested injury to recover for mental anguish.

2. The trial court properly denied High Pointe’s motion for

summary disposition on the issue of noneconomic damages. Men-

42 294 M

ICH

42 [Aug

tal anguish includes shame, mortification, mental pain and anxi-

ety, discomfiture, and humiliation. Because Price presented evi-

dence that she cried and became upset when talking about the

destruction of her home, that her decision-making was affected at

home and work, that she had difficulty sleeping and focusing her

thoughts, and that she was prescribed and took an antidepressant

for four months, a genuine issue of material fact existed regarding

her claim for noneconomic damages.

3. The trial court also properly denied defendant’s motion for

JNOV. The jury verdict must stand if reasonable jurors could have

reasonably reached different conclusions regarding the evidence.

Price’s testimony that she felt a great sense of personal loss following

the destruction of her home; that she was embarrassed to move into

her parents’ home as an adult; that she suffered from anxiety,

sleeplessness, and an inability to concentrate because of the stress;

and that she took an antidepressant for four months was sufficient to

submit the issue of noneconomic damages to the jury.

4. If the only error in the trial was the inadequacy or excessive-

ness of the verdict, under MCR 2.611(E)(1) the trial court may deny

a motion for new trial on the condition that the nonmoving party

consent to the entry of a judgment in the amount that the court finds

to be the lowest (if the verdict was inadequate) or the highest (if the

verdict was excessive) amount the evidence will support. The court

must view the evidence in the light most favorable to the nonmoving

party when deciding whether the jury award is supported by the

evidence. The court must consider objective criteria relating to the

actual conduct of the trial or the evidence presented, including

whether the verdict was the result of improper methods, prejudice,

passion, partiality, sympathy, corruption, or mistake of law or fact;

whether it was within the limits of what reasonable minds would

deem to be just compensation for the injury inflicted; and whether

the amount actually awarded is comparable to other awards in

similar cases. The court’s decision is given deference because it is in

the best position to evaluate the credibility of the witnesses and is in

the best position to make an informed decision on the issue of

remittitur. High Pointe failed to support its claim that the jury was

influenced by sympathy following Price’s testimony regarding how

she suffered mentally and emotionally from the loss of her home.

Given the evidence Price presented, the court did not abuse its

discretion by denying High Pointe’s motion for remittitur. The jury’s

$100,000 award for noneconomic damages was within the limits of

what reasonable minds would deem to be just compensation for

Price’s mental anguish.

Affirmed.

2011] P

RICE V

IGH

OINTE

1. D

AMAGES —

ONECONOMIC

AMAGES —

EGLIGENCE —

EAL

ROPERTY —

ENTAL

NGUISH

As a general rule, noneconomic damages are recoverable in tort

claims, and emotional damages include both emotional distress

and mental anguish; a tortfeasor is liable for all injuries resulting

directly from the wrongful act, whether foreseeable or not, pro-

vided the damages are the legal and natural consequences of the

wrongful act; real property has a unique and peculiar value, and

mental anguish damages naturally flowing from the damage to or

destruction of real property may be recovered in a negligence

action; the plaintiff need not suffer the emotional distress as a

result of a fear of physical impact; unlike a claim for emotional

distress, a party need not demonstrate a physically manifested

injury to recover for mental anguish; mental anguish includes

shame, mortification, mental pain and anxiety, discomfiture, and

humiliation.

2. J

UDGMENTS —

XCESSIVE

UDGMENTS —

EMITTITUR —

BJECTIVE

RITERIA

If the only error in the trial was the inadequacy or excessiveness of

the verdict, the trial court may deny a motion for new trial on the

condition that the nonmoving party consent to the entry of a

judgment in the amount that the court finds to be the lowest (if the

verdict was inadequate) or the highest (if the verdict was exces-

sive) amount the evidence will support; a trial court must view the

evidence in the light most favorable to the nonmoving party when

deciding whether the jury award is supported by the evidence; the

court must consider objective criteria relating to the actual con-

duct of the trial or the evidence presented, including (1) whether

the verdict was the result of improper methods, prejudice, passion,

partiality, sympathy, corruption, or mistake of law or fact, (2)

whether it was within the limits of what reasonable minds would

deem to be just compensation for the injury inflicted, and (3)

whether the amount actually awarded is comparable to other

awards in similar cases; the court’s decision is given deference

because the court is in the best position to evaluate the credibility

of the witnesses and is in the best position to make an informed

decision on the issue of remittitur (MCR 2.611[E][1]).

Sinas, Dramis, Brake, Boughton & McIntyre, P.C. (by

James F. Graves and Stephen H. Sinas), for plaintiff.

Garan Lucow Miller, P.C. (by Megan K. Cavanagh),

for defendant.

44 294 M

ICH

42 [Aug

Before: B

ECKERING

,P.J., and F

ORT

OOD

and

TEPHENS

,JJ.

ECKERING

,P.J. In this negligence action, defendant,

High Pointe Oil Company, Inc., appeals as of right

following a jury trial in which plaintiff, Beckie Price,

was awarded $100,000 in noneconomic damages after

defendant filled the basement of her home with nearly

400 gallons of fuel oil. The incident created an environ-

mental hazard that required plaintiff’s home to be

razed from the site and left her displaced from a

permanent home for almost two years. Defendant ap-

peals the trial court’s orders denying its motion for

summary disposition on the issue of noneconomic dam-

ages and it’s motion for judgment notwithstanding the

verdict (JNOV) and remittitur. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff owned a home located in DeWitt, Michigan.

She and her former husband helped to build the house,

which was completed in 1975. The house was heated by

an oil furnace, and the oil tank was kept in the

basement. Beginning in 1995, the tank was serviced by

Mooney Oil, which was later purchased by defendant.

Plaintiff was on defendant’s “keep full” list. In 2006,

plaintiff replaced her oil furnace with a propane fur-

nace. She then sold the oil furnace and oil tank to a

neighbor, who removed both from plaintiff’s basement.

Before switching to the propane furnace, plaintiff tele-

phoned defendant and canceled its services. There were

no fuel oil deliveries made to plaintiff’s house between

October 2006 and November 2007.

On November 17, 2007, while plaintiff was at work,

defendant attempted to deliver fuel oil to her house

because her name was inadvertently placed on defen-

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dant’s “keep full” list. Although the oil furnace and oil

tank had been removed from plaintiff’s basement, the

fill pipe located outside of the house had remained

unchanged. Defendant’s oil truck driver took the hose

from his truck, hooked the hose up to the fill pipe, and

pumped fuel oil into plaintiff’s basement. After four or

five minutes, the driver stopped pumping because he

felt it had gone too long and that there might be a

problem. The driver then looked into the basement and

saw fuel oil on the floor. He called 911, and emergency

crews responded shortly thereafter. In total, the driver

pumped 396 gallons of fuel oil into plaintiff’s basement.

An environmental consulting company assessed the

damage. Many of plaintiff’s personal items located on the

main floor of the home were able to be salvaged; however,

most of the items in the basement were too heavily

contaminated to be salvaged. Additionally, more porous

items, such as mattresses and pillows, could not be sal-

vaged because they had absorbed oil fumes. The items

that could be salvaged were placed in storage, and the rest

were put in a pole barn on plaintiff’s property. Eventually,

it was determined that the oil had leaked into the soil and

that as a result of the contamination, the entire house had

to be demolished. The Department of Environmental

Quality notified plaintiff on April 18, 2008, that the

excavation and cleanup of the soil had been completed and

that no further action was required.

From November 17, 2007, to March 1, 2008, plaintiff

stayed in the extra bedroom of her parents’ house,

which was also being used to store a number of large

antiques, although she often slept on the couch. Her

parents were in Texas for all but one week of the time

she lived there. From March 1, 2008, until late Septem-

ber 2009, plaintiff stayed in a duplex. Thereafter, she

moved into a new house that she had helped to build.

46 294 M

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Plaintiff built the new house on the same property as

the old one, but the new house had to be built in a

different location on the property because the soil was

unstable where the site had been excavated.

Plaintiff filed suit in August 2008, alleging counts of

negligence, gross negligence, negligent infliction of emo-

tional distress, nuisance, trespass, and a private citizen’s

claim under the Natural Resources and Environmental

Protection Act, MCL 324.101 et seq. She requested gen-

eral and compensatory damages for the economic harm

caused by defendant’s conduct, as well as noneconomic

damages for annoyance, inconvenience, pain, suffering,

mental anguish, emotional distress, and psychological

injuries caused by the destruction of her house.

Plaintiff moved for partial summary disposition un-

der MCR 2.116(C)(9) and (10), requesting that the trial

court grant summary disposition on her claims of

negligence, negligent infliction of emotional distress,

trespass, and nuisance. Plaintiff also argued that under

the court rules she was entitled to seek noneconomic

damages for emotional distress and mental anguish and

exemplary damages. Defendant filed a countermotion

for summary disposition under MCR 2.116(C)(8) and

(10). In regard to plaintiff’s request for noneconomic

damages, defendant argued that noneconomic damages

resulting from property damage are not compensable.

The trial court granted plaintiff summary disposition

on her negligence claim and granted defendant summary

disposition on plaintiff’s claims of gross negligence and

negligent infliction of emotional distress. The court denied

both parties’ motions for summary disposition on the

trespass, nuisance, and private citizen’s claims. With

regard to noneconomic damages, the court stated:

[The Court]: Relating to the damages, in essence, by

dismissing the claim of negligent infliction of emotional

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distress, I have deprived the Plaintiff of the opportunity to

seek mental anguish damages secondary to property dam-

age, and I think that’s the law....

So, it seems to me that the request for economic losses

adequate to put the Plaintiff in the position she would have

occupied had the torts not been committed, is, of course, for

the jury, and I’m satisfied that she can seek to recover

non-economic damages as typically allowed in connection

with the claim for negligence.

***

[Defense Counsel]: Just for clarification for me, you are

allowing mental anguish damages for the negligence claim

resulting to the property damage?

The Court: Yes, and that’s why I took out, in part, the

claim for negligent infliction of emotional distress, because

the idea of inflicting emotional distress is that the foresee-

able outcome of the actor’s conduct would be to cause

emotional distress, and I don’t think that a negligent

defendant has to foreseeably see that as an outcome of

their conduct if, in fact, it results naturally and probably

from that conduct.

The parties agree that during the time plaintiff was

displaced from her home, all of her economic losses,

including the costs of demolition, excavation, and reme-

diation expenses, were paid by her insurer, defendant,

or defendant’s insurer. Plaintiff received $175,000 from

her insurance company, which represented the fair

market value of her house, approximately $10,000 for

lost personal property, and $1,000 a month for rent

while she lived in the duplex. Plaintiff testified at her

deposition that she had not incurred any out-of-pocket

costs associated with the incident.

In January 2010, the case proceeded to a jury trial on

plaintiff’s trespass, nuisance, and private citizen’s

claims, as well as the issue of damages related to her

48 294 M

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42 [Aug

negligence claim. Before presenting any proofs, plaintiff

withdrew her claim for economic damages, as well as

her trespass and nuisance claims. She requested that

the court handle her private citizen’s claim posttrial.

Over defendant’s objection, the court ruled that plain-

tiff was entitled to seek noneconomic damages for

mental anguish, fright, shock, denial of social pleasures

or enjoyments, and any embarrassment she suffered as

a result of defendant’s negligence.

Plaintiff testified that she felt a great sense of loss over

the destruction of her house, which held special memories

for her; she was embarrassed to move into her parents’

house as an adult; she suffered from sleeplessness and an

inability to concentrate because of the stress of the situa-

tion; and she took an antidepressant over the course of

several months. At the close of proofs, the court instructed

the jury, over defendant’s objection, that it could award

plaintiff “non-economic damages, for things such as men-

tal anguish and fright and shock, and denial of social

pleasures and enjoyment in the use of the former home

and embarrassment or humiliation” suffered as a result of

the property damage negligently caused by defendant.

The jury returned a verdict in favor of plaintiff in the

amount of $100,000 for past damages and zero dollars for

future damages. The court entered a judgment in plain-

tiff’s favor. Thereafter, defendant filed a motion for a new

trial, JNOV, and remittitur, arguing that plaintiff had

failed to present sufficient proofs to support the verdict.

The court denied the motion.

Defendant now appeals as of right the trial court’s

orders regarding plaintiff’s recovery of noneconomic

damages.

At trial, defendant moved for a directed verdict on plaintiff’s private

citizen’s claim. The trial court took the matter under advisement and

later granted defendant’s motion.

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II. STANDARDS OF REVIEW

Whether a plaintiff is entitled to seek noneconomic

damages for damage to or destruction of real property

presents a question of law, which we review de novo. See

2000 Baum Family Trust v Babel, 488 Mich 136, 143;

793 NW2d 633 (2010).

Plaintiff moved for partial summary disposition un-

der MCR 2.116(C)(9) and (10), and defendant moved for

summary disposition under MCR 2.116(C)(8) and (10).

The trial court did not specify which subrules it relied

on in deciding the parties’ motions.

A grant or denial of summary disposition is reviewed de

novo to determine if the moving party is entitled to

judgment as a matter of law. Maiden v Rozwood, 461 Mich

109, 118; 597 NW2d 817 (1999). A motion under MCR

2.116(C)(8) tests the legal sufficiency of a claim by the

pleadings alone. [Id.] at 119. The motion should be granted

only when the claim is so legally deficient that recovery

would be impossible even if all well-pleaded factual allega-

tions were true and viewed in the light most favorable to

the nonmoving party. Id. Likewise, a motion under MCR

2.116(C)(9) tests the legal sufficiency of a defense by the

pleadings alone. Slater v Ann Arbor Pub Schools Bd of Ed,

250 Mich App 419, 425; 648 NW2d 205 (2002). All well-

pleaded factual allegations are accepted as true, and sum-

mary disposition is appropriate only “when the defendant’s

pleadings are so clearly untenable that as a matter of law

no factual development could possibly deny the plaintiff’s

right to recovery.” Id. at 425-426. A motion under MCR

2.116(C)(10) tests the factual sufficiency of a claim.

Maiden, [461 Mich] at 119-120. All admissible evidence

submitted by the parties is reviewed in the light most

favorable to the nonmoving party and summary disposition

is appropriate only when the evidence fails to establish a

genuine issue regarding any material fact. Id.; MCR

2.116(G)(6). [USA Cash #1, Inc v City of Saginaw, 285

Mich App 262, 265-266; 776 NW2d 346 (2009).]

50 294 M

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42 [Aug

A trial court’s decision on a motion for JNOV is also

reviewed de novo. Prime Financial Servs LLC v Vinton,

279 Mich App 245, 255; 761 NW2d 694 (2008). We view

the evidence and all legitimate inferences from it in the

light most favorable to the nonmoving party to deter-

mine whether a question of fact existed. Livonia Bldg

Materials Co v Harrison Constr Co, 276 Mich App 514,

517-518; 742 NW2d 140 (2007). If reasonable jurors

could have honestly reached different conclusions re-

garding the evidence, the jury verdict must stand.

Genna v Jackson, 286 Mich App 413, 417; 781 NW2d

124 (2009).

We review for an abuse of discretion a trial court’s

decision regarding remittitur. Silberstein v Pro-Golf of

America, Inc, 278 Mich App 446, 462; 750 NW2d 615

(2008). An abuse of discretion occurs when the result is

outside the range of principled outcomes. Heaton v

Benton Constr Co, 286 Mich App 528, 538; 780 NW2d

618 (2009). The trial court, having witnessed the testi-

mony and the evidence as well as the jury’s reactions, is

in the best position to evaluate the credibility of the

witnesses and make an informed decision. Unibar

Maintenance Servs, Inc v Saigh, 283 Mich App 609,

629-630; 769 NW2d 911 (2009). Therefore, we must

give due deference to the trial court’s decision. Id.

III. NONECONOMIC DAMAGES FOR THE DESTRUCTION

OF REAL PROPERTY

Defendant argues on appeal that under current

Michigan law, plaintiff is not entitled to seek noneco-

nomic damages for mental anguish caused by the de-

struction of her home. Defendant first raised this argu-

ment in response to plaintiff’s motion for summary

disposition, and the argument presents an issue of first

impression in this state. We agree with the trial court

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that it was legally permissible for plaintiff to seek

mental anguish damages in this case.

As a general rule, noneconomic damages are recov-

erable in tort claims, and emotional damages include

both emotional distress and mental anguish. See Phil-

lips v Butterball Farms Co, Inc (After Second Remand),

448 Mich 239, 251 n 32; 531 NW2d 144 (1995); McClain

v Univ of Mich Bd of Regents, 256 Mich App 492,

498-500; 665 NW2d 484 (2003). In Sutter v Biggs, 377

Mich 80, 86; 139 NW2d 684 (1966), our Supreme Court

explained:

The general rule, expressed in terms of damages, and

long followed in this State, is that in a tort action, the

tort-feasor is liable for all injuries resulting directly from

his wrongful act, whether foreseeable or not, provided the

damages are the legal and natural consequences of the

wrongful act, and are such as, according to common expe-

rience and the usual course of events, might reasonably

have been anticipated.

According to defendant, plaintiff is limited in her

recovery to the difference between the market value of

her house before and after the damage. Because plain-

tiff was paid the difference in market value, defendant

argues that she has been fully compensated. Defendant

relies on Strzelecki v Blaser’s Lakeside Indus of Rice

Lake, Inc, 133 Mich App 191; 348 NW2d 311 (1984), and

Baranowski v Strating, 72 Mich App 548; 250 NW2d

744 (1976), to support its argument. In Strzelecki, this

Court stated:

“It is the settled law of this state that the measure of

damages to real property, if permanently irreparable, is the

difference between its market value before and after the

damage. However, if the injury is reparable, and the

expense of repairs is less than the market value, the

measure of damage is the cost of the repairs.” [Strzelecki,

133 Mich App at 194 (citation omitted).]

52 294 M

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42 [Aug

In both Strzelecki and Baranowski, however, this Court

addressed the measure of damages for economic loss

suffered as a result of the destruction of real property.

Neither case included a discussion of noneconomic

damages. Therefore, defendant’s reliance on Strzelecki

and Baranowski is misplaced.

Defendant further argues that recovery for emo-

tional distress or mental anguish caused by damage to

or the destruction of real property is not permitted

under common law. In support of its argument, defen-

dant cites Koester v VCA Animal Hosp, 244 Mich App

173; 624 NW2d 209 (2000), and Bernhardt v Ingham

Regional Med Ctr, 249 Mich App 274; 641 NW2d 868

(2002). In Koester, a negligence action, this Court

considered whether a dog owner could recover “dam-

ages of emotional distress and loss of companionship” of

his pet dog, which is considered personal property

under Michigan jurisprudence. Koester, 244 Mich App

at 176. Declining to permit such recovery, the Court

stated:

There is no Michigan precedent that permits the recov-

ery of damages for emotional injuries allegedly suffered as

a consequence of property damage. Plaintiff requests that

we allow such recovery when a pet is the property that is

damaged, arguing that pets have evolved in our modern

society to a status that is not consistent with their charac-

terization as “chattel.” In essence, plaintiff requests that

we create for pet owners an independent cause of action for

loss of companionship when a pet is negligently injured by

a veterinarian. Although this Court is sympathetic to

plaintiff’s position, we defer to the Legislature to create

such a remedy. [Id.]

In Bernhardt, the plaintiff’s claims arose out of the loss

of two pieces of jewelry that were of great sentimental

value to her. Bernhardt, 249 Mich App at 276-277. The

plaintiff filed suit against the defendant hospital, which

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she alleged was responsible for the loss, claiming con-

version, breach of bailment, and intentional infliction of

emotional distress and, in the alternative, negligence

and replevin. Id. at 277. This Court held that the

plaintiff’s “claims of emotional distress in connection

with her tort claims of conversion and negligence” were

insufficient to bring the “case within the jurisdiction of

the circuit court,” noting that the plaintiff had not

specifically alleged emotional distress damages in con-

nection with her conversion and negligence claims, as

well as the Koester Court’s statement that “there is no

Michigan precedent that permits the recovery of dam-

ages for emotional injuries allegedly suffered as a con-

sequence of property damage.” Id.at279&n1.

Defendant acknowledges that both Koester and Bern-

hardt involved the loss or destruction of personal prop-

erty, whereas, this case involves the destruction of real

property. Nonetheless, defendant asserts that those hold-

ings should be applied in this case. We disagree. As

indicated, the general rule in Michigan is that noneco-

nomic damages are recoverable in tort claims, Phillips,

448 Mich at 251 n 32, and “in a tort action, the tort-feasor

is liable for all injuries resulting directly from [the]

wrongful act, whether foreseeable or not, provided the

damages are the legal and natural consequences of the

wrongful act, and...might reasonably have been antici-

pated,” Sutter, 377 Mich at 86. While this Court has

carved out an exception to that general rule in regard to

emotional damages for the loss or destruction of personal

property (which is considered to be a replaceable chattel

despite any emotional attachment)

, we decline to extend

Random House Webster’s College Dictionary (2001) defines “chattel”

as “a movable article of personal property” and “any tangible property

other than land and buildings.” Merriam-Webster’s Collegiate Dictionary

54 294 M

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42 [Aug

that exception to real property. Defendant has failed to

cite any authority requiring such a holding.

Furthermore, contrary to defendant’s assertion, the

law has historically distinguished between personal

property and real property. For example, liability for

trespass to land does not require any actual showing of

damage. “ ‘Any intentional and unprivileged entry on

land is a trespass without a showing of damage, since

those who own land have an exclusive right to its

use[.]’ ” Adkins v Thomas Solvent Co, 440 Mich 293,

304; 487 NW2d 715 (1992), quoting Prosser & Keeton,

Torts (5th ed), § 87, p 623. Liability for a trespass to

chattel, however, generally requires some showing of

damage. Section 218 of the Restatement Second of

Torts provides:

One who commits a trespass to a chattel is subject to

liability to the possessor of the chattel if, but only if,

(a) he dispossesses the other of the chattel, or

(b) the chattel is impaired as to its condition, quality, or

value, or

a substantial time, or

(d) bodily harm is caused to the possessor, or harm is

caused to some person or thing in which the possessor has

a legally protected interest. [1 Restatement Torts, 2d,

§ 218, p 420.]

Comment (e) to that section clarifies the distinction

between real and personal property in tort law:

The interest of a possessor of a chattel in its inviolabil-

ity, unlike the similar interest of a possessor of land, is not

given legal protection by an action for nominal damages for

(11th ed) defines “chattel” as “an item of tangible movable or immovable

property except real estate and things (as buildings) connected with real

property[.]”

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harmless intermeddlings with the chattel. In order that an

actor who interferes with another’s chattel may be liable,

his conduct must affect some other and more important

interest of the possessor. Therefore, one who intentionally

intermeddles with another’s chattel is subject to liability

only if his intermeddling is harmful to the possessor’s

materially valuable interest in the physical condition, qual-

ity, or value of the chattel, or if the possessor is deprived of

the use of the chattel for a substantial time, or some other

legally protected interest of the possessor is affected as

stated in Clause (c). Sufficient legal protection of the

possessor’s interest in the mere inviolability of his chattel

is afforded by his privilege to use reasonable force to

protect his possession against even harmless interference.

[Id. at 421-422.]

Similarly, our Supreme Court has held that breach of

contract for the sale of real property necessarily in-

cludes the right to specific performance because land is

presumed to have “a unique and peculiar value....”In

re Egbert R Smith Trust, 480 Mich 19, 26; 745 NW2d

754 (2008); see also Kent v Bell, 374 Mich 646, 651; 132

NW2d 601 (1965) (A

DAMS

, J.). Moreover, in holding that

the plaintiff in Kent could require specific performance

of a contract involving the upkeep of a house in ex-

change for a later sale or devise of the house to the

plaintiff, see Kent, 374 Mich at 648-649 (K

ELLY

,J.,

dissenting), the Court specifically noted that, with

respect to the home, “[t]here is also involved a house

having a particular value to [the plaintiff]. Conceivably,

it could not be duplicated by an award of money.” Id.at

651 (A

DAMS

, J.).

Authors and poets alike wax philosophical about the

unique value of a home, which often provides as much,

if not more, in the way of feelings of emotion and

memories as it does shelter. A home’s unique and

particular value has been acknowledged by our Su-

preme Court, and damage to or destruction of one’s

56 294 M

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home or land would, in most cases, produce emotional

suffering. Additionally, such a loss causes the stress and

upheaval of displacement and the need to seek alterna-

tive shelter, which does not result from the loss or

destruction of personal property. Dealing with the con-

sequences caused by the loss of or severe damage to

one’s home and relocating or rebuilding also often

involves considerable time and energy in addition to

stress. Put simply, there are numerous and substantial

differences between real and personal property. As

such, we decline to extend the noneconomic damages

carveout that this Court has applied to personal prop-

erty.

Defendant also argues that plaintiff’s claim for non-

economic damages is barred because she did not suffer

fear of physical harm and was not present when the fuel

oil was pumped into her house. Defendant relies on our

Supreme Court’s holding in Daley v LaCroix, 384 Mich

4; 179 NW2d 390 (1970), to support this claim. In Daley,

the defendant’s reckless driving caused his car to strike

a utility pole, cutting electric lines connected to the

plaintiffs’ home and causing an explosion that resulted

in property damage. Id. at 6-7. The plaintiffs “claimed,

in addition to property damage, that Estelle Daley

suffered traumatic neurosis, emotional disturbance and

nervous upset, and that Timothy Daley suffered emo-

tional disturbance and nervousness as a result of the

explosion and the attendant circumstances.” Id.at7.

The Supreme Court allowed the plaintiffs to recover not

only for their property damage, but also for any physical

injury produced as a result of emotional distress proxi-

mately caused by the defendant’s negligent conduct. Id.

at 15-17. In so holding, the Court overruled the common-

law “impact rule,” which required that a plaintiff suffer

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a physical impact in order to recover damages for

negligently caused emotional distress. Id. at 11-12. The

Court explained:

We hold that where a definite and objective physical

injury is produced as a result of emotional distress proxi-

mately caused by defendant’s negligent conduct, the plain-

tiff in a properly pleaded and proved action may recover in

damages for such physical consequences to himself not-

withstanding the absence of any physical impact upon

plaintiff at the time of the mental shock.

***

Further, plaintiff has the burden of proof that the

physical harm or illness is the natural result of the fright

proximately caused by defendant’s conduct. In other

words, men of ordinary experience and judgment must be

able to conclude, after sufficient testimony has been given

to enable them to form an intelligent opinion, that the

physical harm complained of is a natural consequence of

the alleged emotional disturbance which in turn is proxi-

mately caused by defendant’s conduct. [Id. at 12-14 (cita-

tions omitted).]

Contrary to defendant’s argument, the Daley Court’s

holding does not require that a plaintiff suffer emo-

tional distress as a result of fear of physical impact. Nor

did the Court hold that a plaintiff must witness or

contemporaneously experience the underlying wrong.

Rather, all that is required under Daley is that a

plaintiff’s physical injury be a natural result of emo-

tional distress proximately caused by the defendant’s

negligence.

Defendant argues that even if plaintiff could recover

noneconomic damages stemming from the destruction

of her real property, she would be required, under

Daley, to show that her mental anguish manifested

itself physically. Defendant’s reasoning blurs the line

58 294 M

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42 [Aug

between damages for emotional distress and mental

anguish. Although emotional distress and mental an-

guish are related, they are distinct and separate mea-

sures of damages. McClain, 256 Mich App at 498, 500.

Emotional distress requires a manifestation of physical

injury as a result of mental distress. Id. at 498; Ledbet-

ter v Brown City Savings Bank, 141 Mich App 692, 703;

368 NW2d 257 (1985). “Mental anguish damages, how-

ever, are not so circumscribed. A plaintiff is not limited

to recovery for physical pain and anguish, but, rather, is

entitled to damages for mental pain and anxiety which

naturally flow from the injury, i.e., for shame, mortifi-

cation, and humiliation.” Ledbetter, 141 Mich App at

703; see also McClain, 256 Mich App at 497-499 (dis-

cussing at length our Supreme Court’s holding in Daley

and the difference between recovery for emotional

distress without accompanying physical injury or any

other independent basis for tort liability and recovery

for mental anguish and other damages flowing from an

underlying injury). As stated by this Court in McClain,

recovery for emotional distress differs from recovery for

mental anguish, and various specific nonpecuniary, per-

sonal damages beyond the ambit of emotional distress are

available to a plaintiff who can establish proof of such

damages. Patek, McLain, Granzotto & Stockmeyer, 1

Michigan Law of Damages and Other Remedies (ICLE),

§ 2.15, p 2-15 and § 2.17, p 2-16. These include: physical

pain and suffering; mental anguish; fright and shock;

denial of social pleasure and enjoyment; embarrassment,

humiliation, or mortification; or other appropriate dam-

ages. Id.; see also SJI2d 50.02 and comment. [McClain, 256

Mich App at 498-499.]

Therefore, to the extent that plaintiff sought recovery

for mental anguish, she was not required to show that

it manifested itself physically.

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Noneconomic damages are generally recoverable in

tort claims, and we are not convinced that noneconomic

damages stemming from damage to or destruction of

real property must or should be excepted from that

general rule.

We conclude that in negligence actions, a

plaintiff may recover mental anguish damages natu-

rally flowing from the damage to or destruction of real

property.

IV. PLAINTIFF’S EVIDENCE OF NONECONOMIC DAMAGES

Defendant next argues that even if it was permissible

for plaintiff to seek mental anguish damages in this

case, she failed to present sufficient evidence of her

claim for damages; thus, the trial court erred by deny-

ing defendant’s motions for summary disposition and

JNOV.

We disagree.

Defendant asserts that it was entitled to summary

disposition on the issue of noneconomic damages and

JNOV because plaintiff “failed to sustain her burden of

proving...that a definite and objective physical injury

[was] produced as a result of emotional distress proxi-

mately caused by defendant’s negligent conduct.” As

indicated, however, it is unnecessary to demonstrate a

See, as persuasive authority, Stevens v City of Flint, unpublished

opinion per curiam of the Court of Appeals, issued December 20, 2007

(Docket No. 272329), and Bielat v South Macomb Disposal Auth, unpub-

lished opinion per curiam of the Court of Appeals, issued November 9,

2004 (Docket No. 249147).

Defendant argues that it was entitled to summary disposition of

plaintiff’s claim for noneconomic damages under the alternative theories

of trespass and nuisance. We need not address this argument, however, as

plaintiff withdrew her trespass and nuisance claims before trial.

Defendant cursorily stated in its brief on appeal that the trial court

also erred by denying its motion for a new trial. Because defendant failed

to present any legal analysis in support of its statement, we decline to

address the issue.

60 294 M

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42 [Aug

physically manifested injury in order to recover mental

anguish damages and various other “nonpecuniary,

personal damages beyond the ambit of emotional dis-

tress,” including “physical pain and suffering;...fright

and shock; denial of social pleasure and enjoyment;

embarrassment, humiliation, or mortification; or other

appropriate damages.” McClain, 256 Mich App at 498-

499; see also Ledbetter, 141 Mich App at 703. In order

for a plaintiff to recover mental anguish damages, those

damages must “naturally flow from the injury,” Ledbet-

ter, 141 Mich App at 703, in this case, the destruction of

plaintiff’s real property. Mental anguish encompasses,

among other things, “shame, mortification, mental pain

and anxiety, annoyance, discomfiture, and humilia-

tion.” McClain, 256 Mich App at 503.

In its denial of defendant’s motion for summary

disposition on the issue of noneconomic damages, the

trial court specifically stated that plaintiff was permit-

ted to seek damages for mental anguish. The court also

made the general statement that plaintiff could “seek to

recover non-economic damages as typically allowed in

connection with [a] claim for negligence.” Our review of

a trial court’s decision on a motion for summary dispo-

sition is limited to the evidence that had been presented

to the court at the time the motion was decided.

Innovative Adult Foster Care, Inc v Ragin, 285 Mich

App 466, 475-476; 776 NW2d 398 (2009). At the time of

her motion, plaintiff presented the court with deposi-

tion testimony in which she testified that she was

emotionally attached to her home and the land on

which it was built; she had intended to live in the home

indefinitely; and she sought treatment from her doctor

after her basement was filled with fuel oil. Plaintiff

initially visited her doctor because whenever she talked

about the incident, she cried and became upset; her

decision-making was affected both at home and at work;

2011] P

RICE V

IGH

OINTE

she had difficulty sleeping; and she had trouble focus-

ing. Plaintiff’s doctor prescribed an antidepressant

medication, which plaintiff took for approximately four

months. At her deposition, plaintiff presented the

records from her doctor’s visit, which stated: “The

patient is anxious, fearful, [and] in depressed

moods....”Considering this evidence, the trial court

did not err by determining that a genuine issue of

material fact existed in regard to plaintiff’s claim for

noneconomic damages. See USA Cash #1, 285 Mich

App at 266 (stating that summary disposition under

MCR 2.116(C)(10) is appropriate “only when the evi-

dence fails to establish a genuine issue regarding any

material fact”). Plaintiff presented evidence that as a

result of the destruction of her home, she suffered

mental anguish, specifically mental pain and anxiety,

and discomfiture, i.e., disconcertion, frustration of

hopes or plans. See McClain, 256 Mich App at 503;

Random House Webster’s College Dictionary (2005), p

352 (defining “discomfiture”). She also presented evi-

dence of fright, shock, and denial of the enjoyment of

her property. See McClain, 256 Mich App at 498-499.

Additionally, we find that the trial court did not err

by denying defendant’s motion for JNOV. Viewing the

evidence presented at trial in the light most favorable to

plaintiff, there was sufficient evidence of noneconomic

damages to present the issue to the jury. See Heaton v

Benton Constr Co, 286 Mich App 528, 532; 780 NW2d

618 (2009) (stating that JNOV should be granted only

when there is insufficient evidence to create an issue for

the jury); Livonia Bldg Materials, 276 Mich App at

517-518 (stating that in reviewing a trial court’s deci-

sion on a motion for JNOV, this Court must review the

evidence in the light most favorable to the nonmoving

party to determine whether a question of fact existed).

Before the presentation of proofs at trial, the trial court

62 294 M

ICH

42 [Aug

ruled that plaintiff was entitled to seek noneconomic

damages for mental anguish, fright, shock, denial of

social pleasures or enjoyments, and any embarrassment

she suffered as a result of defendant’s negligence.

During direct examination of plaintiff, the following

exchange occurred:

Q. Becky, when you witnessed this happening at the

time, what were you feeling emotionally?

A. I think mostly it was the fact that it was gone, that

there just wasn’t any coming back at this point, you know,

to your house. The home I brought my kids to is gone; all

of the hard work was for naught, and I really just didn’t

know what I was going to do at that point.

Q. Were you still living at your parents’ home?

A. Yes; yes, I was.

Q. Did it become necessary for you to seek the help of

your doctor?

A. I did; I did, yes.

Q. Tell us about that, please.

A. Fairly shortly after it happened, I--obviously, you are

very upset and everything, but it was--it was just hard to

sleep. I was having trouble focusing on, you know, at work

and at home, and I knew I needed to focus as much as I

could, because I knew I was going to have decisions to make

and I was just having a hard time with all of it.

Q. Who did you see?

A. I went to my doctor.

***

Q. Okay. And when you met with her, did you share with

her the troubles you were having?

A. I did, I did.

Q. And did she counsel you?

2011] P

RICE V

IGH

OINTE

A. Well, she--yes, she did. She recommended--and she

recommended a medication that might help me kind of--an

anti-depressant to help maybe get through the rough

times.

Q. She put you on Paxil, did she not?

A. She did.

Q. And did you have refills for that, as well?

A. I did, I did. There was I think two; there was two

initially, and then when I went back with her, maybe two

months later, I had a regular physical, and we talked about

it again, and I was given a couple of more refills.

***

Q. How did that work out?

A. Well, first of all, it’s rather embarrassing to be

50-some years old and have to move back in with Mom and

Dad.

My parents are collectors of certain antiques, and it’s

very crowded; it’s very crowded. The extra bedroom had--

the extra bedroom I was using had like six china cabinets,

a dresser, and I don’t know, a couple of sewing machines in

it and it was just--it was too close; it wasn’t mine; it wasn’t

my home. I had been on my own for 30-some years. It just

wasn’t mine.

***

Q. The new house, if you will, is it the same as the old

home you had?

A. No.

Q. Why not?

A. I guess it just doesn’t have the personality to it. It

doesn’t have your kids’ memories to it. It doesn’t have the

appreciation of what you go through and do. So much of it

seems to have a different type of a quality, characteristics,

value to it. It’s just more of a home when you do it all

yourself. It just was home.

64 294 M

ICH

42 [Aug

Plaintiff also presented the same medical records she

had presented at her deposition, which indicated that

she had been anxious, fearful, and sufferied depressed

moods. At the close of proofs, the court instructed the

jury, in accordance with SJI2d 50.02, that it could award

plaintiff “non-economic damages, for things such as

mental anguish and fright and shock, and denial of

social pleasures and enjoyment in the use of the former

home and embarrassment or humiliation.” After the

jury returned its verdict in favor of plaintiff, defendant

moved for JNOV, which the court denied. The evidence

plaintiff presented at trial—specifically her testimony

that she felt a great sense of personal loss after the

destruction of her home; that she was embarrassed

about being forced to move into her parents’ house as

an adult; that she suffered from anxiety, sleeplessness,

and inability to concentrate because of the stress of the

situation; and that she took an antidepressant over the

course of several months—was sufficient to submit the

issue of noneconomic damages to the jury.

V. DEFENDANT’S MOTION FOR REMITTITUR

Defendant finally argues that the trial court abused

its discretion by denying its motion for remittitur.

Again, we disagree.

Remittitur is provided for under MCR 2.611(E)(1),

which states:

If the court finds that the only error in the trial is the

inadequacy or excessiveness of the verdict, it may deny a

motion for new trial on condition that within 14 days the

nonmoving party consent in writing to the entry of judg-

ment in an amount found by the court to be the lowest (if

the verdict was inadequate) or highest (if the verdict was

excessive) amount the evidence will support.

2011] P

RICE V

IGH

OINTE

In determining whether remittitur is appropriate, a

trial court must view the evidence in the light most

favorable to the nonmoving party and decide whether

the jury award was supported by the evidence. Taylor v

Kent Radiology, PC, 286 Mich App 490, 522; 780 NW2d

900 (2009). The trial court’s determination must be

based on objective criteria relating to the actual conduct

of the trial or the evidence presented. Palenkas v

Beaumont Hosp, 432 Mich 527, 532; 443 NW2d 354

(1989). Such objective criteria include (1) whether the

verdict was the result of improper methods, prejudice,

passion, partiality, sympathy, corruption, or mistake of

law or fact, (2) whether it was within the limits of what

reasonable minds would deem to be just compensation

for the injury inflicted, and (3) whether the amount

actually awarded is comparable to other awards in

similar cases. Diamond v Witherspoon, 265 Mich App

673, 694; 696 NW2d 770 (2005). As noted, the trial

court is in the best position to evaluate the credibility of

the witnesses and make an informed decision on the

issue of remittitur, having witnessed the testimony,

evidence, and the jury’s reactions. Unibar Maintenance

Serv, 283 Mich App at 629-630. Therefore, we must give

the trial court’s decision deference. Id.

Defendant argues that the amount of noneconomic

damages awarded plaintiff did not fall within the limits

of what reasonable minds would deem just compensa-

tion for the mental anguish she suffered and, therefore,

that the verdict must have been the product of sympa-

thy. But defendant has not alleged that there was

misconduct at trial, that the jury was improperly in-

structed, or that the jury allowed sympathy to sway its

decision. The trial court instructed the jury that eco-

nomic damages were not at issue and that in consider-

ing the issue of noneconomic damages, its decision must

not be influenced by sympathy, bias, or prejudice. Juries

66 294 M

ICH

42 [Aug

are presumed to understand and follow their instruc-

tions. Dep’t of Transp v Haggerty Corridor Partners Ltd

Partnership, 473 Mich 124, 178-179; 700 NW2d 380

(2005) (M

ARKMAN

, J., dissenting). Further, the trial

court was in the best position to observe the jury’s

reaction to plaintiff’s testimony and the other evidence

presented. See Unibar Maintenance Serv, 283 Mich App

at 629-630.

Defendant attempts to minimize the emotional dam-

age suffered by plaintiff, stating that the only evidence

she presented in support of her claim for noneconomic

damages was her own “testimony, without elaboration,

that she was ‘upset’ and ‘embarrassed’ as a result of the

destruction of her home and that her family doctor

prescribed an antidepressant for ‘possible’ depression

that had apparently resolved a month later.” Contrary

to defendant’s assertion, however, plaintiff described in

detail how she suffered emotionally and mentally after

losing her home. She lost the home that she had helped

to build, where she made memories with her children,

and where she intended to continue living indefinitely.

As a result of that loss and the stress of relocating, she

suffered embarrassment while living in her parents’

house, sleeplessness, and inability to focus, as well as

fear, anxiety, and depressed moods, for which she took

an antidepressant medication over the course of several

months.

It is difficult to determine what amount of damages

would justly compensate plaintiff for her suffering. In

Paulitch v Detroit Edison Co, 208 Mich App 656, 657,

659; 528 NW2d 200 (1995), this Court affirmed a

$359,000 jury verdict in an age-discrimination case.

“Because evidence of emotional damage was presented

at trial, and the award was comparable to awards in

similar cases, the trial court properly deferred to the

2011] P

RICE V

IGH

OINTE

jury and denied defendant’s motions” for remittitur or

a new trial. Id. at 659. The evidence of the “plaintiff’s

emotional damages, include[ed] his testimony that his

relationships with his wife and friends suffered” as a

result of the discrimination. Id.InHoward v Canteen

Corp, 192 Mich App 427, 429, 435-436; 481 NW2d 718

(1991), overruled on other grounds by Rafferty v Marko-

vitz, 461 Mich 265; 602 NW2d 367 (1999), this Court

affirmed the trial court’s denial of remittitur of a

$200,000 award for mental anguish, emotional distress,

and humiliation in a gender-based-discrimination case.

In affirming the trial court, this Court explained:

The testimony indicated that defendants’ actions left

plaintiff sad and depressed and that she is still dealing with

her problems today. She is behind in paying her bills and

suffers from a medical problem that she believes stems

from her work situation. The evidence to support these

results is found in the harassment and discrimination

inflicted upon her for a lengthy period of time, despite her

complaints to [a manager]. Under these circumstances, we

do not believe the award was excessive, nor do we believe,

giving deference to the trial court that personally observed

the witnesses and heard the testimony, that the trial court

abused its discretion in denying defendants’ motion for

remittitur. [Id. at 436 (citations omitted).]

Admittedly, both Howard and Paulitch involved dis-

crimination actions and are not completely analogous to

this case, which is a negligence action involving prop-

erty damage. Defendant points to a Louisiana Supreme

Court case, Williams v City of Baton Rouge, 731 So 2d

240, 252 (La, 1999), in which the court “reviewed cases

awarding damages for mental anguish when property

has been damaged” and found that the awards ranged

“from $35,000 to $100.” The highest amount of dam-

ages the court awarded to an individual plaintiff in that

case was $35,000. Id. We note, however, that in Will-

68 294 M

ICH

42 [Aug

iams, none of the plaintiffs’ homes had been damaged

or destroyed as is the case here. See id. at 243, 251-252.

Moreover, the disparity between $35,000 and $100 only

demonstrates that determining a just amount of mental

anguish damages is a fact-intensive analysis, which

inevitably varies from case to case.

Although it may be difficult to determine what

amount of noneconomic damages would justly compen-

sate plaintiff, and an award of $100,000 may seem high

in comparison to some other awards in cases involving

property damage, “[t]he law does not provide any exact

standard or yardstick for measuring damages of this

type.” Howard v Burton, 338 Mich 178, 186; 61 NW2d

77 (1953). Therefore, the “determination must neces-

sarily be left to the good sense and sound judgment of

the jury in their view of the evidence.” Sebring v

Mawby, 251 Mich 628, 629; 232 NW 194 (1930). Given

the evidence presented by plaintiff and the lack of

support for defendant’s claim that the jury was improp-

erly influenced by sympathy, we cannot conclude that

the trial court abused its discretion by denying defen-

dant’s motion for remittitur. We give deference to the

trial court’s decision.

Affirmed.

ORT

OOD

and S

TEPHENS

, JJ., concurred with

ECKERING

,P.J.

2011] P

RICE V

IGH

OINTE

PEOPLE v COHEN

Docket No. 298076. Submitted July 12, 2011, at Detroit. Decided July 19,

2011. Approved for publication August 30, 2011, at 9:00 a.m.

Clarence H. Cohen, charged with possession with intent to deliver

less than 50 grams of cocaine, moved to quash the information

in the Oakland Circuit Court. Officers from the Pontiac Police

Department had arrested Cohen after they observed cocaine

paraphernalia sitting between him and another man in a vehicle

in which Cohen was a passenger. When Cohen was subsequently

placed into a jail holding cell, he unsuccessfully attempted to

discard a small plastic bag containing crack cocaine. Cohen was

initially charged with possession with intent to deliver less than

50 grams of cocaine in connection with the cocaine that he had

attempted to discard, and with possession of less than 25 grams

of cocaine in connection with cocaine residue found on the drug

paraphernalia. Following the preliminary examination, the 50th

District Court, Ronda M. Fowlkes Gross, J., dismissed the

simple possession charge, concluding that there was insufficient

evidence that the drug paraphernalia belonged to Cohen. Cohen

then moved in the circuit court to quash the information,

arguing in light of the district court’s decision to dismiss the

simple possession charge, that the police had lacked probable

cause to arrest him and, therefore, the evidence discovered as a

result of that arrest—the small bag containing crack cocaine—

had to be suppressed. The circuit court, Daniel P. O’Brien, J.,

agreed that given the absence of probable cause to bind Cohen

over on the simple possession charge, the police had lacked

probable cause for his arrest and that the evidence discovered as

a result of the arrest had to be suppressed. Accordingly, the

circuit court dismissed the charge of possession with intent to

deliver cocaine. The prosecution appealed.

The Court of Appeals held:

1. The probable cause required to bind over a defendant at a

preliminary examination is different from the probable cause

required to arrest a defendant. Probable cause to arrest exists

when the facts and circumstances within an officer’s knowledge

and of which he or she has reasonably trustworthy information are

70 294 M

ICH

70 [Aug

sufficient in themselves to warrant a person of reasonable caution

in the belief that an offense has been or is being committed; this is

a practical, nontechnical conception judged from the totality of the

circumstances before the arresting officers. The purpose of a

preliminary examination is to determine whether there is probable

cause to believe that a crime was committed and that the defen-

dant committed it. To meet his or her burden of proof at the

preliminary examination, the prosecutor must present enough

evidence on each element of the charged offense to lead a person of

ordinary prudence and caution to conscientiously entertain a

reasonable belief of the defendant’s guilt. The arrest standard

considers only the probability that the person committed the crime

as established at the time of the arrest, while the preliminary

hearing considers both the probability at the time of the prelimi-

nary hearing that the person committed the crime and the

probability that the government will be able to establish guilt at

trial.

2. Possession of a controlled substance is dominion or right of

control over the drug with knowledge of its presence and character.

In this case, the drug paraphernalia was in clear view and reach of

both occupants of the vehicle, and thus the arresting officers had

probable cause to believe that the occupants jointly possessed the

drug paraphernalia, justifying Cohen’s arrest and rendering ad-

missible the evidence that was discovered after Cohen’s arrest.

The circuit court erred by suppressing evidence gathered following

a constitutionally valid arrest solely because the district court

concluded that it lacked probable cause to bind Cohen over for trial

on the charge for which he was originally arrested.

Reversed and remanded.

RIMINAL

AW —

ROBABLE

AUSE TO

RREST —

ROBABLE

AUSE TO

IND

VER

The probable cause required to bind over a defendant at a prelimi-

nary examination is different from the probable cause required to

arrest a defendant; the arrest standard considers only the prob-

ability that the person committed the crime as established at the

time of the arrest, while the preliminary hearing considers both

that probability at the time of the preliminary hearing and the

probability that the government will be able to establish guilt at

trial.

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Jessica R. Cooper, Prosecuting Attor-

ney, and John S. Pallas and Matthew A. Fillmore,

Assistant Prosecuting Attorneys, for the people.

2011] P

EOPLE V

OHEN

Before: T

ALBOT

,P.J., and H

OEKSTRA

and G

LEICHER

,JJ.

URIAM

. The police arrested defendant after

observing cocaine paraphernalia resting near him on

the center console of a vehicle in which he was a

passenger. At the police station, defendant unsuccess-

fully attempted to discard a small plastic bag contain-

ing a large rock of crack cocaine. The prosecutor

charged defendant with possession of both the co-

caine residue coating the drug paraphernalia and the

later-discovered rock cocaine. At the preliminary

examination, the district court dismissed the residue-

related charge, finding insufficient evidence linking

defendant to the paraphernalia. In light of that

ruling, the circuit court invalidated defendant’s ar-

rest, concluding that the police lacked probable cause

to take defendant into custody. Invoking the “fruit of

the poisonous tree” doctrine, the circuit court then

suppressed the evidence that defendant possessed the

rock cocaine. Because distinctly different probable-

cause standards distinguish the arrest and bind-over

decisions, we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

On the night in question, defendant rode as a pas-

senger in a vehicle driven by a man named Lee Pondex-

ter. The police stopped the vehicle because the license

plate was registered to a different vehicle. In plain

sight, an officer observed a clear plastic measuring cup

on the center console between defendant and Pondexter

containing a digital scale and a brown bag. White

residue on the cup and scale field-tested positive for

cocaine. Defendant and Pondexter were arrested for

joint constructive possession of the drug paraphernalia

and residue and were transported to the police station.

72 294 M

ICH

70 [Aug

At the station, an officer placed defendant in a holding

cell. As defendant stepped into the cell, he removed a

small plastic bag containing a rock of suspected cocaine

from his person and threw it into the toilet. The officer

stopped defendant from flushing the toilet and recov-

ered the bag. The rock weighed just over 25 grams and

field-tested positive for cocaine.

The prosecutor charged defendant with possession

with intent to deliver less than 50 grams of cocaine in

connection with the rock he threw into the jail-cell

toilet, MCL 333.7401(2)(a)(iv), and possession of less

than 25 grams of cocaine, MCL 333.7403(2)(a)(v), in

connection with the cocaine residue on the scale. At the

preliminary examination, the district court bound de-

fendant over for trial on the possession with intent to

deliver charge. The district court dismissed the simple

possession charge because it was not convinced that the

measuring cup and its contents belonged to defendant,

and thought it was more likely that they belonged to

Pondexter.

Once in circuit court, defendant filed a motion to

quash. Defendant did not challenge the district

court’s decision to bind him over on the charge of

possession with intent to deliver. Rather, he con-

tended that the district court’s reason for dismissing

the simple possession charge established that the

police lacked probable cause to arrest him. Defendant

argued that because the arrest was illegal, the evi-

dence discovered as a result of that arrest had to be

suppressed. The circuit court agreed that given the

absence of probable cause to bind defendant over on

the simple possession charge, the police had lacked

probable cause for his arrest. Accordingly, the circuit

court dismissed the remaining charge of possession

with intent to deliver cocaine.

2011] P

EOPLE V

OHEN

II. ANALYSIS OF THE ISSUE

In relation to a circuit court motion to quash the

information, we generally review for an abuse of discre-

tion the district court’s initial decision to bind the

defendant over for trial. People v Perkins, 468 Mich 448,

452; 662 NW2d 727 (2003). In this case, however,

defendant actually sought the suppression of evidence.

This Court reviews a trial court’s factual findings at a

suppression hearing for clear error, and the court’s

ultimate ruling de novo. People v Davis, 250 Mich App

357, 362; 649 NW2d 94 (2002). The application of the

exclusionary rule is a question of law that is reviewed de

novo. People v Custer, 465 Mich 319, 326; 630 NW2d 870

(2001) (opinion by M

ARKMAN

, J.).

We disagree with the circuit court’s conclusion that

probable cause to support an arrest is equivalent to

probable cause to bind a defendant over for trial. “The

purpose of a preliminary examination is to determine

whether there is probable cause to believe that a crime

was committed and whether there is probable cause to

believe that the defendant committed it.” Perkins, 468

Mich at 452, citing MCR 6.110. To meet its burden of

proof at the preliminary examination, the prosecution

must present “enough evidence on each element of the

charged offense to lead a person of ordinary prudence

and caution to conscientiously entertain a reasonable

belief of [the defendant’s] guilt.” Perkins, 468 Mich at

452 (quotation marks and citations omitted) (alteration

in original).

Probable cause to effectuate an arrest is gauged

differently. A police officer may arrest a person without

a warrant if he or she has reasonable cause to believe

that a felony has been committed and that the particu-

lar person committed it. MCL 764.15(1)(d). “In order to

lawfully arrest a person without a warrant, a police

74 294 M

ICH

70 [Aug

officer must possess information demonstrating prob-

able cause to believe that an offense has occurred and

that the defendant committed it.” People v Reese, 281

Mich App 290, 294-295; 761 NW2d 405 (2008) (quota-

tion marks and citation omitted). “Probable cause to

arrest exists where the facts and circumstances within

an officer’s knowledge and of which he has reasonably

trustworthy information are sufficient in themselves to

warrant a man of reasonable caution in the belief that

an offense has been or is being committed.” People v

Champion, 452 Mich 92, 115; 549 NW2d 849 (1996).

This probable cause standard “is a practical, nontech-

nical conception” judged from the totality of the circum-

stances before the arresting officers. Maryland v Prin-

gle, 540 US 366, 370; 124 S Ct 795; 157 L Ed 2d 769

(2003) (quotation marks and citations omitted).

Professors Wayne LaFave and Jerold Israel have

explained the difference between probable cause for an

arrest and a bindover as follows:

The use of the Fourth Amendment arrest standard in

describing probable cause at a preliminary hearing indicates

only the requisite degree of probability....Thearrest stan-

dard, directed primarily at police, is expressed in terms of

“the factual and practical distinctions of everyday life in

which reasonable and prudent men, not legal technicians

act,” while the charging decision being reviewed...is...the

responsibility of “legal technicians,” the attorneys in the

prosecutor’s office. Under the arrest standard, considerable

uncertainty must be tolerated on occasion because of the need

to allow the police to take affirmative action in ambiguous

circumstances, but no comparable exigencies are presented as

the charging decision is made. Thus, a police officer may

make an arrest where the circumstances suggest that the

property possessed by the suspect may have been stolen, but

the prosecutor ordinarily has no justification for proceeding

to charge without first determining that a theft actually did

occur.

2011] P

EOPLE V

OHEN

. . . [I]t has been stated both that the probable cause

required for a bindover is “greater” than that required for

an arrest and that it imposes a different standard of

proof....[T]he arrest standard looks only to the probabil-

ity that the person committed the crime as established at

the time of the arrest, while the preliminary hearing looks

both to that probability at the time of the preliminary

hearing and to the probability that the government will be

able to establish guilt at trial. [LaFave & Israel, Criminal

Procedure (2d ed, 1992), § 14.3, pp 668-669 (citations

omitted).]

As stated by the Seventh Circuit Court of Appeals,

“[B]ecause the probable cause determination after a

preliminary hearing is made during a legal proceeding

incorporating all the safeguards of evidentiary rulings

as in a trial, it is an entirely separate legal proceeding

distinct from the probable cause judgment to arrest

made by the police officer in the field[.]” Williams v

Kobel, 789 F2d 463, 468 (CA 7, 1986).

In this case, probable cause supported the officers’

decision to arrest defendant in light of the discovery

of the digital scale and cocaine residue inside the

vehicle. Generally, possession of any amount of co-

caine is a felony. MCL 333.7403(2)(a). “Possession is a

term that signifies dominion or right of control over

the drug with knowledge of its presence and charac-

ter.” People v Nunez, 242 Mich App 610, 615; 619

NW2d 550 (2000) (quotation marks and citation omit-

ted). The defendant need not own or have actual

physical possession of the substance to be found guilty

of possession; constructive possession is sufficient.

People v Wolfe, 440 Mich 508, 519-520; 489 NW2d 748

(1992). Constructive possession, which may be sole or

joint, is the right to exercise control over the drug

coupled with knowledge of its presence. Id. at 520.

“Constructive possession exists when the totality of the

76 294 M

ICH

70 [Aug

circumstances indicates a sufficient nexus between the

defendant and the controlled substance.” People v

Meshell, 265 Mich App 616, 622; 696 NW2d 754 (2005).

Close proximity to contraband in plain view is evidence

of possession. Wolfe, 440 Mich at 521.

The arresting officers found trace amounts of cocaine

on drug paraphernalia in a vehicle occupied only by

defendant and Pondexter. The paraphernalia lay on the

center console between defendant and Pondexter, in

clear view and reach of both. From a practical stand-

point, this evidence gave the arresting officers probable

cause to believe that defendant and Pondexter jointly

possessed the paraphernalia. Thus, sufficient informa-

tion justified defendant’s arrest, rendering admissible

the evidence discovered thereafter. We express no opin-

ion regarding whether the district court correctly dis-

missed the simple possession charge for lack of probable

cause to proceed to trial. In any event, the circuit court

erred by suppressing evidence gathered following a

constitutionally valid arrest solely because the district

court concluded that it lacked probable cause to bind

defendant over for trial on the charge for which he was

originally arrested.

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

ALBOT

,P.J., and H

OEKSTRA

and G

LEICHER

, JJ., con-

curred.

2011] P

EOPLE V

OHEN

PEOPLE v REED

Docket No. 296686. Submitted May 12, 2011, at Lansing. Decided August

30, 2011, at 9:05 a.m.

Brian B. Reed was charged in the Montmorency Circuit Court with

manufacturing less than 5 kilograms or less than 20 plants of

marijuana, MCL 333.7401(d)(iii). Reed unsuccessfully approached

two separate physicians at his regular health clinic about registering

to use marijuana to reduce his chronic back pain as allowed by the

Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq.

However, marijuana was discovered growing at Reed’s residence on

August 25, 2009, by the Huron Undercover Narcotics Team, after

which he obtained a physician’s statement certifying his marijuana

use for a medical purpose on September 16, 2009, and his registry

identification card from the Department of Community Health on

October 6, 2009. Reed was arrested on October 16, 2009. He moved

for dismissal of the charge, asserting the affirmative defense provided

by § 8(a) of the MMMA, MCL 333.26428(a), and arguing that under

§ 4(a) of the act, MCL 333.26424(a), he was immune from prosecu-

tion. After a hearing, the court, Michael G. Mack, J., denied the

motion. Reed appealed by leave granted.

The Court of Appeals held:

1. A person facing prosecution for violating Michigan’s controlled

substances laws may assert an affirmative defense under MCL

333.26428(a) if a physician has stated that, in the physician’s profes-

sional opinion, the patient is likely to receive therapeutic or palliative

benefit from the medical use of marijuana to treat or alleviate the

patient’s serious or debilitating medical condition or symptoms of the

patient’s serious or debilitating medical condition. The physician’s

statement must have been made before the person’s arrest and before

the purportedly illegal conduct. Reed was barred from asserting the

§ 8(a) affirmative defense at trial because it was undisputed that he

did not obtain the required physician’s statement until after the

police discovered his marijuana.

2. MCL 333.26424(a) provides that certain persons are im-

mune from prosecution for violating Michigan’s controlled sub-

stances laws if using marijuana for medical purposes. The person

must have been issued and possess a registry identification card

78 294 M

ICH

78 [Aug

before the purportedly illegal conduct is committed in order for the

person to be immune from arrest, prosecution, or penalty under

§ 4(a). Reed did not have a registry identification card at the time

the alleged crime occurred and could therefore not rely on MCL

333.26424 to claim immunity from prosecution.

Affirmed and remanded for further proceedings.

1. C

ONTROLLED

UBSTANCES —

ARIJUANA —

EDICAL

ARIJUANA —

RIMINAL

EFENSES —

FFIRMATIVE

EFENSE

A person facing prosecution for violating Michigan’s controlled

substances laws may assert an affirmative defense under MCL

333.26428(a) of the Michigan Medical Marihuana Act if a physi-

cian has stated that, in the physician’s professional opinion, the

patient is likely to receive therapeutic or palliative benefit from

the medical use of marijuana to treat or alleviate the patient’s

serious or debilitating medical condition or symptoms of the

patient’s serious or debilitating medical condition; to successfully

assert this affirmative defense, the physician’s statement must

have been made before the person’s arrest and before the illegal

conduct.

2. C

ONTROLLED

UBSTANCES —

ARIJUANA —

EDICAL

ARIJUANA —

RIMINAL

EFENSES —

MMUNITY

ROM

ROSECUTION

A person facing prosecution for violating Michigan’s controlled

substances laws for using marijuana for medical purposes may

assert immunity from prosecution under MCL 333.26424 of the

Michigan Medical Marihuana Act, but the person must have been

issued and possess a registry identification card before the illegal

conduct is committed to be immune from arrest, prosecution, or

penalty.

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Terrie J. Case, Prosecuting Attorney,

and Melissa M. Goodrich, Assistant Prosecuting Attor-

ney, for the people.

Bolser and Kundinger, PLC (by Benjamin T. Bolser),

for defendant.

Before: O

WENS

,P.J., and O’C

ONNELL

and M

ETER

,JJ.

ETER

, J. Defendant appeals by leave granted the

denial of his motion to dismiss a charge of manufactur-

2011] P

EOPLE V

EED

ing less than 5 kilograms or less than 20 plants of

marijuana,

MCL 333.7401(2)(d)(iii). We affirm.

This case requires us, to consider in part, the appli-

cability of the affirmative-defense portion of the Michi-

gan Medical Marihuana Act (MMMA), MCL 333.26421

et seq. See MCL 333.26428(a). Defendant’s marijuana

plants were discovered by the police before he received

physician authorization to possess them, but he was not

arrested until after he had obtained the physician

authorization, as well as a registry identification card

from the Michigan Department of Community Health

(MDCH). See MCL 333.26424. We held in People v

Kolanek, 291 Mich App 227, 235-236; 804 NW2d 870

(2011), that a physician’s statement must be obtained

before the defendant’s arrest in order to establish the

affirmative defense set forth in§8oftheMMMA, MCL

333.26428. We now extend that ruling and hold that,

the physician’s statement must also occur before the

commission of the purported offense in order to estab-

lish the affirmative defense. We further hold that de-

fendant has no immunity from prosecution under MCL

333.26424 because defendant did not possess a registry

identification card at the time of the purported offense.

The facts in this case are undisputed. Defendant

suffers from chronic back pain due to a degenerative

disk disease for which he underwent surgery more than

a decade ago. After the enactment of the MMMA,

defendant began to inquire about the possibility of

becoming registered to use marijuana to help relieve his

pain. He began at Thunder Bay Community Health

Service, the clinic that he generally attended for treat-

ment of his condition. However, two separate doctors

Although the statutory provisions at issue refer to “marihuana,” this

Court uses the more common spelling “marijuana” in its opinions except

in quotations.

80 294 M

ICH

78 [Aug

there told him that they would not be issuing certifica-

tions for medical use of marijuana because they re-

ceived federal funding. Defendant then searched for

another place to receive certification but had not for-

mally consulted with another doctor before his mari-

juana was discovered.

On August 25, 2009, the Huron Undercover Narcot-

ics Team (HUNT), during an aerial surveillance, spot-

ted six marijuana plants growing at defendant’s resi-

dence. At that time, defendant had not received a

physician’s statement certifying his marijuana use for a

medical purpose. See MCL 333.26428(a)(1). On Septem-

ber 16, 2009, defendant received a doctor’s certification

to use marijuana medically, and he received his registry

certification card from MDCH on October 6, 2009. Ten

days later, on October 16, he was arrested and charged

with the manufacture of marijuana.

Defendant filed a motion to dismiss the charge under

MCL 333.26428(b), arguing that the trial court was

obligated to dismiss the case because defendant satis-

fied all three elements of the affirmative defense. Addi-

tionally, defendant argued that he should have been

immune from arrest under MCL 333.26424(a). The trial

court denied the motion and we granted defendant’s

application for leave to appeal.

This case involves statutory interpretation, which we

review de novo. People v Redden, 290 Mich App 65, 76;

799 NW2d 184 (2010). “Generally, the primary objective

in construing a statute is to ascertain and give effect to

the Legislature’s intent.” Id. The MMMA was enacted

by an initiative adopted by the voters. “The words of an

initiative law are given their ordinary and customary

meaning as would have been understood by the voters.”

Welch Foods, Inc v Attorney General, 213 Mich App 459,

461; 540 NW2d 693 (1995). Moreover, “[t]his Court

2011] P

EOPLE V

EED

must avoid a construction that would render any part of

a statute surplusage or nugatory, and ‘[w]e must con-

sider both the plain meaning of the critical words or

phrases as well as their placement and purpose in the

statutory scheme.’ ” Redden, 290 Mich App at 76-77,

quoting People v Williams, 268 Mich App 416, 425; 707

NW2d 624 (2005).

Defendant first argues that he may use MCL

333.26428(a) as an affirmative defense to the charge of

manufacturing marijuana. MCL 333.26428(a) states:

Except as provided in [MCL 333.26427], a patient and a

patient’s primary caregiver, if any, may assert the medical

purpose for using marihuana as a defense to any prosecu-

tion involving marihuana, and this defense shall be pre-

sumed valid where the evidence shows that:

(1) A physician has stated that, in the physician’s

professional opinion, after having completed a full assess-

ment of the patient’s medical history and current medical

condition made in the course of a bona fide physician-

patient relationship, the patient is likely to receive thera-

peutic or palliative benefit from the medical use of mari-

huana to treat or alleviate the patient’s serious or

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition;

(2) The patient and the patient’s primary caregiver, if

any, were collectively in possession of a quantity of mari-

huana that was not more than was reasonably necessary to

ensure the uninterrupted availability of marihuana for the

purpose of treating or alleviating the patient’s serious or

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition; and

(3) The patient and the patient’s primary caregiver, if

any, were engaged in the acquisition, possession, cultiva-

tion, manufacture, use, delivery, transfer, or transportation

of marihuana or paraphernalia relating to the use of

marihuana to treat or alleviate the patient’s serious or

82 294 M

ICH

78 [Aug

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition.

[

]

Defendant argues that under our recent decision in

Kolanek, he could satisfy the requirement that “[a]

physician has stated that... the patient is likely to

receive therapeutic or palliative benefit from the medi-

cal use of marihuana,” see MCL 333.26428(a)(1), by

obtaining this statement at any time before arrest.

(Emphasis added.)

In Kolanek, 291 Mich App at 229, the defendant was

arrested after a search of his vehicle revealed eight

marijuana cigarettes. He filed a motion to dismiss

under MCL 333.26428(b), claiming the § 8 affirmative

defense because he used the marijuana to treat the pain

associated with his Lyme disease. Id. at 231-232. The

defendant’s doctor had authorized the defendant’s

marijuana use after his arrest and testified at trial that

the amount the defendant had in his possession was

reasonable. Id. at 230. In affirming the trial court’s

denial of the defendant’s motion to dismiss, this Court

held that “the language in MCL 333.26428(a)(1), ‘[a]

physician has stated,’ requires that a physician’s state-

ment of the medical benefit of marijuana be made prior

to arrest.” Id. at 230. Defendant argues that this

language validates, for purposes of the § 8 affirmative

defense, his doctor’s approval, which occurred on Sep-

tember 16, 2009, one month before his arrest. We

disagree.

In Kolanek, the defendant was charged the day after

his marijuana was seized. Id. at 229. It appears that the

seizure and the arrest were simultaneous; indeed, the

Kolanek Court gave no indication that it was consider-

ing a situation in which the crime and arrest were not

Defendant’s compliance with MCL 333.26428(a)(2) and (3) are not at

issue here.

2011] P

EOPLE V

EED

contemporaneous. Accordingly, we cannot place sub-

stantial emphasis on the Kolanek Court’s use of the

term “arrest” in describing its holding. Moreover, the

Kolanek Court stated: “[I]t is reasonable to assume that

the affirmative defense created in § 8 was intended to

protect those who actually had a medical basis for

marijuana use recognized by a physician before the use

began and was not intended to afford defendants an

after-the-fact exemption for otherwise illegal activities.”

Id. at 238 (emphasis added). The Court, in making this

statement, was clearly focusing on a defendant’s pur-

portedly illegal conduct, not on the defendant’s arrest.

We note that statutes should be construed so as to avoid

absurd results. McAuley v Gen Motors Corp, 457 Mich

513, 518; 578 NW2d 282 (1998), abrogated in part on

other grounds by Rafferty v Markovitz, 461 Mich 265,

273 n 6; 602 NW2d 367 (1999). It would be absurd if it

were possible to assert the § 8 affirmative defense by

obtaining a physician’s statement after the crime had

been committed but before an arrest has been made.

The law would provide less incentive to obtain a quali-

fying physician’s statement if it were construed in the

manner defendant suggests. This interpretation would

also place too much emphasis on the police decision to

arrest a suspect rather than the illegal conduct under-

taken by that suspect.

The Oregon Court of Appeals, interpreting that

state’s affirmative defense contained in Or Rev Stat

475.319(1), agrees. That court stated: “[W]e conclude

that, in order for defendant to have availed himself of

the ‘medical marijuana’ affirmative defense in [Or Rev

In effect, defendant’s argument would have us apply the law in a

“reverse ex post facto” manner, allowing one who has committed a crime

to avoid punishment by taking action to obtain a physician’s statement

after the illegality of his actions has been discovered.

84 294 M

ICH

78 [Aug

Stat] 475.319(1), his attending physician’s advice re-

garding the use of medical marijuana had to occur

before the incident for which he was arrested.” Oregon v

Root, 202 Or App 491, 497; 123 P3d 281, 284 (2005)

(emphasis added). We note that Kolanek also relied on

Root. See Kolanek, 291 Mich App at 238.

In light of these considerations, we hold that for a § 8

affirmative defense to apply, the physician’s statement

must occur before the purportedly illegal conduct.

Generally, a defendant is not barred from asserting a

§ 8 defense at trial simply because his pretrial motion to

dismiss was denied. See the concurring opinion of Judge

M. J. K

ELLY

in People v Anderson, 293 Mich App 33, 63;

809 NW2d 176 (2011).

See also Kolanek, 291 Mich App

at 241-242 (“Because the statute does not provide that

the failure to bring, or to win, a pretrial motion to

dismiss deprives the defendant of the statutory defense

before the fact-finder, defendant’s failure to provide

sufficient proofs pursuant to his motion to dismiss does

not bar him from asserting the § 8 defense at trial nor

from submitting additional proofs in support of the

defense at that time.”). However, the Anderson Court

also held that, when there is no issue of fact to present

to a jury that might establish a § 8 defense, “a trial

court might be warranted in barring a defendant from

presenting evidence or arguing at trial that he or she is

entitled to the defense stated in § 8(a).” Anderson, 293

Mich App at 64-65. The relevant standard is whether,

“given the undisputed evidence, no reasonable jury

could find that the elements of the § 8 defense had been

met.” Id.at65.

The majority opinion in Anderson stated that it adopted part II(C)(3)

of Judge K

ELLY

’s concurring opinion, the portion at issue here. Anderson,

293 Mich App at 35.

2011] P

EOPLE V

EED

In Anderson, it was undisputed that the defendant

possessed more than 12 marijuana plants and that some

of them were not kept in an enclosed, locked facility. Id.

No reasonable jury could have found, given this fact and

the applicable law, that the defendant was entitled to

assert the § 8 defense. Id. Thus, the Court held that

“[t]he trial court did not err when it precluded Ander-

son from presenting a § 8 defense at trial.” Id. Here, it

is undisputed that defendant did not obtain the re-

quired physician’s statement until after his marijuana

had been discovered by HUNT. No reasonable jury

could find that defendant is entitled to the § 8 defense,

and thus defendant is barred from asserting it at trial.

Defendant relies on § 4 of the MMMA, MCL

333.26424, to support his additional argument that he

should have been immune from prosecution. The stat-

ute states, in relevant part:

A qualifying patient who has been issued and possesses

a registry identification card shall not be subject to arrest,

prosecution, or penalty in any manner, or denied any right

or privilege, including but not limited to civil penalty or

disciplinary action by a business or occupational or profes-

sional licensing board or bureau, for the medical use of

marihuana in accordance with this act, provided that the

qualifying patient possesses an amount of marihuana that

does not exceed 2.5 ounces of usable marihuana, and, if the

qualifying patient has not specified that a primary car-

egiver will be allowed under state law to cultivate mari-

huana for the qualifying patient, 12 marihuana plants kept

in an enclosed, locked facility. Any incidental amount of

seeds, stalks, and unusable roots shall also be allowed

under state law and shall not be included in this amount.

[MCL 333.26424(a).]

Defendant’s argument fails because at the time of the

offense he did not possess a registry identification card.

The statute states that “[a] qualifying patient who has

86 294 M

ICH

78 [Aug

been issued and possesses a registry identification card

shall not be subject to arrest, prosecution, or penal-

ty...forthemedical use of marihuana in accordance

with this act....” MCL 333.26424(a) (emphasis

added). The statute ties the prior issuance and pos-

session of a registry identification card to the medical

use

of marijuana, and much of the same reasoning that

applies to the timing under § 8 applies equally to the

timing regarding registry identification cards. See, e.g.,

Kolanek, 291 Mich App at 238-239; see also the prior

analysis in this opinion. Defendant did not have the

card at the applicable time and therefore is not immune

from arrest, prosecution, or penalty.

Affirmed and remanded for further proceedings. We

do not retain jurisdiction.

WENS

,P.J., and O’C

ONNELL

, J., concurred with

ETER

,J.

We note that the definition of “medical use” under the MMMA

includes “cultivation.” MCL 333.26423(e).

2011] P

EOPLE V

EED

HALL v STARK REAGAN, PC

Docket No. 294647. Submitted January 4, 2011, at Detroit. Decided

September 13, 2011, at 9:00 a.m. Reversed in part and vacated in

part, 493 Mich 903.

Patrick C. Hall and Ava Ortner brought an action in the Oakland

Circuit Court against Stark Reagan, P.C., and several present and

former shareholders in the law firm, alleging age discrimination.

Plaintiffs served as shareholders in the firm from 2004 until their

termination in 2009. Defendants moved for summary disposition,

contending that the arbitration provision in the firm’s sharehold-

ers’ agreement barred the action and challenging plaintiffs’ capac-

ity to sue under the Civil Rights Act (CRA), MCL 37.2101 et seq.

The court, John James McDonald, J., agreed that arbitration was

required and granted summary disposition in favor of defendants

pursuant to MCR 2.116(C)(7). Plaintiffs appealed.

The Court of Appeals held:

1. An issue is arbitrable when (1) there is an arbitration

agreement in a contract between the parties, (2) the disputed issue

is on its face or arguably within the contract’s arbitration clause,

and (3) the dispute is not expressly exempted from arbitration by

the terms of the contract. Any doubts concerning the scope of

arbitrable issues should be resolved in favor of arbitration, but the

presumption of arbitrability cannot compel the arbitration of

issues beyond those identified in the parties’ contract. The arbi-

tration clause at issue in this case stated that it applied to any

“dispute regarding interpretation or enforcement of any of the

parties’ rights or obligations” under the shareholders’ agreement.

The agreement embodied the parties’ intentions concerning the

transfer, purchase, and sale of Stark Reagan stock. Thus, the

arbitration language evinced an intent to commit to arbitration

those claims stemming from the interpretation or enforcement of

matters related to the management of corporate stock. Plaintiffs’

age-discrimination claims fell outside the arbitration provision

because they bore no significant relationship to the agreement, the

agreement did not refer to any issues even tangentially related to

the age-discrimination claims, and the agreement provided no

evidence pertinent to the age-discrimination claims. Contrary to

the circuit court’s conclusion, Stark Reagan’s law office staff

88 294 M

ICH

88 [Sept

manual, which prohibited discrimination on the basis of age, did

not become part of the shareholders’ agreement in light of the fact

that the agreement, which was entered after the office manual was

created, made no mention of the office manual and contained a

clause stating that the shareholders’ agreement constituted the

entire agreement between the parties.

2. Under MCL 37.2202(1)(a), an employer shall not discrimi-

nate against an individual with respect to employment because of

age or other protected status. An employer can be held liable under

the CRA for discriminatory acts against a nonemployee if it can be

demonstrated that the employer affected or controlled a term,

condition, or privilege of employment. Defendants indisputably

fell within the CRA’s definition of “employer.” And plaintiffs

asserted an adverse employment action and presented evidence

that defendants’ actions affected or controlled a term, condition, or

privilege of their employment. Accordingly, contrary to defen-

dants’ assertion, even if plaintiffs could not be characterized as

Stark Reagan employees, their pleadings stated a claim under the

CRA.

Reversed and remanded.

K. F. K

ELLY

,P.J., dissenting, disputed the majority’s application

of the relevant law to the facts of the case. The shareholders’

agreement specified the procedures and requirements for the

involuntary termination of a shareholder’s interest in the firm and

the process by which the shares could be redeemed. The agreement

also stated that it was subject to and governed by Michigan law,

which prohibits discrimination on the basis of age, MCL

37.2202(1)(a). Plaintiffs contested the involuntary redemption of

their shares in the law firm, an act that was allegedly the result of

unlawful discrimination. Plaintiffs’ claims could not be main-

tained without reference to the shareholders’ agreement and were

inextricably linked with that agreement. Therefore, plaintiffs’

claims were within the agreement’s arbitration clause and subject

to arbitration.

1. A

RBITRATION —

RBITRABILITY —

RESUMPTION OF

RBITRABILITY —

IMITATION

OF THE

RESUMPTION OF

RBITRABILITY

An issue is arbitrable when (1) there is an arbitration agreement in

a contract between the parties, (2) the disputed issue is on its face

or arguably within the contract’s arbitration clause, and (3) the

dispute is not expressly exempted from arbitration by the terms of

the contract; any doubts concerning the scope of arbitrable issues

should be resolved in favor of arbitration, but the presumption of

2011] H

ALL V

TARK

EAGAN

,PC 89

arbitrability cannot compel the arbitration of issues beyond those

identified in the parties’ contract.

2. C

IVIL

IGHTS —

IVIL

IGHTS

CT —

ISCRIMINATION —

IABILITY

ISCRIMINATION

GAINST

ONEMPLOYEES

Under the Civil Rights Act (CRA), an employer shall not discrimi-

nate against an individual with respect to employment because of

age or other protected status; an employer can be held liable under

the CRA for discriminatory acts against a nonemployee if it can be

demonstrated that the employer affected or controlled a term,

condition, or privilege of employment (MCL 37.2202[1][a]).

Law Offices of Kathleen L. Bogas, PLC (by Kathleen

L. Bogas and Charlotte Croson), for Patrick C. Hall.

Pitt, McGehee, Palmer, Rivers & Golden (by Robert W.

Palmer and Beth Rivers) for Ava Ortner.

Kienbaum Opperwall Hardy & Pelton, P.L.C. (by

Thomas G. Kienbaum and Jay C. Boger), for Stark

Reagan, P.C., Peter L. Arvant, Kenneth M. Boyer, Will-

iam D. Girardot, Christopher E. LeVasseur, R. Keith

Stark, and Michael H. Whiting.

Ahern Fleury (by Joseph A. Ahern) for Joseph A.

Ahern and Jeffrey J. Fleury.

Before: K. F. K

ELLY

,P.J., and G

LEICHER

and S

TEPHENS

JJ.

LEICHER

, J. The individual parties to this appeal are

present and former shareholders in a law firm, defendant

Stark Reagan, P.C. Plaintiffs Patrick C. Hall and Ava

Ortner filed a complaint against Stark Reagan and the

individual defendants, asserting that age discrimination

motivated defendants’ decision to terminate Hall’s and

Ortner’s shareholder status. The circuit court granted

defendants summary disposition pursuant to MCR

2.116(C)(7) and ordered the case to proceed to arbitration.

We reverse and remand for further proceedings.

90 294 M

ICH

88 [Sept

PINION OF THE

OURT

I. UNDERLYING FACTS AND PROCEEDINGS

In 2003, Stark Reagan hired Hall and Ortner as

associate attorneys. On January 1, 2004, they became

shareholders in the firm, joining seven of the eight

attorneys named as individual defendants in this case.

Upon their election as shareholders in the firm, Hall

and Ortner signed a shareholders’ agreement that

included an arbitration clause.

At a January 8, 2009 shareholders’ meeting, defen-

dant R. Keith Stark proposed the termination of

Hall’s and Ortner’s interests in Stark Reagan. Ac-

cording to affidavits submitted by Hall and Ortner,

Stark explained that their terminations were needed

“to change the ‘demographics’ of the firm.” The

affidavits attested that defendant Joseph Ahern ex-

pressed that “the demographics of the firm was [sic]

a problem because older attorneys lose their client

bases,” and that two younger attorneys “ ‘had more

potential’ and their practices would be going up while

ours would be going down.” At the request of Hall and

Ortner, the meeting adjourned until the next week.

During the continued meeting on January 12, 2009,

Ortner and Hall announced that the termination of

their employment “constituted illegal age discrimina-

tion,” and advised the other shareholders that they

had retained legal counsel. On February 13, 2009,

defendants Ahern and Jeffrey Fleury resigned as

shareholders of Stark Reagan, effective immediately.

The remaining shareholders voted to redeem the

stock held by Hall and Ortner, terminating their

employment effective March 1, 2009.

In 2005, attorney Daniel E. Chapman was also a shareholder in Stark

Reagan. He is not a defendant in this action. Defendant Jeffrey J. Fleury

became a shareholder at some point after 2005.

2011] H

ALL V

TARK

EAGAN

,PC 91

PINION OF THE

OURT

In April 2009, Hall and Ortner filed a three-count

complaint in the Oakland Circuit Court alleging that

defendants violated the Civil Rights Act (CRA), MCL

37.2101 et seq., by discriminating against them on the

basis of their ages, unlawfully retaliating against them

when they retained counsel, and conspiring to violate

the CRA. Defendants filed a motion for summary dis-

position under MCR 2.116(C)(7), contending that a

binding arbitration agreement barred the lawsuit. De-

fendants also moved for summary disposition under

MCR 2.116(C)(5), challenging the capacity of Hall and

Ortner to sue under the CRA. The circuit court entered

an opinion and order granting defendants’ subrule

(C)(7) motion, reasoning as follows:

The Court finds that the arbitration [sic] is applicable to

the case here in all respects. Michigan public policy favors

arbitration to resolve disputes. Rembert v. Ryan’s Family

Steak Houses, Inc, 235 Mich.App. 118, 127-128 [596 NW2d

208] (1999). Further, the Shareholder Agreement governs

disputes for the shareholders; additionally the Law Office

Staff Manual can be said to have become part of the Share-

holder Agreement for those who executed that Agreement.

As to the issue of whether Plaintiffs are eligible to bring

claims under the Elliott Larsen Civil Rights Act as employ-

ees of the law firm, the Court finds that issue is also subject

to the arbitration clause....

Accordingly, Defendants’ motion for summary disposi-

tion pursuant to MCR 2.116(C)(7) is granted and this case

is ordered to arbitration. In light of this decision, the Court

finds that the other issues raised by defendants are moot

here and can be raised before the Arbitrator.

_____________________________________________________

Although not binding on this Court, the holding in

Panepucci v Honigman Miller Schwartz & Cohen [sic]

LLP[,] 281 Fed App[x] 482...(C.A.6...[2008]) is infor-

mative.

_____________________________________________________

92 294 M

ICH

88 [Sept

PINION OF THE

OURT

II. ANALYSIS

A. GOVERNING PRINCIPLES

Hall and Ortner maintain that the arbitration clause

in the shareholder agreement does not apply to this

dispute arising under the CRA. We review de novo a

circuit court’s determination that an issue is subject to

arbitration. In re Nestorovski Estate, 283 Mich App 177,

184; 769 NW2d 720 (2009).

A three-part test applies for ascertaining the arbitrabil-

ity of a particular issue: 1) is there an arbitration agree-

ment in a contract between the parties; 2) is the disputed

issue on its face or arguably within the contract’s arbitra-

tion clause; and 3) is the dispute expressly exempted from

arbitration by the terms of the contract. [Id. at 202

(quotation marks and citation omitted).]

“Arbitration is a matter of contract....” City of

Ferndale v Florence Cement Co, 269 Mich App 452, 460;

712 NW2d 522 (2006). Under the federal arbitration act

(FAA), 9 USC 1 et seq., courts considering whether the

parties agreed to arbitrate a certain matter “should

apply ordinary state-law principles that govern the

formation of contracts.” First Options of Chicago, Inc v

Kaplan, 514 US 938, 944; 115 S Ct 1920; 131 L Ed 2d

985 (1995).

The United States Supreme Court recently

emphasized that although federal policy favors arbitra-

tion, “we have never held that this policy overrides the

principle that a court may submit to arbitration only

those disputes...that the parties have agreed to sub-

mit. Nor have we held that courts may use policy

considerations as a substitute for party agreement.”

Granite Rock Co v Int’l Brotherhood of Teamsters, 561

US ___, ___; 130 S Ct 2847, 2859; 177 L Ed 2d 567 (2010)

The parties agree that the FAA applies in this case because Stark

Reagan attorneys practice law outside Michigan.

2011] H

ALL V

TARK

EAGAN

,PC 93

PINION OF THE

OURT

(quotation marks and citations omitted). “[W]hen par-

ties have freely established their mutual rights and

obligations through the formation of unambiguous con-

tracts, the law requires this Court to enforce the terms

and conditions contained in such contracts, if the con-

tract is not contrary to public policy.” Bloomfield Es-

tates Improvement Ass’n, Inc v City of Birmingham, 479

Mich 206, 213; 737 NW2d 670 (2007) (quotation marks

and citation omitted). “ ‘The cardinal rule in the inter-

pretation of contracts is to ascertain the intention of the

parties.’ ” Goodwin, Inc v Orson E Coe Pontiac, Inc, 392

Mich 195, 209; 220 NW2d 664 (1974), quoting McIntosh

v Groomes, 227 Mich 215, 218; 198 NW 954 (1924).

“Where the language of a contract is clear and unam-

biguous, the intent of the parties will be ascertained

according to its plain sense and meaning.” Haywood v

Fowler, 190 Mich App 253, 258; 475 NW2d 458 (1991).

B. ARBITRABILITY OF HALL’S AND ORTNER’S CLAIMS

We first consider whether the arbitration clause

language of the shareholders’ agreement governs this

action brought under the CRA. Article 14 of the share-

holders’ agreement, entitled “Miscellaneous Provi-

sions,” sets forth, in relevant part, the following with

respect to arbitration:

Any dispute regarding interpretation or enforcement of

any of the parties’ rights or obligations hereunder shall be

resolved by binding arbitration according to the rules of the

American Arbitration Association in the County of Oak-

land, State of Michigan. The parties hereby irrevocably

submit to personal jurisdiction of any State court in the

County of Oakland or the Federal court in the County of

Wayne, State of Michigan, in any action or other legal

proceeding to enforce any award made by the arbitra-

tors....

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. . . Proceeding to arbitration and obtaining an award

thereunder shall be a condition precedent to the bringing

or maintaining of any action in any court with respect to

any dispute arising under this Agreement, except for the

institution of a civil action of a summary nature where the

relief sought is predicated on there being no dispute with

respect to any fact.

The arbitration clause clearly and unambiguously

declares that it applies to “[a]ny dispute regarding

interpretation or enforcement of any of the parties’

rights or obligations hereunder....”Bythese terms,

the arbitration clause limits its scope to disputes

relating to the “interpretation or enforcement” of the

“rights or obligations” described within the share-

holders’ agreement.

The shareholders’ agreement embodies the parties’

intentions concerning the transfer, purchase, and sale

of Stark Reagan stock. The 14 articles contained in the

shareholders’ agreement address: (1) general restric-

tions on the disposition of stock, (2) the manner in

which shareholders may gain admission to the corpora-

tion through a vote of other shareholders, (3) the

necessary conditions precedent to the sale, transfer, or

other disposition of stock, (4) the purchase and sale of

stock in the event of a shareholder’s inability to practice

law because of a disability, (5) the purchase of stock in

the event of the death of a shareholder, (6) the redemp-

tion of stock in the event of a shareholder’s retirement

or “Of Counsel” status, (7) involuntary transfers of

stock, including but not limited to “transfers pursuant

to operation of law, a divorce proceeding, to judicial

process and to proceedings in bankruptcy or receiver-

ship,” (8) the sale of stock on termination of employ-

ment, (9) additional events triggering a stock redemp-

tion or purchase, (10) the procedural requirements

applicable to the purchase of the stock of a selling

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shareholder, (11) stock prices and other terms, includ-

ing the repayment of loans and capital contributions,

(12) stock redemption or purchase payment terms, and

(13) shareholder guaranties. Article 14 consists of the

arbitration terms and other general, standard contrac-

tual clauses.

The shareholders’ agreement makes no mention of

any relationships between the parties other than those

created or impacted by the disposition of stock. The

“rights or obligations” addressed in the shareholders’

agreement involve only various forms of entitlement to

stock ownership and restrictions attending stock trans-

fer. The parties’ chosen arbitration language clearly and

unambiguously evinces an intent to commit to an

arbitral forum only those claims stemming from the

“interpretation or enforcement” of matters directly

related to the management of corporate stock.

Our review of Hall’s and Ortner’s complaint reveals

no allegation that defendants violated a term of the

shareholders’ agreement or disregarded the procedures

for stock redemptions. Hall and Ortner have set forth

no assertions touching on the price of their stock,

payment terms, the manner of stock disposition, or any

other right or obligation described in the shareholders’

agreement. Simply put, Hall and Ortner have not

advanced any claim or argument germane to the subject

matter of the shareholders’ agreement, or having its

genesis in that agreement. To include an age-

discrimination action within the scope of an arbitration

provision expressly limited to the “interpretation or

enforcement” of “rights or obligations” concerning cor-

porate stock would expand the clause’s reach beyond

that intended by the parties. Consequently, Hall’s and

Ortner’s age-discrimination claims fall outside the am-

bit of the arbitration provision.

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Defendants insist that the following “Introductory

Statements” of the shareholders’ agreement compel

arbitration of Hall’s and Ortner’s CRA claims:

B. The parties hereto believe it is desirable and in their

mutual best interest to control the ownership of the Stock

of the Corporation and to also insure the continuous,

harmonious and effective management of the affairs, poli-

cies, and operations of the Corporation; as such, this

Agreement is also intended to be construed as an agree-

ment entered into pursuant to §488 of the Michigan

Business Corporations Act (as may be amended from time

to time) and shall supercede and control any and all

provisions of the Corporation’s By Laws and Articles of

Incorporation that may now or hereafter be in conflict

herewith.

C. The parties desire to enter into this Agreement in

order, among other things, to establish and implement a

structure for the orderly management and operation of

the Corporation, to restrict the transfer of all shares of

the Stock of the Corporation so that the Stock will not

pass into the control of persons whose interests, might

be incompatible with the interests of the Corporation

and the Shareholders, and to provide a market for the

sale of shares upon death or disability of a Shareholder

and upon the occurrence of certain other events; all as

hereinafter provided.

Despite the references to “the continuous, harmonious

and effective management of the affairs, policies, and

operations of the Corporation” and “the orderly man-

agement and operation of the Corporation,” we find

nothing in the contract that addresses corporate man-

agement or operations beyond the realm of stock-

related issues. Moreover, the subsequent arbitration

clause specifically confines its reach to the resolution of

disputes “regarding interpretation or enforcement of

any of the parties’ rights or obligations hereunder....”

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The “rights or obligations” delineated in the contract

bear no relationship to Hall’s and Ortner’s age-

discrimination claims.

In reaching this result, we have remained mindful

that under both Michigan and federal law, “any doubts

concerning the scope of arbitrable issues should be

resolved in favor of arbitration....” Moses H Cone

Mem Hosp v Mercury Constr Corp, 460 US 1, 24-25; 103

S Ct 927; 74 L Ed 2d 765 (1983); see also Amtower v

William C Roney & Co (On Remand), 232 Mich App

226, 234-235; 590 NW2d 580 (1998). But the presump-

tion of arbitrability cannot compel the arbitration of

issues beyond those identified in the parties’ written

contract. Amtower, 232 Mich App at 235. Our construc-

tion of the contractual language employed by the in-

stant parties is consistent with the decisions of other

courts that have interpreted similar contractual lan-

guage. In Seifert v US Home Corp, 750 So 2d 633,

636-638 (Fla, 1999), the Florida Supreme Court sur-

We respectfully disagree with the dissent’s contention that because

Michigan law governs the shareholders’ agreement, we must read into

the contract the statutory prohibition of age discrimination, MCL

37.2202(1)(a). We decline to extend by implication the issues the parties

unambiguously agreed to arbitrate. To do so would sweep away the

bedrock principle that by their chosen words, the contracting parties

determined the scope of their arbitration agreement. That the drafters

and signers of the shareholders’ agreement are lawyers buttresses our

conclusion. We further observe that these parties are not ordinary

lawyers, but specialists in employment law. They must have known that

in Rembert a conflict panel of this Court held that arbitration of statutory

discrimination claims required “[c]lear notice to the employee that he is

waiving the right to adjudicate discrimination claims in a judicial forum

and opting instead to arbitrate these claims.” Rembert, 235 Mich App at

161, citing Renny v Port Huron Hosp, 427 Mich 415, 437; 398 NW2d 327

(1986). By its terms, the arbitration clause in the shareholders’ agree-

ment confines its reach to “[a]ny dispute regarding interpretation or

enforcement of any of the parties’ rights or obligations hereunder....”

The dissent’s interpretation of this clause eliminates the word “hereun-

der,” a judicial amendment we are unwilling to endorse.

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veyed state and federal caselaw interpreting arbitration

provisions calling for the arbitration of disputes “aris-

ing out of” and “relating to” the contract. The parties in

Seifert entered into a contract for the construction of a

house that called for the arbitration of “[a]ny contro-

versy or claim arising under or related to this Agree-

ment or to the Property....” Id. at 635. After the

plaintiffs moved in, the air conditioning system “picked

up the carbon monoxide emissions” from a car running

in the garage, “and distributed them into the house,

killing Mr. Seifert.” Id. The plaintiffs sued the defen-

dant for wrongful death, asserting tort claims for strict

liability and negligence. Id.

The Florida Supreme Court observed that although

some courts have characterized arbitration clauses re-

ferring to disputes arising “out of” or “under” the

contract as restrictive, the phrase “arising out of or

relating to” the contract is often construed as broaden-

ing the scope of an arbitration clause. Id. at 637.

Nevertheless, the court explained that “even in con-

tracts containing broad arbitration provisions, the de-

termination of whether a particular claim must be

submitted to arbitration necessarily depends on the

existence of some nexus between the dispute and the

contract containing the arbitration clause.” Id. at 638.

Citing American Recovery Corp v Computerized Ther-

mal Imaging, Inc, 96 F3d 88, 93-94 (CA 4, 1996), the

court in Seifert announced that “the test for determin-

ing arbitrability of a particular claim under a broad

arbitration provision is whether a ‘significant relation-

ship’ exists between the claim and the agreement

containing the arbitration clause, regardless of the legal

label attached to the dispute (i.e., tort or breach of

contract).” Id. at 637-638. In Seifert, the court found

that the facts and allegations pleaded in the complaint

asserted negligence in the home’s construction, rather

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than the violation of any duty set forth in the contract.

Id. at 640. The court held that the plaintiffs’ tort

averments did not bear a “significant relationship to

the contract,” and discerned no intent on the part of the

contracting parties to arbitrate tort claims that

emerged after the completion of construction. Id.at

641-642.

If Seifert’s “significant relationship” test represents

an approach less deferential to a presumption of arbi-

trability, the standard adopted in Fazio v Lehman Bros,

Inc, 340 F3d 386 (CA 6, 2003), exemplifies the other end

of the spectrum. In Fazio, the plaintiffs’ broker misap-

propriated millions of dollars from his clients. Id.at

391. The plaintiffs sued the brokerage firms that had

employed the broker, and the defendants moved to

compel arbitration on the basis of a contract term

calling for arbitration of “ ‘[a]ny controversy arising out

of or relating to any of my accounts, to transactions

with you for me, or to this or any other agreement or

the construction, performance or breach thereof....’”

Id. at 391-392. The United States Court of Appeals for

the Sixth Circuit held that the plaintiffs’ fraud claims

fell within the scope of the arbitration agreement

because “[t]he lawsuit by necessity must describe why

[the broker] was in control of the plaintiffs’ money....

The plaintiffs therefore cannot maintain their action

without reference to the account agreements, and ac-

cordingly, this action is covered by the arbitration

clauses.” Id. at 395. In a subsequent case, the Sixth

Circuit described the Fazio standard as “whether an

action could be maintained without reference to the

contract or relationship at issue. If it could, it is likely

outside the scope of the arbitration agreement.” NCR

Corp v Korala Assoc, Ltd, 512 F3d 807, 813 (CA 6, 2008)

(quotation marks and citation omitted).

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Other federal circuit courts of appeal have more

directly addressed the language employed in the instant

parties’ shareholders’ agreement. For example, in

Mediterranean Enterprises, Inc v Ssangyong Corp, 708

F2d 1458, 1464 (CA 9, 1983), the United States Court of

Appeals for the Ninth Circuit distinguished the phrase

“arising hereunder” from contractual provisions calling

for the arbitration of disputes “arising out of and

relating to” the contract. “We have no difficulty finding

that ‘arising hereunder’ is intended to cover a much

narrower scope of disputes, i.e., only those relating to

the interpretation and performance of the contract

itself.” Id. Professor Martin Domke adopted the Ninth

Circuit’s reasoning in his treatise on Commercial Arbi-

tration, noting that “a clause providing for the arbitra-

tion of ‘any dispute arising hereunder’ means arising

under the contract itself and does not cover matters or

claims independent of the contract or collateral to it.” 1

Domke, Commercial Arbitration (3d ed), § 8:14.

Irrespective which interpretive approach we apply to

the shareholders’ agreement’s clause mandating the

arbitration of “[a]ny dispute regarding interpretation

or enforcement of any of the parties’ rights or obliga-

tions hereunder,” we cannot “arguably” construe this

language to cover a dispute regarding workplace dis-

crimination. In re Nestorovski, 283 Mich App at 202.

The shareholders’ agreement neither bears a signifi-

cant relationship to Hall’s and Ortner’s CRA assertions,

nor refers to any issue even tangentially relevant to

Although some federal circuit courts of appeal have criticized the

analysis advanced in Mediterranean Enterprises, at least one court has

acknowledged “that ‘arising under’ may denote a dispute somehow

limited to the interpretation and performance of the contract itself.”

Sweet Dreams Unlimited, Inc v Dial-A-Mattress Int’l, Ltd, 1 F3d 639, 642

(CA 7, 1993).

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Hall’s and Ortner’s age-discrimination claims. Bearing

in mind the presumption in favor of arbitrability, we

decline to stretch the contracual language so far as to

encompass statutory civil rights claims. Because the

unambiguous language of the arbitration clause plainly

limits its application to actions flowing from the entitle-

ments, privileges, duties, and responsibilities attending

stock ownership, we discern no factual support for

defendants’ contention that the parties intended to

arbitrate age-discrimination claims.

Pursuant to similar logic, we reject the circuit court’s

finding that Stark Reagan’s Law Office Staff Manual

“bec[a]me part of the Shareholder Agreement for those

who executed that Agreement.” The staff manual com-

mences with the following relevant “INTRODUC-

TION”:

This Handbook has been prepared and will be kept

up-to-date to provide each employee of Stark Reagan, P.C.

with information about the Firm’s policies and procedures.

It is intended to inform you of the Firm’s responsibilities to

you and to inform you of your responsibilities to the Firm,

its clients and your fellow employees of the Firm.

***

All should understand that the policy statements de-

scribed herein are not conditions of employment and are

subject to change at the discretion of the Firm. These policies

are not intended to create, nor are they to be construed to

constitute, a contract between this Firm and any of its

employees for either employment or the providing of any

benefit described in the Handbook. The Board of Directors,

from time to time, makes decisions regarding increases or

decreases in the staff. Every present and future employee of

the Firm has and will continue to have the right, with or

without cause, to resign at any time, and the Firm will

continue to have the right, with or without cause, to termi-

nate the employment of any employee at any time....

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The provisions of this manual apply to all attorneys, law

clerks, legal assistants, the bookkeeper, the office adminis-

trator, the secretarial staff, the receptionists and couriers.

Some of the provisions of this booklet do not apply to all

employees of the Firm, and in those cases we have tried to

state clearly to whom the provisions do apply.

The staff manual describes in several paragraphs the

“ORGANIZATION AND MANAGEMENT OF THE

FIRM,” and explains the functions of the executive,

personnel, and technology committees. Most of the staff

manual content sets forth garden-variety terms and

conditions of employment, including “GENERAL OF-

FICE POLICIES” concerning attendance, outside em-

ployment, computers and e-mail, and a host of other

similar topics. The staff manual details Stark Reagan’s

compensation and benefit plans, and contains admoni-

tions against sexual harassment and other “unwelcome

conduct” “based upon a person’s legally protected sta-

tus, such as color, race, ancestry, religion, national

origin, age, weight, physical handicap, medical condi-

tion, disability, marital status, veteran status, or other

protected group status in addition to sex.” The staff

manual does not contain an arbitration clause.

The shareholders’ agreement makes no mention of

the staff manual. Rather, it includes the following

clause under the heading “Entire Agreement”:

This agreement constitutes the entire agreement be-

tween the parties regarding its subject matter and super-

sedes any and all other agreements, negotiations and

discussions, either written or oral, of the parties hereto

regarding the subject matter of this Agreement. Any such

prior written or oral agreements, negotiations and discus-

sions are hereby revoked, cancelled and rescinded.

Given that the parties contemplated that the sharehold-

ers’ agreement would serve as “the entire agreement

between the parties,” no record evidence supports the

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circuit court’s finding that the shareholders’ agreement

implicitly incorporated within its terms the law office

staff manual.

Nor do we accept, as did the circuit court, that the

Sixth Circuit’s decision in Panepucci, 281 Fed Appx at

488, compels us to view the shareholders’ agreement

“as an umbrella or master agreement in relation to, and

thus covering, the Staff Manual.”

We find Panepucci

distinguishable from the instant case in several impor-

tant respects. First, the arbitration term at issue in

Panepucci commanded a somewhat broader reach than

does the arbitration clause in the shareholders’ agree-

ment. Panepucci’s partnership agreement contained an

arbitration clause stating, “In the event of a contro-

versy or claim arising under or related to this Agree-

ment or its interpretation, or, in the event of an alleged

breach of this Agreement which the partnership or any

Partner disputes, the parties shall submit such contro-

versy, claim or dispute to a binding arbitration....”Id.

at 484 (emphasis altered). Second, Panepucci’s com-

plaint alleged that she had been inequitably compen-

sated on a discriminatory basis. Because the partner-

ship agreement set forth the method for compensating

partners, the Sixth Circuit held that the dispute fell

within the scope of the arbitration clause: “Panepucci’s

complaint alleges that she was entitled to more com-

pensation than was distributed. That claim clearly

requires reference to, and interpretation of, the Part-

nership Agreement.” Id. at 487. In contrast with the

facts of the instant case, the Sixth Circuit concluded

that

We note that the Sixth Circuit did not designate Panepucci for

publication, and generally considers unpublished decisions as having

“little precedential value.” Taxpayers United for Assessment Cuts v

Austin, 994 F2d 291, 295n3(CA6,1993).

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Panepucci’s action simply cannot be maintained without

reference to the Partnership Agreement. Even if the agree-

ment deals only with the bare mechanics of compensation,

the question of whether the other partners followed those

mechanics could be a key factor in deciding whether or not

they illegally discriminated against her. The key issue in

Panepucci’s suit is whether she was paid less and denied

work because of illegal discrimination. To determine

whether she was paid less will require determining a

baseline of how much she should be paid, and that will

require reference to the Partnership Agreement. [Id.at

487-488.]

In this case, the shareholders’ agreement supplies no

evidence pertinent to Hall’s and Ortner’s age-

discrimination claims.

Finally, we find entirely unpersuasive defendants’ ar-

gument that Panepucci supports the circuit court’s con-

clusion that the Stark Reagan staff manual should be

considered part of the shareholders’ agreement. In Pane-

pucci, the Sixth Circuit determined that even if the

defendants’ attorney manual “were a contract, it would

still be governed by the arbitration clause.” Id. at 488. The

Sixth Circuit premised this conclusion on language found

in Nestle Waters North America, Inc v Bollman, 505 F3d

498 (CA 6, 2007). In Nestle Waters, the parties “entered

into multiple contracts as part of one overall transaction

or ongoing relationship.” Id. at 503. The first contract in

the series incorporated an arbitration clause stating that

“ ‘any controversy or claim...arising out of this Agree-

ment...shall be settled by arbitration....’”Id. at 501.

A subsequent agreement (the Deed) did not mention

arbitration. Id. Nestlé Waters North America Inc. filed a

declaratory-judgment action in the federal district court

after receiving the defendants’ petition for arbitration,

which relied on language found only in the Deed. Id. The

Sixth Circuit framed the dispositive question as whether

an arbitration clause placed in an earlier contract could

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apply “to a dispute arising out of a later agreement, whose

execution was required by the first contract.” Id. at 504.

Although Nestlé Waters’s complaint lacked any reference

to the signed agreements, the Sixth Circuit ruled that

because “the proper interpretation of the Deed could not

be determined without reference to” the earlier agree-

ment and the parties’ ongoing relationship, the dispute

fell within the scope of the arbitration clause. Id. at 505.

The Sixth Circuit emphasized that “the arbitration clause

in this case was written into the contract that was

executed first and pursuant to which all of the subsequent

agreements and documents were executed.” Id. at 505-

506. Notably, the Sixth Circuit acknowledged in Nestle

Waters, “[W]e have held that an arbitration clause in a

later agreement should not be read backward into an

earlier agreement merely because the later agreement had

a boilerplate ‘merger’ clause.” Id. at 504.

The instant arbitration clause appears in a later

agreement that both lacks a merger clause and ex-

pressly prohibited the incorporation of any “other

agreements” within its subject matter. Given the sub-

stantial factual differences between this case and Nestle

Waters, we derive no guidance from the latter. Further-

more, defendants have brought forth no evidence that

the Stark Reagan shareholders intended that the con-

tents of the staff manual would be integrated into the

shareholders’ agreement. In summary, we detect in

defendants’ cited federal authority no reason to alter

our conclusion that the parties’ arbitration agreement

does not cover Hall’s and Ortner’s age-discrimination

claims.

C. HALL’S AND ORTNER’S STANDING TO BRING CRA CLAIMS

Lastly, defendants contend that we should affirm

summary disposition on an alternate ground, that Hall

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and Ortner lack standing to sue under the CRA. Accord-

ing to defendants, only “employees” may sue under the

CRA, and as shareholders of the firm, Hall and Ortner

instead qualify as employers. In considering whether

the statutory language of the CRA reflects a legislative

intent that partners or shareholders in a law firm are

entitled to the protections of the CRA, we bear in mind

“[w]ell-established principles [that] guide this Court’s

statutory construction efforts. We begin our analysis by

consulting the specific statutory language at issue.”

Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich

App 1, 10; 654 NW2d 610 (2002).

When reviewing matters of statutory construction, this

Court’s primary purpose is to discern and give effect to the

Legislature’s intent. The first criterion in determining

intent is the specific language of the statute. The Legisla-

ture is presumed to have intended the meaning it has

plainly expressed, and if the expressed language is clear,

judicial construction is not permitted and the statute must

be enforced as written. Additionally, it is important to

ensure that words in a statute not be ignored, treated as

surplusage, or rendered nugatory. Unless defined in the

statute, every word or phrase of a statute will be ascribed

its plain and ordinary meaning. [Robertson v Daimler-

Chrysler Corp, 465 Mich 732, 748; 641 NW2d 567 (2002)

(citations omitted).]

The relevant portion of the CRA sets forth the

following:

(1) 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 employ-

ment, compensation, or a term, condition, or privilege of

employment, because of religion, race, color, national ori-

gin, age, sex, height, weight, or marital status. [MCL

37.2202(1)(a).]

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The CRA defines an “employer” as “a person who has 1

or more employees, and includes an agent of that

person.” MCL 37.2201(a). A “person” includes “an

individual, agent, association, corporation,...partner-

ship,...oranyother legal or commercial entity.” MCL

37.2103(g).

Indisputably, defendants fall within the CRA’s defini-

tion of “employer.” Stark Reagan, a corporation and a

“person” for purposes of the CRA, has more than one

employee. MCL 37.2201(a); MCL 37.2103(g). As Stark

Reagan’s agents, the individual defendants are also “per-

sons” who employ others. MCL 37.2201(a); MCL

37.2103(g). As employers, defendants face liability under

the CRA if they “discriminate against an individual with

respect to employment, compensation, or a term, condi-

tion, or privilege of employment, because of...age....”

MCL 37.2202(1)(a). Although the CRA does not define the

term “individual,” “unless a contract or statute provides a

different definition, this Court has recognized that the

term ‘an individual’ designates a natural person or a

single human being.” People v Haynes, 281 Mich App 27,

31; 760 NW2d 283 (2008).

When we apply the plain meaning of the word

“individual” to the relevant portion of MCL

37.2202(1)(a), we conclude that the statute prohibits

employers from discriminating against persons on the

basis of age, with respect to “a term, condition, or

privilege of employment....” Defendants have not

challenged that Hall’s and Ortner’s age-discrimination

claims assert an adverse employment action. Alterna-

tively phrased, defendants have not denied that the

February 13, 2009 vote of the shareholders concerned

“a term, condition, or privilege of” Hall’s and Ortner’s

employment. And even assuming that Hall and Ortner

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cannot be characterized as Stark Reagan “employees,”

we nevertheless find that their pleadings state a claim

under the CRA.

In McClements v Ford Motor Co, 473 Mich 373, 376;

702 NW2d 166 (2005), amended 474 Mich 1201 (2005),

our Supreme Court considered whether a cashier work-

ing for AVI Food Systems, which operated three cafete-

rias at a Ford assembly plant, could maintain a sexual-

harassment action against a Ford Motor Company

employee. The Supreme Court held that “a worker is

entitled to bring an action against a nonemployer

defendant if the worker can establish that the defen-

dant affected or controlled a term, condition, or privi-

lege of the worker’s employment.” Id. at 389. Notably,

the Supreme Court recognized that “MCL 37.2202 does

not state that an employer is only forbidden from

engaging in [prohibited] acts against its own employ-

ees....[T]o limit the availability of relief under the

CRA to those suits brought by an employee against his

or her employer is not consistent with the statute.” Id.

at 386. Instead, to merit protection under the CRA, a

plaintiff must show “some form of nexus or connection

between the employer and the status of the nonem-

ployee.” Id. The Supreme Court continued:

[T]he key to liability under the CRA is not simply the

status of an individual as an “employee”; rather, liability is

contingent upon the employer’s affecting or controlling

that individual’s work status. Accordingly, an employer can

be held liable under the CRA for discriminatory acts

against a nonemployee if the nonemployee can demon-

strate that the employer affected or controlled a term,

condition, or privilege of the nonemployee’s employment.

[Id. at 386-387.]

Therefore, even were we to conclude that Hall and

Ortner were not employees of Stark Reagan, we inter-

pret the CRA as permitting their age-discrimination

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claim against defendants in light of the record evidence

that defendants’ actions “affected or controlled a term,

condition, or privilege” of Hall’s and Ortner’s employ-

ment.

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

TEPHENS

, J., concurred with G

LEICHER

,J.

K. F. K

ELLY

,P.J. (dissenting). I respectfully dissent.

The circuit court properly granted defendants summary

disposition pursuant to MCR 2.116(C)(7) and properly

ordered the case to proceed to arbitration. I would

affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

As noted by the majority, the individual parties to this

appeal are present and former shareholders in the law

firm of defendant Stark Reagan, P.C. (the firm). Plaintiffs

Patrick C. Hall and Ava Ortner first became “of counsel”

to the firm in 2003 for a one year trial period to determine

if they would become full partners

in the firm. At the

time, any future participation in the firm was contin-

gent on them becoming full partners. The firm only had

full partners, and each partner had equal shares of

stock, along with a seat on the Board of Directors.

Plaintiffs became full partners of the firm in 2004,

each paying $10,000 in a capital contribution to the firm

and signing the 1991 Shareholders’ Agreement. In

2005, a new Shareholders’ Agreement was executed. A

particular purpose of the agreement was to ensure

effective management of the firm:

The shareholders in Stark Reagan referred to each other as “part-

ners” and I use the term here.

110 294 M

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B. The parties hereto believe it is desirable and in their

mutual best interest to control the ownership of the Stock

of the Corporation and to also insure the continuous,

harmonious and effective management of the affairs, poli-

cies, and operations of the Corporation....

C. The parties desire to enter into this Agreement in

order, among other things, to establish and implement a

structure for the orderly management and operation of the

Corporation, to restrict the transfer of all shares of the

Stock of the Corporation so that the Stock will not pass into

the control of persons whose interests might be incompat-

ible with the interests of the Corporation and the Share-

holders, and to provide a market for the sale of shares upon

death or disability of a Shareholder and upon the occur-

rence of certain other events; all as hereinafter provided.

[Emphasis added.]

Stock ownership of the firm was divided equally

among the partners. All shares were common shares

and retained the same voting rights. Each partner

served as an officer of the firm; during their five-year

tenure with the firm, plaintiffs both held the position of

vice president. The managing partner of the firm was

elected each year by a vote of the partners. The agree-

ment specifically stated that it was subject to and

governed by the laws of the state of Michigan.

In addition to providing for management of the firm

by its shareholders, the agreement specified the proce-

dures and requirements for the involuntary termina-

tion of a partner’s interest in the firm as well as the

process by which the shares could be redeemed. And

any dispute was to be submitted to arbitration:

14.1 Arbitration

Any dispute regarding interpretation or enforcement of

any of the parties’ rights or obligations hereunder shall be

resolved by binding arbitration according to the rules of the

American Arbitration Association in the County of Oak-

2011] H

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land, State of Michigan. The parties hereby irrevocably

submit to personal jurisdiction of any State court in the

County of Oakland or the Federal court in the County of

Wayne, State of Michigan, in any action or other legal

proceeding to enforce any award made by the arbitrators.

The arbitrators may award attorneys fees to the prevailing

party in any arbitration proceeding.

***

. . . Proceeding to arbitration and obtaining an award

thereunder shall be a condition precedent to the bringing

or maintaining of any action in any court with respect to

any dispute arising under this Agreement, except for the

institution of a civil action of a summary nature where the

relief sought is predicated on there being no dispute with

respect to any fact.

In 2008, allegedly because of declining business and

revenues, the partners began discussing restructuring

of the firm, although they were unable to reach an

agreement on how to accomplish the restructuring. On

January 8, 2009, the Managing Partner, Keith Stark,

proposed downsizing the firm by three attorneys, in-

cluding partners. As noted by the majority:

According to affidavits submitted by Hall and Ortner,

Stark explained that their terminations were needed “to

change the ‘demographics’ of the firm.” The affidavits

attested that defendant Joseph Ahern expressed that “the

demographics of the firm was [sic] a problem because older

attorneys lose their client bases,” and that two younger

attorneys “ ‘had more potential’ and their practices would

be going up while ours would be going down.” At the

request of Hall and Ortner, the meeting adjourned until the

next week. During the continued meeting on January 12,

2009, Ortner and Hall announced that the termination of

their employment “constituted illegal age discrimination,”

and advised the other shareholders that they had retained

legal counsel. On February 13, 2009, defendants Ahern and

Jeffrey Fleury resigned as shareholders of Stark Reagan,

112 294 M

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effective immediately. The remaining shareholders voted to

redeem the stock held by Hall and Ortner, terminating

their employment effective March 1, 2009. [Ante at 91

(alteration in original).]

Plaintiffs commenced the instant action alleging vio-

lations of the Civil Rights Act (CRA), MCL 37.2101 et

seq. Defendants moved for summary disposition under

MCR 2.116(C)(7), contending that the arbitration pro-

vision of the Shareholders’ Agreement barred the law-

suit. Defendants also argued that plaintiffs, as share-

holders, could not proceed on a claim under the CRA.

The circuit court agreed with defendants that summary

disposition was required under MCR 2.116(C)(7) and

ordered the case to arbitration.

II. STANDARD OF REVIEW AND APPLICABLE LAW

The existence and enforceability of an arbitration

agreement are questions of law that we review de novo.

Michelson v Voison, 254 Mich App 691, 693-694; 658

NW2d 188 (2003). “[A]rbitration is a matter of contract

and a party cannot be required to submit to arbitration

any dispute which he had not agreed to so submit.”

Amtower v William C Roney & Co (On Remand), 232

Mich App 226, 234; 590 NW2d 580 (1998), quoting

AT&T Technologies, Inc v Communications Workers of

America, 475 US 643, 648; 106 S Ct 1415; 89 L Ed 2d

648 (1986) (quotation marks omitted) (alteration in

original). When the language of an arbitration clause is

clear and unambiguous, the intent of the parties will be

determined according to the plain meaning of the

language. However, any ambiguity in the language of an

arbitration clause is to be resolved in favor of arbitra-

tion:

[C]onsistent with the strong federal policy promoting

arbitration, any ambiguity concerning whether a specific

2011] H

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issue falls within the scope of arbitration, such as

whether a claim is timely, must be resolved in favor of

submitting the question to the arbitrator for resolution.

See AT&TTechnologies, [475 US at 650.] In other

words, there is a presumption of arbitrability “ ‘unless it

may be said with positive assurance that the arbitration

clause is not susceptible of an interpretation that covers

the asserted dispute. Doubts should be resolved in favor

of coverage.’ ” Id., quoting United Steelworkers of

America v Warrior & Gulf Navigation Co, 363 US 574,

582-583; 80 S Ct 1347;4LEd2d1409 (1960). In [First

Options of Chicago, Inc v Kaplan, 514 US 938, 945; 115 S

Ct 1920; 131 L Ed 2d 985 (1995)], the Court explained

that when the parties have a contract that provides for

arbitration of some issues, “the parties likely gave at

least some thought to the scope of arbitration.” There-

fore, the law “insist[s] upon clarity before concluding

that the parties did not want to arbitrate a related

matter.” Id.[Amtower, 232 Mich App at 234-235 (third

alteration in original).]

In order to determine whether a contested issue is

subject to arbitration, we apply a three-part test: “1) is

there an arbitration agreement in a contract between

the parties; 2) is the disputed issue on its face or

arguably within the contract’s arbitration clause; and

3) is the dispute expressly exempted from arbitration by

the terms of the contract.” Detroit Auto Inter-Ins Exch

v Reck, 90 Mich App 286, 290; 282 NW2d 292 (1979).

“Any doubts about the arbitrability of an issue should

be resolved in favor of arbitration.” Huntington Woods

v Ajax Paving Indus, Inc (After Remand), 196 Mich App

71, 75; 492 NW2d 463 (1992). And finally, “Segregating

disputed issues ‘into categories of “arbitrable sheep and

judicially-triable goats” ’ ” is generally disapproved. In

re Nestorovski Estate, 283 Mich App 177, 202-203; 769

NW2d 720 (2009), quoting Detroit Auto, 90 Mich App at

289.

114 294 M

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III. ANALYSIS

Plaintiffs maintain that the arbitration clause in the

Shareholders’ Agreement does not apply to their com-

plaint arising under the CRA. I disagree. Pursuant to

the three-part test previously set forth, the first and

third elements are met: the agreement clearly has an

arbitration clause and plaintiffs’ claims are not ex-

pressly exempted by the terms of the agreement. The

relevant question is whether plaintiffs’ CRA claims are

on their face or arguably within the Agreement’s arbi-

tration clause. I would conclude that they are.

The arbitration clause clearly and unambiguously

declares that it applies to “[a]ny dispute regarding

interpretation or enforcement of any of the parties’

rights or obligations hereunder....” (Emphasis

added.) The word “any” is defined as “ ‘every; all.’ ”

Dep’t of Agriculture v Appletree Mktg, LLC, 485 Mich 1,

8; 779 NW2d 237 (2010), quoting Random House Web-

ster’s College Dictionary (1997). By its very terms, the

agreement is also “subject to” and “governed by” Michi-

gan laws.

Plaintiffs allege in their complaint that they

were involuntarily terminated because of age discrimi-

nation. Because Michigan law prohibits discrimination

against an employee on the basis of age, MCL

37.2202(1)(a), the arbitration clause in the agreement

clearly applies. Moreover, engaging in illegal discrimi-

nation can hardly be said to be conducive to “the

continuous, harmonious and effective management” of

the firm which is a key purpose of the agreement.

Another issue addressed by the parties in the circuit

court and on appeal is the status of the respective

“Subject” to means “[u]nder the power of authority of another; owing

obedience or allegiance to another.” The American Heritage Dictionary of

the English Language, New College Edition (1981), p 1282. “Governed”

by means controlled by the actions and behavior of another. Id. at 569.

2011] H

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parties within the firm. Plaintiffs allege that they were

employees and that defendants–—the firm as well as its

individual shareholders—were their employers. With-

out addressing the merits of plaintiffs’ claims, it is clear

that this argument will necessitate an examination of

the agreement and operation of the firm in order to

ascertain the status and rights of the individual share-

holders. Plaintiffs’ complaint is replete with references

to “non-controlling” and “controlling” shareholders.

Plaintiffs allege that the individual defendants had the

“decisionmaking power” over “non-controlling share-

holders” like plaintiffs. Plaintiffs effectively allege that

there were “super partners” who made decisions that

were “rubber stamped,” while plaintiffs and others

were relegated to an inferior position within the firm.

These facts cannot be determined without reference to

how the firm operated and the partners’ relationships.

The proceedings will necessarily include an examina-

tion of plaintiffs’ status as shareholders and will, there-

fore, require a reading and application of the Share-

holders’ Agreement. The claim that plaintiffs were

marginalized as shareholders directly affects their

rights and responsibilities under the agreement. The

agreement is critically important to the case—not just

tangential to it; it is directly intertwined with plaintiffs’

claims that they held a lesser interest in the corpora-

tion.

Plaintiffs take the position that, because they were

fully indemnified of their capital contribution under the

agreement and do not raise any claim regarding the

mechanics of the stock divestiture, the agreement does

not apply to what they believe is their separate and

distinct claim of age discrimination. I disagree. Though

the mechanics of divestiture may have been proper,

plaintiffs are challenging the very process and motive

that led to the determination to buy out their shares

116 294 M

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and divest them of their interest in the corporation. The

majority opinion concedes as much by stating that

plaintiffs have “filed a complaint against Stark Reagan

and the individual defendants, asserting that age dis-

crimination motivated defendants’ decision to termi-

nate [their] shareholder status.” Ante at 90 (emphasis

added).

There are two divesture provisions in the agreement

applicable to this case. The first, § 8.1(A), concerns

termination of employment:

If a Shareholder who is employed by the Corporation

ceases to be employed by the Corporation due to voluntary

termination of employment, termination of employment by

the mutual consent of the Shareholder and the Corpora-

tion, or termination by the unilateral act of the Corpora-

tion, such Shareholder shall be deemed to have offered to

sell all of his Stock to the Corporation.

And the second, § 9.1, concerns shareholders who are

forced out:

Provided no other Triggering Event is then effective to

cause a redemption or purchase hereunder, upon the vote

or written consent of seventy-five percent (75%) of the

voting power of the then total issued and outstanding

Stock of the Corporation and delivery of written notice to

such effect to all Shareholders, the Stock of a Shareholder

which such vote or consent demands to be sold shall be

subject to redemption by the Corporation....

The agreement then sets out the procedural require-

ments for exercising a buyout, including price and

terms. It is, as the majority notes, procedural in nature;

however, that does not mean that it is inapplicable to

plaintiffs’ allegation of age discrimination. If found to

be valid, their claim will undoubtedly include relief in

the form of lost profits and stock ownership. Ultimately,

2011] H

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plaintiffs are disputing whether defendants had the

right to re-claim the shares.

Finally, because the arbitration clause was included

in the agreement, the parties obviously gave some

thought to the scope of any arbitration. It must be

noted that the parties are not unsophisticated lay

people; they are highly talented attorneys well versed in

employment and contract law. As such, they were fully

cognizant of all legal ramifications of the arbitration

clause. The arbitration clause specifically refers to

“any” dispute and does not exempt actions under the

CRA as it does “civil action[s] of a summary nature

where the relief sought is predicated on there being no

dispute with respect to any fact.” The law “insist[s]

upon clarity before concluding that the parties did not

want to arbitrate a related matter” and applying the

presumption of arbitrability, it cannot be said with

positive assurance that the arbitration clause is not

susceptible of an interpretation that covers plaintiffs’

complaint. Amtower, 232 Mich App at 235 (quotation

marks and citation omitted) (alteration in original).

I do not take issue with the law cited by the majority;

instead, I merely dispute the majority’s application of

these particular facts to the relevant law. Distilled to its

essence, plaintiffs are contesting the involuntary re-

demption of shares, which was allegedly the result of

unlawful discrimination. The Shareholders’ Agreement

is inextricably linked to plaintiffs’ claims, which cannot

be maintained without reference to the agreement.

Plaintiffs’ claims are, therefore, subject to arbitration. I

would affirm the circuit court’s order.

118 294 M

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In re MICHIGAN CONSOLIDATED GAS COMPANY’S COMPLIANCE

WITH 2008 PA 286 AND 295

Docket No. 292683. Submitted May 11, 2011, at Lansing. Decided

September 13, 2011, at 9:05 a.m.

The Public Service Commission (PSC) opened dockets for all rate-

regulated natural gas distribution companies to ensure the timely

implementation of the Clean, Renewable, and Efficient Energy Act

(the Act), MCL 460.1001 et seq., which requires regulated utilities

to adopt energy-optimization plans to reduce the demand for

energy. Michigan Consolidated Gas Company (MichCon) applied

for approval of its energy-optimization plan as the Act required.

The Association of Businesses Advocating Tariff Equity (ABATE)

intervened to argue, among other things, that customers who

purchase only gas transportation services and not the commodity

itself should not be subject to surcharges to recover the cost of

implementing energy-optimization plans. The PSC approved

MichCon’s energy-optimization plan, and ABATE appealed.

The Court of Appeals held:

1. The PSC’s conclusion that natural gas transportation cus-

tomers are “natural gas customers” under MCL 460.1089(2) was

not unlawful or unreasonable given that it comported with the

language of the Act and its purpose. Under MCL 460.1089(1), a

natural-gas provider whose rates are regulated, such as MichCon,

is entitled to recover the actual costs of implementing its approved

energy-optimization plan, and MCL 460.1089(2) requires that

these costs be recovered from all natural gas customers.

2. The PSC correctly decided that former MCL 460.1093(1)

only allowed exemption for eligible electric customers from the

energy-optimization-plan charges of their electric providers, not

those of their gas providers. Former MCL 460.1093(1) provided

that eligible electric customers were exempt from charges that

they would have otherwise incurred under MCL 460.1089 and

MCL 460.1091 if they filed a self-directed energy-optimization

plan with their electric providers and implemented the plan. The

PSC correctly determined that the charges referred to in former

MCL 460.1093(1) were limited to the charges for electric service

that would otherwise be applicable and did not include the charges

2011] In re M

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119

for the gas providers’ optimization plans, given that the self-

directed plan effectively replaces participation in the electric

providers’ optimization plan and that the PSC’s interpretation

otherwise comported with the language of the Act and the Legis-

lature’s subsequent amendment of MCL 460.1093(1).

3. ABATE failed to establish that the Act’s requirement that

the PSC approve MichCon’s energy-optimization plan within 90

days after the utility filed its application violated ABATE’s consti-

tutional right to due process or the statutory right to a reasonable

opportunity for a full and complete hearing. ABATE failed to offer

any evidence that the time limit prejudiced it or its members.

Affirmed.

1. P

UBLIC

TILITIES —

NERGY

-O

PTIMIZATION

LANS —

OST

ECOVERY —

ATURAL

USTOMERS

Under the Clean, Renewable, and Efficient Energy Act, a provider

whose rates are regulated is entitled to recover the actual costs of

implementing its approved energy-optimization plan from all

natural gas customers, including those customers who only pur-

chase gas transportation services from the provider (MCL

460.1089).

2. P

UBLIC

TILITIES —

NERGY

-O

PTIMIZATION

LANS —

OST

ECOVERY —

XEMPTION FOR

LIGIBLE

LECTRIC

USTOMERS

Eligible electric customers are exempt from charges that the cus-

tomer would otherwise incur under the cost-recovery provisions of

the Clean, Renewable, and Efficient Energy Act if the customer

files a self-directed energy-optimization plan with its electric

provider and implements the plan; the charges the customer would

otherwise incur as part of the cost-recovery plan refers to the

customer’s electric-optimization plan costs (Former MCL

460.1093[1], as added by 2008 PA 295).

Clark Hill PLC (by Thomas E. Maier and Robert A.

W. Strong) for the Association of Businesses Advocating

Tariff Equity.

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, and Steven D. Hughey and Patricia S.

Barone, Assistant Attorneys General, for the Public

Service Commission.

120 294 M

ICH

119 [Sept

Before: M

ARKEY

,P.J., and F

ITZGERALD

and S

HAPIRO

,JJ.

ARKEY

,P.J. Appellant Association of Businesses Ad-

vocating Tariff Equity (ABATE)

appeals by right a

June 2, 2009, order of the Michigan Public Service

Commission (PSC), approving the energy optimization

plan submitted by Michigan Consolidated Gas Com-

pany (MichCon) pursuant to Michigan’s Clean, Renew-

able, and Efficient Energy Act, 2008 PA 295, MCL

460.1001 et seq. (the Act).

We affirm.

I. BACKGROUND

The Act became effective on October 6, 2008. MCL

460.1191 provides that the PSC was to issue a tempo-

rary order implementing the Act within 60 days of its

passage. As discussed more fully in this Court’s related

case, In re Review of Consumers Energy Co Renewable

Energy Plan, 293 Mich App 254; 820 NW2d 170 (2011),

subpart A requires regulated electric utilities to adopt

“renewable energy plan[s]” in which the electric com-

panies are required to demonstrate how they would

achieve compliance with the Act’s requirements for

obtaining electric capacity and energy production from

“renewable energy resource[s]” as defined in part 1 of

ABATE describes itself as “a voluntary association of large indus-

trial businesses which are located in and doing business in the State of

Michigan.” According to its petition to intervene, its members “con-

sume substantial quantities of electricity and natural gas and in

Michigan alone their combined gas and electric bills exceed $1.2 billion

annually.” ABATE’s filing further indicates that some of its members

are customers of Michigan Consolidated Gas Company among other

providers.

The underlying petition in this case also addressed MichCon’s com-

pliance with 2008 PA 286, which, among other things, prevents a gas

utility from increasing the cost of its services to customers without PSC

approval. See MCL 460.6a(1). That act is not directly at issue in this

appeal.

2011] In re M

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the Act. See MCL 460.1011 and MCL 460.1021 through

MCL 460.1053. Subpart B of the Act requires, among

other things, that regulated electric and natural gas

providers adopt “energy optimization plan[s].” See

MCL 460.1071 through MCL 460.1097. Broadly speak-

ing, an energy optimization plan is designed to reduce

the demand for energy and provide for load manage-

ment, and thus reduce the future costs of providing

service to customers. Specifically, these plans are meant

“to delay the need for constructing new electric gener-

ating facilities and thereby protect consumers from

incurring the costs of such construction.” MCL

460.1071(2). See also MCL 460.1001(2) (stating the

Act’s purpose). Combination utilities are to adopt both

electric and natural gas energy optimization plans. The

Act provides companies with the option of enacting

their own energy optimization plans with PSC ap-

proval, see MCL 460.1071 through MCL 460.1089, or of

turning to an “independent energy optimization pro-

gram administrator,” a nonprofit organization selected

by the PSC through a competitive bid process, MCL

460.1091. Certain electric customers may also opt to

enact a self-directed energy optimization plan. MCL

460.1093. Also, gas or electric companies are permitted

to recover certain costs for the energy optimization

plans from their customers, see MCL 460.1089 and

MCL 460.1091(3), while electrical customers who have

a self-directed plan would be exempt from some of the

utilities’ plan costs, MCL 460.1093(1), as we will discuss

further.

The PSC conducted meetings and discussions on a

proposed order and released its temporary order on

December 4, 2008, followed by amendatory orders on

December 23, 2008, and January 13, 2009. In re Tem-

porary Order to Implement 2008 PA 295 (PSC Case No.

122 294 M

ICH

119 [Sept

U-15800).

At the same time, to comply with the strict

time limits placed on the PSC to complete the initial

phases of the implementation process by MCL 460.1021

and MCL 460.1073, the PSC opened dockets for all

rate-regulated natural gas distribution companies, in-

cluding MichCon. MichCon then filed a notice of intent

to file an application to seek review approval of its

energy optimization plan for 2009, 2010, and 2011. On

March 4, 2009, MichCon filed its application with

supporting testimony and exhibits for approval of its

energy optimization plan. Among other surcharges it

sought to impose on its customers for implementation

of the plan was a surcharge of $0.0009/Ccf

on Mich-

Con’s “End Use Transportation” customers,

some of

which are ABATE members. A hearing was held on the

proposed plan on April 20, 2009, and briefs were sub-

sequently submitted on May 5, 2009. With respect to

the surcharge at issue here, ABATE, which had moved

to intervene and was granted permission to do so,

continued its arguments, first raised in In re Rules

The temporary order, by its own terms, was to last only for a year

while the PSC promulgated administrative rules to administer the Act in

In re Rules Governing Renewable Energy Plans (PSC Case No. U-15900).

However, to date, the PSC has only proposed a number of rules to

administer the Act and is in the process of seeking public comment. In re

Rules Governing Renewable Energy Plans, order entered April 27, 2010

(PSC Case No. U-15900).

“Ccf” refers to “centum cubic feet” or 100 cubic feet of natural gas.

“End use transportation customers” are individuals and entities who

purchase only transportation services from the gas utility, as opposed to

customers who purchase both gas commodity and transportation (known

as “direct” customers) from MichCon. On appeal, ABATE refers to end

use transportation customers as “gas transportation only customers.” No

party uses the Act’s nomenclature of “distribution customers” from MCL

460.1089(5), but we find these terms synonymous and treat them as such.

Given this fact, we reject the challenge to ABATE’s standing to

dispute the rights of customers who choose to establish self-directed

energy optimization plans. The PSC had discretion to allow intervention,

2011] In re M

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123

Governing Renewable Energy Plans (PSC Case No.

U-15800), that natural gas transportation customers

cannot be subject to energy optimization plan sur-

charges of their transportation providers. It also chal-

lenged MichCon’s proposed gas surcharge for these

customers. ABATE also argued, again consistently with

its argument in U-15800, that electric customers who

file self-directed electric energy optimization plans with

their electric providers should be exempt under MCL

460.1093(1) not only for their electric providers’ energy

optimization plan surcharges, but from their gas pro-

viders’ energy optimization plan surcharges as well.

However, consistently with its holding in the initial

case, the PSC again rejected these arguments and

approved MichCon’s energy optimization plan, includ-

ing the surcharges on the gas transportation customers.

II. GAS TRANSPORTATION CUSTOMERS’ INCLUSION IN

MICHCON’S ENERGY OPTIMIZATION PLANS

ABATE argues that the PSC erroneously interpreted

the language of MCL 460.1089(2) to rule that gas

transportation only customers were “natural gas cus-

tomers” subject to a $0.0009/Ccf surcharge to fund

MichCon’s energy optimization plan.

As explained in In re Application of Detroit Edison

Co, 276 Mich App 216, 224-225; 740 NW2d 685 (2007):

The standard of review for PSC orders is narrow and

well-defined. Pursuant to MCL 462.25, all rates, fares,

charges, classification and joint rates, regulations, prac-

tices, and services prescribed by the PSC are presumed,

prima facie, to be lawful and reasonable. Michigan Con-

solidated Gas Co v Pub Service Comm, 389 Mich 624,

635-636; 209 NW2d 210 (1973). A party aggrieved by an

Mich Admin Code, R 460.17201, and permitted ABATE’s intervention

without limitation, Mich Admin Code, R 460.17205.

124 294 M

ICH

119 [Sept

order of the PSC has the burden of proving by clear and

satisfactory evidence that the order is unlawful or unrea-

sonable. MCL 462.26(8). To establish that a PSC order is

unlawful, the appellant must show that the PSC failed to

follow a mandatory statute or abused its discretion in the

exercise of its judgment. In re MCI Telecom Complaint, 460

Mich 396, 427; 596 NW2d 164 (1999). And, of course, an

order is unreasonable if it is not supported by the evidence.

Associated Truck Lines, Inc v Pub Service Comm, 377 Mich

259, 279; 140 NW2d 515 (1966). In sum, a final order of the

PSC must be authorized by law and supported by compe-

tent, material, and substantial evidence on the whole

record. Const 1963, art 6, § 28; Attorney General v Pub

Service Comm, 165 Mich App 230, 235; 418 NW2d 660

(1987).

“An agency’s interpretation of a statute, while en-

titled to ‘respectful consideration,’ ‘is not binding on

the courts, and it cannot conflict with the Legislature’s

intent as expressed in the language of the statute at

issue.’ ” In re Application of Consumers Energy Co, 281

Mich App 352, 357; 761 NW2d 346 (2008), quoting In re

Complaint of Rovas Against SBC Mich, 482 Mich 90,

93, 103; 754 NW2d 259 (2008) (quotation marks omit-

ted).

With respect to this Court’s review of the PSC’s

factual determinations:

Judicial review of administrative agency decisions must

“not invade the province of exclusive administrative fact-

finding by displacing an agency’s choice between two

reasonably differing views.” Employment Relations Comm

v Detroit Symphony Orchestra, 393 Mich 116, 124 [223

NW2d 283] (1974); see also In re Payne, 444 Mich 679,

692-693 [514 NW2d 121] (1994) (“When reviewing the

decision of an administrative agency for substantial evi-

dence, a court should accept the agency’s findings of fact, if

they are supported by that quantum of evidence. A court

will not set aside findings merely because alternative

findings also could have been supported by substantial

2011] In re M

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OMPLIANCE

125

evidence on the record.”). [In re Application of Detroit

Edison Co, 483 Mich 993 (2009).]

With regard to the question of whether natural gas

transportation customers should not be subject to a

$0.0009/Ccf surcharge to fund MichCon’s energy opti-

mization plan, we find ABATE’s arguments unpersua-

sive. Gas transportation customers are “natural gas

customers” under MCL 460.1089(2). In resolving this

issue we find persuasive and adopt this Court’s previous

analysis in In re Temporary Order to Implement 2008

PA 295, unpublished opinion per curiam of the Court of

Appeals, issued October 14, 2010 (Docket No. 290640),

pp 4-7:

When interpreting statutory language, this Court’s pri-

mary goal is to give effect to the intent of the Legislature.

“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.” Briggs Tax Serv, LLC v Detroit Pub Schools, 485

Mich 69, 76; 780 NW2d 753 (2010)....This Court accords

to every word or phrase of a statute its plain and ordinary

meaning, unless a term has a special, technical meaning, or

is defined in the statute. Sun Valley Foods Co v Ward, 460

Mich 230, 237; 596 NW2d 119 (1999); Stocker v Tri-

Mount/Bay Harbor Bldg Co, Inc, 268 Mich App 194, 199;

706 NW2d 878 (2005). See also MCL 8.3a; Bay Co Prosecu-

tor v Nugent, 276 Mich App 183, 189-190; 740 NW2d 678

(2007). Furthermore, statutory language is to be read in

context, and “statutory provisions are not to be read in

isolation; rather, context matters, and thus statutory pro-

visions are to be read as a whole.” Robinson v City of

Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010)....

Under MCL 460.1089(1), a provider whose rates are

regulated by the PSC is entitled to recover “the actual costs

of implementing its approved energy optimization plan.”

Pursuant to MCL 460.1089(2), the utility is entitled to

recover those costs from customers:

126 294 M

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119 [Sept

“Under subsection (1), costs shall be recovered from all

natural gas customers and from residential electric custom-

ers by volumetric charges, from all other metered electric

customers by per-meter charges, and from unmetered

electric customers by an appropriate charge, applied to

utility bills as an itemized charge.” [Emphasis added.]

In the instant case, ABATE argues that individuals and

entities who purchase only “transportation services” from

the gas utility, i.e. natural gas transportation customers,

are not “natural gas customers” of the utility and thus

cannot be assessed the surcharge to fund the gas distribu-

tion utilities’ energy optimization plans which ABATE

maintains the “transportation only customers” cannot use.

The phrase “natural gas customers” is not specifically

defined in the Act. The PSC noted this, but found that the

Legislature intended the definition to include transporta-

tion customers. It based its decision on the fact that gas

transportation customers were not explicitly excluded or

distinguished in MCL 460.1089(1), that the transportation

customers would receive benefits from inclusion in the

providers’ energy optimization plans, that the additional

provisions of the Act include the revenues generated by

sales to transportation customers, and that inclusion of

these customers was consistent with the stated goals of the

energy optimization provisions of the Act, as well as the

stated goals of the Act itself.

Reading MCL 460.1089(2) in context with the other

subsections of that statute, and in connection with the

remaining provisions of the Act and the stated purpose of

the Act in MCL 460.1001(2), Robinson, 486 Mich at 15, we

hold that the PSC correctly found that a portion of the

natural gas providers’ energy optimization plan costs could

be charged back to the providers’ gas transportation cus-

tomers. Gas transportation customers take their service

from the providers pursuant to PSC-approved terms and

rate schedules. The services they are provided by the

regulated utility are “natural gas” services. And in the

absence of even an assertion to the contrary, we find no

error in the PSC’s finding that all of ABATE’s members do

purchase natural gas commodity, albeit from another pro-

2011] In re M

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vider. Thus, in light of the specific language that costs shall

be recovered from “all natural gas customers” (emphasis

added), the PSC’s interpretation does not “conflict with the

Legislature’s intent as expressed in the language of the

statute at issue.” In re Application of Consumers Energy

Co, 281 Mich App at 357.

The language of MCL 460.1089(6), MCL 460.1089(7)

and MCL 460.1091(1) provides further support for the

PSC’s decision. In pertinent part, MCL 460.1089(6) pro-

vides:

“The commission shall authorize a natural gas provider

that spends a minimum of 0.5% of total natural gas retail

sales revenues, including natural gas commodity costs,ina

year on commission-approved energy optimization programs

to implement a symmetrical revenue decoupling true-up

mechanism that adjusts for sales volumes that are above or

below the projected levels that were used to determine the

revenue requirement authorized in the natural gas provider’s

most recent rate case.” [Emphasis added.]

[

]

MCL 460.1089(7) provides in pertinent part:

“A natural gas provider or an electric provider shall not

spend more than the following percentage of total utility

retail sales revenues, including electricity or natural gas

commodity costs, in any year to comply with the energy

optimization performance standard without specific approval

from the commission....”[Emphasis added.]

Similarly, MCL 460.1091(1) provides that, except for MCL

460.1089(6), the requirements under MCL 460.1071

through MCL 460.1089 do not apply “to a provider that

pays the following percentage of total utility sales revenues,

including electricity or natural gas commodity costs, each

year to an independent energy optimization program ad-

ministrator selected by the commission[.]” (emphasis

added).

We agree with the PSC’s determination that these

provisions support a finding that the Legislature intended

We recognize the parties’ agreement that “natural gas commodity

costs” represents sales of the physical natural gas itself.

128 294 M

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119 [Sept

to include natural gas transportation customers in the

providers’ energy optimization plans (either administered

internally or run by the PSC’s program administrator) and

to count the transportation revenues for purposes of deter-

mining the size of the plans and the ability to implement

the true-up mechanism. ABATE argues that Consumers’

reading of the statutes improperly renders “including

natural gas commodity costs” or “including electricity or

natural gas commodity costs” surplusage. However, it

ignores the contrary argument that, if the Legislature

intended the inclusion of only commodity costs, it would

not have added the language concerning total sales, or total

retail sales, revenue and that ABATE’s interpretation

would thus in turn improperly render this language sur-

plusage. We do not find ABATE’s argument persuasive.

The language used in these sections indicates an intention

by the Legislature that the provider is to include all of its

utility sales revenues in its calculations.

Thus, the pro-

vider is to include the costs of the gas to direct customers,

transportation sales to direct (or bundled) customers, and

transportation sales to unbundled customers. While

ABATE states that the question of what sales are to be

included is not directly related to the question of which

customers have to pay for the optimization plan costs, we

disagree. The provider’s costs are passed on to the custom-

ers under MCL 460.1089(2). And as ABATE repeatedly

points out on appeal, an energy optimization plan is

supposed to “[e]nsure, to the extent feasible, that charges

collected from a particular customer rate class are spent on

energy optimization programs for that rate class.” MCL

460.1071(3)(d). Thus, when the provisions of the Act are

viewed as a whole, the scope of an energy optimization plan

is related to the Legislature’s intention concerning which

customers should be responsible for the costs of imple-

menting the plan.

MCL 460.1089(5) further supports a finding that the

Legislature intended to include gas transportation custom-

ers in the phrase “all natural gas customers.” That statute

provides:

2011] In re M

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“The established funding level for low income residen-

tial programs shall be provided from each customer rate

class in proportion to that customer rate class’s funding of

the provider’s total energy optimization programs. Charges

shall be applied to distribution customers regardless of the

source of their electricity or natural gas supply.”

The inclusion of “distribution customers” in this subsec-

tion provides support for the PSC’s conclusion that the

Legislature was aware of the existence of gas transporta-

tion customers and intended them to be included in “all

natural gas customers” in MCL 460.1089(2). In addition,

this subsection further supports the PSC’s interpretation

because it ties the customers’ funding of the low income

residential programs in “proportion to that customer rate

class’s funding of the provider’s total energy optimization

programs.” In other words, the distribution customers’

funding responsibilities for low income residential pro-

grams are to be proportionate to the distribution custom-

ers’ funding of the total energy optimization program. This

indicates an intent by the Legislature that the distribution

customers, or gas transportation customers, share funding

responsibility for the provider’s total energy optimization

program, and are thus included as “all natural gas custom-

ers” for recovery of energy optimization plan surcharges.

In addition, the PSC reasonably found that the inclusion

of gas transportation customers in the energy optimization

programs of their transportation providers would have

results consistent with the intentions of the Act as stated in

MCL 460.1001(2). While MCL 460.1071(2) describes the

goals of the energy optimization portion of the Act prima-

rily in terms of reduction of electric usage, and of reducing

the need to build more electric generating facilities, ulti-

mately the Act is designed to promote electrical and

natural gas energy efficiency. See e.g. MCL 460.1071(3)(f)

and (4)(a). While reducing the gas transportation custom-

er’s gas usage does not directly result in increased future

service capacity for the transportation provider, it could

have the effect of increasing the future service capacity of

the provider who sells the transportation customer its

natural gas. These presumably could include municipal

130 294 M

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119 [Sept

providers, who are not subject to regulation by the PSC.

See MCL 460.6. A demand reduction in one of ABATE’s

member companies results in an increased ability for such

a utility to meet customer’s [sic] future demands without

investment in costly infrastructure. This is at least consis-

tent with the goal of MCL 460.1001(2)(b) to provide greater

energy security through the use of indigenous energy

resources. This finding refutes ABATE’s implicit argument

that the natural gas transportation customers’ gas usage is

not relevant to the goals of the Act or of the creation of

energy optimization plans.

For the above reasons, we hold that ABATE has not

shown that the PSC’s decision that natural gas transpor-

tation customers are responsible for energy optimization

plan costs under MCL 460.1089(2) is unlawful or unrea-

sonable.

_____________________________________________________

Some caveats apply for costs that exceed the overall

funding levels specified in the plan, and “costs for load

management” are not recoverable under this section.

While the Act does not define “retail” sale, ABATE

does not argue that a sale of transportation services does

not constitute a retail sale, nor does it explain what such a

sale would otherwise be. In addition, because the language

of MCL 460.1091 does not use the phrase “retail” but

includes the same percentages of revenue as those included

in MCL 460.1089(7), and the sales of transportation ser-

vices are to end user customers, we conclude that these

services are intended to be viewed as retail sales.

A similar conclusion could be made regarding the

savings targets outlined in MCL 460.1077. The PSC’s

December 23, 2008 order clarified that these targets in-

clude sales volumes that include both choice and transpor-

tation sales volumes.

With regard to ABATE’s argument that it will not be

able to participate in any of the benefit programs, Consum-

ers correctly notes that ABATE acknowledges that gas

transportation customers will be eligible to participate in

and receive benefits from the energy optimization pro-

2011] In re M

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OMPLIANCE

131

grams developed by the utilities, a fact that the PSC

recognized in its order. ABATE’s assertion as to the

amount of the benefits its members will receive, and

whether these benefits would run afoul of the require-

ments in MCL 460.1071(3)(d), is speculative.

_____________________________________________________

ABATE has raised nothing new in the instant appeal

to challenge this analysis. Most pertinently, while

ABATE continues to complain that the gas transporta-

tion customers will not benefit from participation in the

energy optimization plans, and in particular from Mich-

Con’s plan, it has still failed to provide any underlying

testimony or evidence to support this assertion. Accord-

ing to MichCon’s trial brief, as well as the testimony of

its manager for business development, Gregory

Woloszczuk, and its director of market development,

Kevin McCrackin, MichCon’s commercial and indus-

trial customers, including gas transportation custom-

ers, would be offered two different programs: “prescrip-

tive,” with a fixed incentive for each measure the

customer takes, and “non-prescriptive,” in which the

level of incentive is determined from the amount of

savings the plan produces. According to MichCon’s

witnesses, the goal of the prescriptive program is to

offer fixed incentives on “proven technologies” to in-

stall energy-efficient systems, such as heating and cool-

ing systems, food service equipment, commercial laun-

dry equipment, and energy-management systems in

existing and new facilities. The non-prescriptive

program—broken down into three subprograms: “cus-

tom,” “request for proposal” (RFP), and “new

construction”—involves incentives for energy-efficient

equipment and controls that are considered nonstand-

ard, either because they are unique applications or new

technologies, in existing or new facilities. Woloszczuk

testified that these programs would comprehensively

132 294 M

ICH

119 [Sept

cover all of MichCon’s consumer and industrial custom-

ers, that the programs would work in concert with each

other, and that MichCon would provide engineering

reviews of custom applications. McCrackin testified

that he thought the “RFP offerings” were “broad

enough to be available to all customers, and scalable

enough that [MichCon] can meet the aggressive savings

requirements.” Given this testimony, it appears that

MichCon planned that gas transportation customers

would benefit from its energy optimization plan and

take part in its incentives programs, even though the

transportation customers receive gas commodity from a

different source. Especially given ABATE’s acknowl-

edgement that its members will receive some benefit

from participating, we find ABATE’s argument unper-

suasive.

Accordingly, we agree with this Court’s decision in In

re Temporary Order to Implement 2008 PA 295 and

conclude that the Legislature intended gas transporta-

tion customers to participate in MichCon’s energy op-

timization plan.

III. EXEMPTION UNDER MCL 460.1093(1)

ABATE next argues that the PSC erroneously con-

strued former MCL 460.1093(1), which provided that

“an eligible primary or secondary electric customer” is

exempt from charges that the customer would other-

wise incur under MCL 460.1089 and MCL 460.1091 if

the customer files a self-directed energy optimization

plan with its electric provider and implements the

plan.

ABATE contends that the PSC improperly ruled

that this exemption only applies to surcharges from

As discussed further later in this opinion, this provision was amended

by 2010 PA 269, effective December 14, 2010.

2011] In re M

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OMPLIANCE

133

electric providers, despite the fact that MCL 460.1089

and MCL 460.1091 provide for electric and gas utilities

to collect gas and energy optimization program costs.

Because we agree with this Court’s previous analysis

of this issue in In re Temporary Order to Implement

2008 PA 295, unpub op at 7-9, we adopt it:

ABATE next argues that the PSC erroneously construed

the language of MCL 460.1093(1), when it determined that

an “eligible electric customer” could still be responsible for

surcharges relating to the customer’s natural gas provid-

er’s energy optimization plan, even if it filed a self-directed

electrical energy optimization plan with its electric pro-

vider. We disagree.

As a counterpart to MCL 460.1089 and MCL 460.1091,

MCL 460.1093 provides an opportunity for certain electric

customers to file a self-directed electric optimization plan.

MCL 460.1093(2) defines eligibility based on the peak

demand of the customer’s facility or facilities. MCL

460.1093(1), the subject of the instant dispute, provides for

exemption of the requirements and responsibilities the

customer would otherwise have under the energy optimi-

zation plan of its provider, or as ABATE argues providers,

under MCL 460.1089, or the provider or providers’ “inde-

pendent energy optimization program administrator” un-

der MCL 460.1091. [Former] MCL 460.1093(1) provide[d]:

“An eligible primary or secondary electric customer is

exempt from charges the customer would otherwise incur

under section 89 or 91 if the customer files with its electric

provider and implements a self-directed energy optimiza-

tion plan as provided in this section.”

At issue is whether an eligible electric customer, who

files a self-directed energy optimization plan with its elec-

tric provider[,] is exempt from the surcharges of only its

electric provider under MCL 460.1089 or MCL 460.1091 or

from both its gas and electric providers under those sub-

sections.

The PSC found that the Legislature did not have this

intent, holding that it was highly unlikely that the Legis-

134 294 M

ICH

119 [Sept

lature would have, in a section of the Act dealing explicitly

with electric customers who file self-directed electric en-

ergy optimization plans, provided a loophole by which an

electric sales customer who elects to do a self-directed

electric program can avoid not only the electric surcharge,

but also any gas surcharges assessed to gas sales custom-

ers. In holding that a customer is an electric customer only

when purchasing electric service, the PSC determined that

the charges referenced in MCL 460.1093(1) are therefore

limited to charges for electric service that would otherwise

be applicable.

We find the PSC’s rationale persuasive. The phrase “is

exempt from charges the customer would otherwise incur

under section 89 or 91” is to be read in context with the

remaining portions of MCL 460.1093, as well as the re-

maining portions of the Act. Robinson, 486 Mich at 15. The

purpose of MCL 460.1089 and MCL 460.1091 is to provide

alternative forms of provider-based energy optimization

plans, and provide coverage for the cost of funding the

plans. A self-directed energy plan obviates the need for the

customer to participate in its electric provider’s optimiza-

tion plan, and effectively replaces it. See MCL 460.1093(7).

Thus, the “charges the customer would otherwise incur

under [MCL 460.1089 or MCL 460.1091]” in this situation

refers to the customer’s electric optimization plan costs. Or,

as stated by the PSC, a customer is an electric customer with

respect to electric charges, and a gas customer with respect to

gas charges.

The PSC’s decision that the Legislature did not intend

MCL 460.1093(1) to exempt the customers who file a

self-directed energy optimization plan from all surcharges,

whether gas or electric-related, they would otherwise incur

under MCL 460.1089 or MCL 460.1091 is further sup-

ported by the language of [former] MCL 460.1093(4)(c).

[

]

This provision, which also pertains to customers who file a

self-directed energy optimization plan, requires the PSC to

“[p]rovide a mechanism to cover the costs of the low

income energy optimization program under [MCL

This language is now contained in MCL 460.1093(5)(c).

2011] In re M

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OMPLIANCE

135

460.1089].” This program is found in MCL 460.1089(5),

discussed above. Thus, reading MCL 460.1093(1) in con-

junction with [former] MCL 460.1093(4)(c), we conclude

that the Legislature did not intend for the filing of an

electric self-directed energy optimization plan to serve as a

blanket exemption from all of the other surcharges in MCL

460.1089 or MCL 460.1091. Notably, ABATE does not

challenge on appeal the PSC’s imposition of the “cost

associated with the allocated portion for the provider’s low

income residential energy optimization program” on self-

directed optimization plan customers. Accordingly, reading

the language of MCL 460.1093(1) as a whole in conjunction

with the remainder of MCL 460.1093, and the other

provisions of the Act, we hold that ABATE has failed to

show that the PSC’s decision was unlawful or unreason-

able.

_____________________________________________________

This section

[

]

provides:

“Once a customer begins to implement a self-directed

plan at a site covered by the self-directed plan, that site is

exempt from energy optimization program charges under

section 89 or 91 and is not eligible to participate in the

relevant electric provider’s energy optimization pro-

grams.”

_____________________________________________________

Moreover, we also note that, in addition to other

amendments of MCL 460.1093, the Legislature has

since amended MCL 460.1093(1), which now provides

in pertinent part: “An eligible electric customer is

exempt from charges the customer would otherwise

incur as an electric customer under section 89 or 91 if

the customer files with its electric provider and

implements a self-directed energy optimization plan

as provided in this section.” (Emphasis added.) This

amendment supports the above analysis concerning

the Legislature’s intent.

This language is now contained in MCL 460.1093(8).

136 294 M

ICH

119 [Sept

Accordingly, the PSC correctly decided that former

MCL 460.1093(1) only allowed exemption for eligible

electric customers from their electric providers’ energy

optimization plan charges, not their gas providers’

optimization plan charges.

IV. NINETY-DAY REVIEW PERIOD

The Act requires that the PSC approve energy optimi-

zation plans, and renewable energy plans, within 90 days

after the utility/provider files its application. As it argued

in In re Temporary Order to Implement 2008 PA 295,

ABATE maintains that this tight time frame and the

orders of the PSC setting the schedules for this and other

cases violated customers’ rights under the Michigan Ad-

ministrative Procedures Act (APA) and the Michigan

Constitution. While we note that ABATE failed to raise

this issue below, we will address it. We again find the

analysis this Court used in In re Temporary Order to

Implement 2008 PA 295, unpub op at 10-12, persuasive

and adopt it:

MCL 460.1021(5) provides:

“The commission shall conduct a contested case hearing

on the proposed plan filed under subsection (2),

[

]

pursu-

ant to the administrative procedures act of 1969, 1969 PA

306, MCL 24.201 to 24.328. If a renewable energy genera-

tor files a petition to intervene in the contested case in the

manner prescribed by the commission’s rules for interven-

tions generally, the commission shall grant the petition.

Subject to [MCL 460.1021(6) and 420.1021(10)] after the

hearing and within 90 days after the proposed plan is filed

MCL 460.1021(2) requires each electric provider to file a proposed

renewable energy plan within 90 days after the PSC issued its temporary

order implementing the Act. MCL 460.1073(1) in turn provides, “A

provider’s energy optimization plan shall be filed, reviewed, and ap-

proved or rejected by the [PSC] and enforced subject to the same

procedures that apply to a renewable energy plan.”

2011] In re M

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OMPLIANCE

137

with the commission, the commission shall approve, with

any changes consented to by the electric provider, or reject

the plan.”

As noted by ABATE, MCL 460.6a(1) provides in pertinent

part that, in certain proceedings before the PSC, “the effect of

which will be to increase the cost of services to [the gas or

electric utility] customers,” interested parties are entitled to

notice and a [sic] “a reasonable opportunity for a full and

complete hearing.” Pursuant to MCL 460.6a(2)(a), a “ ‘[f]ull

and complete hearing’ means a hearing that provides inter-

ested parties a reasonable opportunity to present and cross-

examine evidence and present arguments relevant to the

specific element or elements of the request that are the

subject of the hearing.”

Here, even to the extent that ABATE is correct in its

assertion that it, or other customers, are entitled to this

procedure, it cannot show that the PSC’s actions were

improper. ABATE notes that our Supreme Court has held

that the PSC should provide for a “full and complete

hearing” to even procedures for interim rate relief, see

ABATE v Mich Public Service Comm, 430 Mich 33, 36,

42-43; 420 NW2d 81 (1988), and argues that parties are

entitled to these procedures in energy optimization plan

proceedings. However, it ignores the Supreme Court’s

concurrent holding that, even in such a case, “[t]he PSC

also retains discretion to define the standards upon which

it bases a grant of interim relief, to define what issues and

factors, in a given case, are relevant to those standards as

opposed to the standards for final relief, and to limit

evidence to the written form.” Id. at 36. See also id.at

43-44. Thus, the PSC retains the ability to narrow the

issues in rate optimization plan proceedings, and the

relevant evidence, accordingly.

In its denial of ABATE’s motion for rehearing or recon-

sideration, the PSC stated the Legislature intended to

expedite energy optimization plan cases and thus only

issues that are germane to the questions before the PSC

should be entertained at the hearing. It further found that

following the procedures set forth in the orders would not

violate any party’s rights because they provide for notice,

138 294 M

ICH

119 [Sept

opportunity for intervention, offering evidence, cross-

examining evidence presented by others, and presenting

arguments.

ABATE has not offered evidence to show that the PSC’s

decision was unreasonable or unlawful, or that it has failed

to provide a reasonable opportunity for a full hearing in

energy optimization plan cases. ABATE’s argument mini-

mizes the fact that the Legislature, not the PSC, set forth

the ninety-day plan review timeframe here. Essentially,

through the language of MCL 460.1021(5), the Legislature

has determined that, as to the review of energy optimiza-

tion or renewable energy plans, ninety days presents a

“reasonable opportunity to present and cross examine

evidence and present arguments relevant to the specific

element or elements of the requests that are subject to the

hearing” under MCL 460.6a(2). And while ABATE argues

that the PSC improperly informed the Legislature that

such a timeframe was feasible, or at least did not inform

the Legislature that the timeframe would present a prob-

lem, it does not provide support for this assertion.

As to ABATE’s claims that the ninety-day window violates

customers’ due process rights under the Michigan Constitu-

tion, ABATE cites solely to Const 1963, art 6, § 28. It provides

no analysis of its claims that the Legislature’s actions violated

its members’ constitutional rights and no case law to support

its assertions. “It is not sufficient for a party ‘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.’ ”

Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998),

quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388

(1959). “Failure to brief a question on appeal is tantamount to

abandoning it.” Mitcham, 355 Mich at 203.

In addition, ABATE essentially seeks declaratory relief

concerning an alleged due process violation that has not yet

occurred. ABATE asserts that the ninety-day window is

insufficient to present and cross-examine evidence, but has

not demonstrated this to be the case by providing particu-

lars concerning what, if any, evidence, testimony, argument

2011] In re M

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OMPLIANCE

139

or other matter it was not permitted to introduce or

cross-examine in optimization plan cases as a result of the

ninety-day period.

...Wethus hold that ABATE has failed to demonstrate

that the PSC’s decision to adopt procedures consistent with

the time frame set forth in MCL 460.1021(5) was unrea-

sonable or unlawful.

ABATE’s arguments in this case are essentially the

same as those raised in its appeal from the initial

temporary order. It again cites Const 1963, art 6, § 28,

without any further discussion. And while it now has at

least participated in a number of energy optimization

cases, it provides nothing to show that the time limits

imposed by MCL 460.1021(5) have actually caused it or

its members to be prejudiced. ABATE has not, for

example, cited any expert witness testimony it could not

procure in time or any discovery that it tried to engage

in and could not. As the PSC notes, ABATE did partici-

pate in this case and filed both an initial brief and a

reply brief. In addition to the claims raised in this

appeal, ABATE specifically challenged MichCon’s ac-

tual proposed energy efficiency incentive on the

grounds that it was unnecessary, poorly constructed,

not cost-effective, and inconsistent with the proposed

purpose of the incentive. ABATE has not yet produced

anything concrete to show that it or its members lost

protections under the APA or the Constitution.

Accordingly, we adopt the rationale in In re Tempo-

rary Order to Implement 2008 PA 295 and conclude that

ABATE has not met its burden of showing that the

PSC’s adoption of the time frame set out in MCL

460.1021(5) was unlawful or unreasonable.

We affirm.

ITZGERALD

and S

HAPIRO

, JJ., concurred with M

ARKEY

P.J.

140 294 M

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119 [Sept

YOUNG v INDEPENDENT BANK

Docket No. 299192. Submitted September 8, 2011, at Detroit. Decided

September 20, 2011, at 9:00 a.m. Leave to appeal denied, 491 Mich

908.

Independent Bank and Independent Mortgage Company initiated

mortgage foreclosure proceedings against Alicia Young with regard

to her primary residence. Young thereafter filed for Chapter 7

bankruptcy and, although Young’s bankruptcy attorney and the

bankruptcy trustee were aware of the foreclosure dispute and no

lawsuit regarding the dispute had yet been filed, Young did not list

a cause of action regarding the foreclosure dispute on her schedule

of assets for purposes of the bankruptcy proceedings. The trustee

eventually filed a report in the bankruptcy proceedings that did

not list the potential lawsuit. The bankruptcy court thereafter

entered a discharge in bankruptcy. Young then brought an action

in the Oakland Circuit Court against Independent Bank and

Independent Mortgage Company, seeking to quiet title to her

residence. Defendants filed a motion for summary disposition,

alleging that Young did not have standing to bring the action

because the interest in the cause of action belonged to the

bankruptcy estate and not to Young. The court, Shalina Kumar, J.,

agreed with defendants and granted their motion. Young appealed

the order dismissing her action.

The Court of Appeals held:

1. A party filing for bankruptcy must list all his or her assets

on the bankruptcy schedule, including all legal or equitable

interests of the debtor in property as of the commencement of the

case. The interests of the debtor in property include causes of

action. The debtor loses all rights to his or her property when he

or she files for bankruptcy. The right to pursue causes of action

formally belonging to the debtor then vests in the trustee for the

benefit of the estate and the debtor has no standing to pursue such

causes of action on a vested asset unless the trustee abandons it or

the court gives permission.

2. The trial court properly considered the foreclosure dispute

an asset of the bankruptcy estate because Young clearly was aware

that she was in the dispute with defendants when she filed for

bankruptcy.

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3. It is not disputed that Young did not receive permission from

the bankruptcy court to bring her suit to quiet title. An unsched-

uled asset cannot be abandoned. A trustee’s knowledge of an

unscheduled asset does not create an exception to the rule that an

unscheduled asset cannot be abandoned. The trial court properly

held that plaintiff lacked standing to bring this suit regarding an

asset belonging to the bankruptcy estate.

Affirmed.

1. B

ANKRUPTCY —

CHEDULE OF

SSETS —

NTERESTS OF

EBTOR —

AUSES OF

CTION

A party filing for bankruptcy must list all his or her assets on the

bankruptcy schedule, including all legal and equitable interests of

the debtor in property as of the commencement of the proceedings;

the interests of the debtor in property include causes of action; a

debtor loses all rights to his or her property when the debtor files

for bankruptcy and a right to pursue a cause of action formerly

belonging to the debtor then vests in the trustee for the benefit of

the bankruptcy estate; the debtor has no standing to pursue such

a cause of action unless the trustee abandons it or the court gives

permission (11 USC 521[a][1], 11 USC 541[a][1]).

2. B

ANKRUPTCY —

CHEDULE OF

SSETS —

NSCHEDULED

SSETS —

BANDONMENT

SSETS BY

ANKRUPTCY

RUSTEE

An unscheduled asset cannot be abandoned by a bankruptcy trustee

even if the trustee knows of the existence of the unscheduled asset.

Alicia Young in propria persona.

Weltman, Weinberg & Reis Co., L.P.A. (by Stuart A.

Best), for Independent Bank and Independent Mortgage

Company.

Before: M. J. K

ELLY

,P.J., and O

WENS

and B

ORRELLO

JJ.

URIAM

. Plaintiff appeals as of right the trial

court’s order of dismissal based on the conclusion that

plaintiff did not have standing to bring the action. We

affirm.

This action was brought to quiet title to plaintiff’s

primary residence. In December 2009 plaintiff filed for

142 294 M

ICH

141 [Sept

Chapter 7 bankruptcy. Before that, defendants had

initiated foreclosure proceedings against plaintiff re-

garding the residence. Defendants filed the requisite

motions to proceed with the foreclosure outside the

bankruptcy court.

Plaintiff disputed the foreclosure with the bank

before and during the bankruptcy proceedings, though

no lawsuit had yet been filed. Plaintiff did not list this

cause of action on her schedule of assets for purposes of

the bankruptcy proceedings. However, both plaintiff’s

bankruptcy attorney and the trustee were aware of the

dispute with the bank.

The bankruptcy court entered a discharge in bank-

ruptcy in March 2010, and plaintiff instituted this

lawsuit within a month. Defendants filed a motion to

dismiss on the ground that plaintiff did not have

standing to bring the claim because the interest in this

cause of action belongs to the bankruptcy estate and not

to plaintiff. The trial court granted this motion.

Plaintiff argues that the trial court erred by conclud-

ing that she did not have standing. She asserts that the

trustee knew about the potential lawsuit with the bank

and abandoned the asset when the trustee filed his

report that did not list the potential lawsuit. As a result,

she asserts that the interest in the abandoned asset

reverted back to her and therefore she has standing to

bring this claim to quiet title. We disagree.

The question whether a party has standing to bring

a claim is reviewed de novo because it is a question of

law. In re KH, 469 Mich 621, 627-628; 677 NW2d 800

(2004).

A debtor loses all rights to his or her property when

he or she files for bankruptcy. 11 USC 541(a). A party

filing for bankruptcy must list all of his or her assets

on the bankruptcy schedule, 11 USC 521(a)(1), in-

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cluding “all legal or equitable interests of the debtor

in property as of the commencement of the case.” 11

USC 541(a)(1). “[I]t is well established that the

interests of the debtor in property include causes of

action.” Bauer v Commerce Union Bank, 859 F2d 438,

441 (CA 6, 1988) (quotation marks and citations

omitted). Moreover, “the right to pursue causes of

action formerly belonging to the debtor...vests in

the trustee for the benefit of the estate. The debtor

has no standing to pursue such causes of action.” Id.

(quotation marks and citation omitted). The debtor

can only bring suit on a vested asset if the trustee

abandons it or the court gives permission. Kuriakuz v

Community Nat’l Bank of Pontiac, 107 Mich App 72,

75; 308 NW2d 658 (1981).

A cause of action that is known about and filed before

the filing of bankruptcy is an asset and properly belongs

to the bankruptcy estate whether or not it was listed on

the schedule. Id. at 74-75. A cause of action is also an

asset that properly belongs to the estate where a party

has reason to know of the potential for the cause of

action before the filing of bankruptcy and the suit is

filed during the bankruptcy proceedings. See Miller v

Chapman Contracting, 477 Mich 102, 104; 730 NW2d

462 (2007).

Here, plaintiff was aware of the dispute she had with

the bank before the bankruptcy filing. Letters were

exchanged between plaintiff and the bank and plain-

tiff’s attorney both before and during the bankruptcy

proceedings. However, plaintiff filed for bankruptcy and

the bankruptcy was discharged before she filed the

present lawsuit.

While no Michigan cases have considered this exact

situation, other jurisdictions agree that any potential

causes of action must be listed on the schedule. The

144 294 M

ICH

141 [Sept

United States Court of Appeals for the Sixth Circuit

held that where the party clearly knew the factual basis

for the allegations of a sexual harassment claim but did

not disclose that information to the bankruptcy court,

that claim was an asset properly belonging to the

bankruptcy estate. White v Wyndham Vacation Owner-

ship, Inc, 617 F3d 472, 484 (CA 6, 2010).

The United

States Court of Appeals for the Fifth Circuit is even

more explicit, describing the debtor’s “duty to disclose

all assets, including contingent and unliquidated

claims.” In re Coastal Plains, Inc, 179 F3d 197, 208 (CA

5, 1999).

The debtor need not know all the facts or even the legal

basis for the cause of action; rather, if the debtor has

enough information...prior to confirmation to suggest

that it may have a possible cause of action, then that is a

“known” cause of action such that it must be disclosed. [Id.

(citations and some quotation marks omitted).]

Plaintiff cites Eubanks v CBSK Fin Group, Inc, 385

F3d 894 (CA 6, 2004), for the proposition that an

inadvertent omission of a claim in prior bankruptcy

proceedings should not be judicially estopped. Id.at

899. Employing Eubanks, the White court noted:

[T]o support a finding of judicial estoppel, we must find

that: (1) White assumed a position that was contrary to the

one that she asserted under oath in the bankruptcy pro-

ceedings; (2) the bankruptcy court adopted the contrary

position either as a preliminary matter or as part of a final

disposition; and (3) White’s omission did not result from

mistake or inadvertence. In determining whether White’s

conduct resulted from mistake or inadvertence, this court

considers whether: (1) she lacked knowledge of the factual

basis of the undisclosed claims; (2) she had a motive for

concealment; and (3) the evidence indicates an absence of

Federal caselaw is not binding precedent, but may be persuasive.

Sharp v City of Lansing, 464 Mich 792, 803; 629 NW2d 873 (2001).

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bad faith. In determining whether there was an absence of

bad faith, we will look, in particular, at White’s “attempts”

to advise the bankruptcy court of her omitted claim.

[White, 617 F3d at 478.]

In Eubanks, the bankrupt party made multiple at-

tempts to amend the schedule and provide documenta-

tion of the potential dispute and repeatedly contacted

the trustee to clarify the position of the suit. In con-

trast, the bankrupt party in White made what the court

characterized as “limited and ineffective attempts to

correct her initial misfiling....”White, 617 F3d at 480.

The White court noted that these attempts included an

application to employ counsel, an affidavit, and eventu-

ally an amendment to her “ ‘Statement of Financial

Affairs.’ ” Id.

Here, the efforts made by plaintiff to correct the

record were weak in comparison to the examples in

Eubanks and even in White. Plaintiff’s only attempt to

correct the record was during one hearing, where plain-

tiff mentioned to the trustee that she was in a fight with

the bank, which was confirmed by her bankruptcy

attorney. However, according to plaintiff’s brief on

appeal, later in that same meeting, plaintiff responded

“No” when asked if she had any lawsuits or claims.

There is no record of any follow-up effort made by

either plaintiff or her attorney. There is no indication

that documentation was provided to the trustee or that

any effort was made by plaintiff to amend her schedule.

Plaintiff’s failure to inform the bankruptcy court, and

thus to correct her misfiled schedule, distinguishes this

case from Eubanks.

Because plaintiff clearly was aware that she was in

a dispute with the bank regarding the foreclosure

when she filed for bankruptcy, the trial court properly

considered it an asset of the bankruptcy estate.

146 294 M

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141 [Sept

Plaintiff can only bring suit on an asset that is part of

the bankruptcy estate if that asset has been aban-

doned or she is given permission by the bankruptcy

court. Kuriakuz, 107 Mich App at 75. It is undisputed

that plaintiff did not receive permission from the

bankruptcy court.

Plaintiff claims that the trustee abandoned the claim

when the trustee filed his report that did not list the

potential lawsuit. However, an unscheduled asset can-

not be abandoned. Id. at 75-77. Plaintiff claims that

because the trustee knew of the claim, he abandoned it

by not administering it elsewhere before filing his

report. Certainly, in order to abandon an asset, the

trustee must know about it. Still, a trustee’s knowledge

of an asset does not create an exception to the rule that

an unscheduled asset cannot be abandoned. The United

States Court of Appeals for the First Circuit stated that

whether the trustee was aware of the asset was irrel-

evant because “the burden is on the debtors to list the

asset....”Jeffrey v Desmond, 70 F3d 183, 186 (CA 1,

1995). The court went on to state:

What matters here is not what the appellants or their

counsel said, it is what they did or, rather, failed to do. The

state court action was not scheduled as an asset at any time

during the bankruptcy proceedings. There is simply no

such concept of “assumed abandonment,” which is essen-

tially what appellants ask us to find. [Id.]

In sum, the lawsuit in issue here is an asset of the

bankruptcy estate because plaintiff knew of this dispute

with the bank at the time she filed for bankruptcy even

though no suit had yet been filed. Because it is an asset

of the bankruptcy estate, plaintiff does not have stand-

ing to bring suit unless this claim was abandoned. An

unscheduled asset cannot be abandoned even if the

2011] Y

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trustee knows of its existence. Therefore, the trial court

did not err by dismissing this case on the basis that

plaintiff lacks standing.

Affirmed.

M. J. K

ELLY

,P.J., and O

WENS

and B

ORRELLO

,JJ.,

concurred.

148 294 M

ICH

141 [Sept

MACOMB COUNTY v AFSCME COUNCIL 25 LOCALS 411 AND 893

Docket No. 296416. Submitted May 10, 2011, at Lansing. Decided

September 20, 2011, at 9:05 a.m. Leave to appeal granted, 491

Mich 915.

AFSCME Council 25 Locals 411 and 893, the International Union

UAW Locals 412 and 889, and the Michigan Nurses Association

filed an unfair labor practice with the Michigan Employment

Relations Commission (MERC) against Macomb County, the Ma-

comb County Road Commission, and the Macomb Circuit Court,

alleging that respondents had lowered their pension benefits

without bargaining on the issue as required by the public employ-

ment relations act (PERA), MCL 423.201 et seq. The parties’

respective collective-bargaining agreements (CBAs) provided em-

ployees with various pension plan options, including one in which

payments terminated at the death of the employee (straight-life

pension) and another in which pension benefits continued until

the death of both the employee and his or her spouse (joint-and-

survivor pension). A Macomb County retirement ordinance man-

dated that the optional joint-and-survivor benefit be the actuarial

equivalent of the standard straight-life benefit. A 100 percent

female/zero percent male blended mortality table was used to

calculate the joint-and-survivor monthly pension benefits from

1982 through 2006, when respondents adopted a different mortal-

ity table for calculating those benefits after determining that use

of the 100 percent female table resulted in higher pension benefits

for those employees who chose the joint-and-survivor pension

option. The monthly joint-and-survivor pension benefit was re-

duced under the new mortality table. The hearing referee deter-

mined that under PERA, respondents had a duty to bargain over

the method by which the joint-and-survivor pension benefits were

determined even though the pension plan was administered by an

independent board. She further concluded that respondents’ duty

to bargain had been satisfied because the CBAs fully covered the

issue of retirement benefit calculations and that although the

meaning of the term “actuarially equivalent” in the CBAs and the

ordinance was ambiguous, respondents’ unilateral change in the

benefits paid under the joint-and-survivor pension plan did not

constitute an unfair labor practice. The MERC reversed, conclud-

ing that the term “actuarially equivalent” in the CBAs was

2011] M

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25 149

ambiguous and as such did not contain the parties’ entire agree-

ment with respect to pension benefits. It found that the use of the

100 percent female mortality table over a 24-year period consti-

tuted a tacit agreement that the practice would continue and that

respondents’ unilateral change in the mortality table used to

calculate pension benefits constituted an unfair labor practice.

Respondents appealed.

The Court of Appeals held:

1. A public employer has a duty to bargain in good faith over

the wages, hours, and other terms and conditions of employment,

MCL 423.215(1). Under MCL 423.210(1)(e), a public employer

commits an unfair labor practice when it refuses to bargain in good

faith regarding a mandatory subject of collective bargaining or

takes unilateral action on the subject absent an impasse in

negotiations. A public employer also commits an unfair labor

practice if, before bargaining, it unilaterally alters or modifies a

term or condition of employment unless the employer has fulfilled

its statutory obligation or been freed from it. An employer may not

remove a subject of mandatory bargaining from PERA’s require-

ments by assigning its management to a body not controlled by

PERA. Retirement or pension benefits and the methods of calcu-

lating them are mandatory subjects of collective bargaining. The

MERC correctly determined that even though the retirement

ordinance granted the Macomb County Retirement Commission

the authority to adopt the actuarial assumptions used to calculate

retirement benefits, the actuarial assumptions used to calculate

the optional forms of pension-benefit payments under the terms of

the CBAs were subject to mandatory bargaining under PERA.

2. When a term in a CBA is unambiguous, a past practice may

constitute a term or condition of employment only if it is so widely

acknowledged and mutually accepted that it amends the contract,

that is, if the parties had a meeting of the minds with respect to the

new terms or conditions so that there was an agreement to modify

the contract. If the term is ambiguous, then a tacit agreement that

a past practice will continue renders that practice a term or

condition of employment that cannot be unilaterally altered. The

phrase “actuarial equivalence” was not defined in the CBAs, and

MERC properly determined it was ambiguous. Expert testimony

established that “actuarial equivalence” did not unequivocally

mean “equal in value.” The past practice of accepting the specific

mortality table for calculation of joint-and-survivor pensions con-

stituted a tacit agreement with respect to the application of the

term “actuarial equivalence” as used in the CBAs that could not be

unilaterally altered. The MERC’s findings were supported by

150 294 M

ICH

149 [Sept

competent, material, and substantial evidence on the whole

record. Moreover, the retirement commission adopted the use of

the 100 percent female mortality table with knowledge that its use

would increase costs. Even if “actuarial equivalence” unambigu-

ously meant “equal in value,” the parties’ practices over a 24-year

period modified the contract and could not be unilaterally altered.

Affirmed.

ARKEY

,P.J., dissenting, would have held that the retirement

commission did not commit an unfair labor practice when it

adopted a new mortality table for calculating pension benefits that

resulted in a reduction in monthly benefits to those employees who

had chosen the joint-and-survivor pension plan. The matter was

not subject to mandatory bargaining under PERA. Judge M

ARKEY

concluded that even though not defined in the statute, retirement

ordinance, or the CBAs, the term “actuarial equivalent” was not

ambiguous. Rather, the term could be defined by looking at

dictionary terms and meant that the optional joint-and-survivor

pension benefits must be equal in value to the straight-life benefit

on the basis of mortality statistical data. Using the 100 percent

female mortality table from 1982 through 2006 erroneously re-

sulted in the optional joint-and-survivor pension monthly benefit

being more valuable than the straight-life benefit, which was

contrary to the plain terms of the CBAs and the retirement

ordinance and resulted in more benefits being paid for by the

retirement system than provided in the CBAs. This discrepancy in

value violated MCL 46.12a(1)(b), which relates to county pension

plans and requires uniformity in pension benefits for all persons in

the same general class or classification. Accordingly, Judge M

ARKEY

would have held that respondents did not violate MCL

423.210(1)(e) and that the unfair labor practice charges should

have been dismissed. Judge M

ARKEY

further concluded that respon-

dents satisfied their duty to bargain in good faith because the

retirement benefits and the methods used to calculate them were

covered by the parties’ CBAs. She disagreed that there was

sufficient evidence to find that the parties amended their CBAs by

the past practice of using the 100 percent female mortality table to

calculate the straight-life and optional joint-and-survivor pension

benefits. Respondents’ longtime overpayment of optional joint-

and-survivor monthly pension benefits that were not the actuarial

equivalent of straight-life pensions did not overcome the express

language of the CBAs, and the retirement ordinance vested

authority in the commission to adopt mortality tables and rates of

interest necessary on an actuarial basis.

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1. L

ABOR

ELATIONS —

UBLIC

MPLOYEES —

OLLECTIVE

ARGAINING —

ANDA-

TORY

UBJECTS OF

ARGAINING —

NFAIR

ABOR

RACTICES

A public employer has a duty under the public employment relations

act (PERA) to bargain in good faith over the wages, hours, and

other terms and conditions of employment; a public employer

commits an unfair labor practice when it refuses to bargain in good

faith regarding a mandatory subject of collective bargaining, takes

unilateral action on the subject absent an impasse in negotiations,

or before bargaining unilaterally alters or modifies a term or

condition of employment unless the employer has fulfilled its

statutory obligation or been freed from it; an employer may not

remove a subject of mandatory bargaining from the requirements

of PERA by assigning its management to a body not controlled by

PERA (MCL 423.10[1][e], 423.215[1]).

2. L

ABOR

ELATIONS —

OLLECTIVE

ARGAINING —

ANDATORY

UBJECTS OF

ARGAINING —

ETIREMENT AND

ENSION

ENEFITS

Retirement or pension benefits and the methods of calculating them

are mandatory subjects of collective bargaining.

3. L

ABOR

ELATIONS —

OLLECTIVE

ARGAINING —

AST

RACTICES —

MEND-

MENTS OF

ONTRACT

When a term in a collective-bargaining agreement is unambiguous,

a past practice may constitute a term or condition of employment

only if it is so widely acknowledged and mutually accepted that it

amends the contract, that is, that the parties had a meeting of the

minds with respect to the new term or condition so that there was

an agreement to modify the contract; if the term is unambiguous,

a tacit agreement that a past practice will continue renders that

practice a term or condition of employment that cannot be

unilaterally altered.

McConaghy & Nyovich, P.L.L.C. (by Timothy K. Mc-

Conaghy), for Macomb County, the Macomb County

Road Commission, and the Macomb Circuit Court.

Miller Cohen, P.L.C. (by Bruce A. Miller and Richard

G. Mack, Jr.), for AFSCME Council 25 Locals 411 and

893.

Georgi-Ann Bargamian for International Union

UAW Locals 412 and 889.

152 294 M

ICH

149 [Sept

Anita Szczepanski and Lisa Harrison for the Michi-

gan Nurses Association.

Before: M

ARKEY

,P.J., and F

ITZGERALD

and S

HAPIRO

,JJ.

HAPIRO

, J. Respondents-appellants employ members

of the charging party-appellee labor unions. Pursuant to

their respective collective-bargaining agreements (CBAs),

respondents provide pension benefits to their employees.

The CBAs provide the employees with various pension

plan options, including one in which payments terminate

at the death of the employee (straight-life pension) and

another in which pension benefits continue until the

death of both the employee and his or her spouse (joint-

and-survivor pension or optional benefits plan). Since

1982, a particular mortality table was used to calculate the

joint-and-survivor-pension monthly benefit. In 2006, re-

spondents adopted a different mortality table for calculat-

ing those benefits, thereby reducing the monthly pension

benefit paid under the joint-and-survivor plan. The charg-

ing parties filed a claim with the Michigan Employment

Relations Commission (MERC), asserting that respon-

dents committed an unfair labor practice (ULP) by low-

ering pension benefits without bargaining on the issue as

required by the public employment relations act (PERA),

MCL 423.201 et seq. The MERC agreed that respondents’

unilateral actions constituted a ULP, ordered respondents

to bargain on the issue, and held that until an agreement

is reached, the joint-and-survivor pension benefits must

be calculated under the mortality table adopted in 1982.

We affirm.

I. UNDERLYING FACTS

The Macomb County Employees’ Retirement System

Ordinance (the retirement ordinance) provides pension

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benefits for employees who are members of the system.

Before 1982, calculation of optional joint-and-survivor

pension benefits included consideration of the gender of

the retiree because the average lifespans of women and

men differed. In 1978, the United States Supreme

Court held that the usage of separate tables constituted

unlawful gender discrimination. Los Angeles Dept of

Water & Power v Manhart, 435 US 702; 98 S Ct 1370; 55

L Ed 2d 657 (1978). The Michigan Attorney General

then issued an opinion that public pension systems

must adopt gender-neutral mortality tables. OAG,

1981-1982, No 5846, p 29 (January 22, 1981) (“[A]dop-

tion of a sexually-neutral retirement table by the

[county] would comport with federal and state law.”).

In 1982, in response to this change in the law, the

Macomb County Retirement Commission asked its ac-

tuary, Gabriel, Roeder and Smith (GRS), to study the

effect on the retirement system if it adopted a single

mortality table for all future retirees based on a blend-

ing of male and female mortality tables into one gender-

neutral, or unisex, table. GRS’s report explained that

doing so would result in a range of outcomes. To the

degree that the blend was weighted toward male mor-

tality rates, the result would be “substantially lower

benefits than at present for women electing a joint and

survivor benefit[.]”

To the degree that the blend was

weighted toward female rates, it would result in an

increase in costs because it would increase benefits to

male retirees greater than the reduction in benefits to

female retirees. The report went on to note that the

This includes employees who are not represented by the unions.

The opinion also included a discussion of “actuarially equivalent,”

although in a different context than at issue here, but noted that the term

was undefined.

This would also result in slightly higher benefits being paid to men

than had been paid to that date.

154 294 M

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149 [Sept

PINION OF THE

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only way to “make sure that no participant will receive

a lesser benefit than under present procedures” was to

adopt a gender-neutral table with a 100% female/0%

male blend of mortality rates. The report outlined the

specific additional costs to the system using this and

several other blends of the male and female mortality

tables and offered them as options to the retirement

commission. Though cognizant of the increase in over-

all costs to the retirement system, the retirement

commission adopted the 100% female/0% male mortal-

ity blend as its gender-neutral mortality table.

The 1982 GRS report also noted that the retirement

ordinance required that the optional joint-and-survivor

benefit be “the actuarial equivalent” of the standard

straight-life benefit. Accordingly, the report recom-

mended adopting a specific rule to govern the meaning

of actuarial equivalence in the context of optional

benefits. The report recommended adoption of a rule

stating that “for purposes of determining amounts of

optional benefits, the actuarial equivalent will be based

upon a stipulated interest rate and unisex mortality

table.” Section 15 of the retirement ordinance was

thereafter amended to read:

The Retirement Commission shall from time to time

adopt such mortality and other tables of experience, and a

rate or rates of regular interest, as are necessary in the

Retirement System on an actuarial basis. For purposes of

determining actuarial equivalent Retirement Allowances,

the Retirement Commission is currently using a 7

interest rate and a blending of male and female rates based

on the 1971 group annuity mortality table projected to

1984 with ages set back 2 years....[Emphasis added.]

The retirement commission continued to use the

same mortality table for 24 years. However, in 2006, in

response to another study conducted by GRS, the

retirement commission adopted a new gender-neutral

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mortality table, effective July 1, 2007, which, among

other things, changed the assumed ratio of retirees

selecting the joint-and-survivor plan from 100%

female/0% male to 60% male/40% female. This had the

result of lowering the monthly retirement benefit for

those under the joint-and-survivor pension. The charg-

ing parties demanded bargaining over the change. Re-

spondents rejected the demand, and the charging par-

ties filed ULP charges with the MERC asserting a

violation of respondents’ duty under § 10(1)(e) of

PERA, MCL 423.210(1)(e), to bargain over benefits.

Although the hearing referee and the MERC reached

different rulings, they agreed on two preliminary ques-

tions. First, that under PERA, respondents have a duty

to bargain over the method by which the joint-and-

survivor pension benefits are determined. Second, they

agreed that this duty to bargain was not eliminated by

the fact that the pension plan is administered by an

independent board.

The hearing referee and the MERC disagreed about

whether the CBAs fully covered the issue of retirement-

benefit calculations so as to satisfy the respondents’

duty to bargain. The hearing referee found that this did

because the CBAs incorporated § 26 of the ordinance,

which describes the optional joint-and-survivor benefits

as “actuarially equivalent” to the straight-life benefits.

The hearing referee found that the term “actuarially

equivalent” represented a bargained benefit and that,

although the meaning of the term “actuarially equiva-

lent” as used by the parties was ambiguous, respon-

dents’ unilateral change in the benefits paid under the

optional joint-and-survivor plan did not give rise to a

ULP.

The hearing referee apparently concluded that this ambiguity in

contract language could be resolved through grievance arbitration and

156 294 M

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PINION OF THE

OURT

The MERC concluded that because the term “actu-

arially equivalent,” as used in the CBAs, was ambigu-

ous, the CBAs did not “contain the entirety of the

parties’ agreements with respect to pension benefits.”

It went on to conclude that the 24-year practice of using

the 100 percent female mortality table constituted a

“tacit agreement that the practice would continue.”

found, therefore, that the unilateral change in the

mortality tables used to calculate benefits constituted a

ULP.

II. STANDARD OF REVIEW

The MERC’s findings of fact are conclusive if sup-

ported by competent, material, and substantial evi-

dence on the record considered as a whole. MCL

423.216(e); Const 1963, art 6, § 28; Amalgamated Tran-

sit Union, Local 1564, AFL-CIO v Southeastern Mich

Transp Auth, 437 Mich 441, 450; 473 NW2d 249 (1991).

Indeed, appellate review of those findings must be

undertaken with sensitivity because of the administra-

tive expertise of the MERC. Amalgamated Transit, 437

Mich at 450; Gogebic Community College Mich Ed

Support Personnel Ass’n v Gogebic Community College,

246 Mich App 342; 348-349; 632 NW2d 517 (2001). The

that, therefore, a unilateral change in optional retirement benefits did

not give rise to a ULP. However, even if the hearing referee was correct

that the matter could give rise to a grievance, this would not eliminate

the presence of a ULP under PERA. In Bay City Sch Dist v Bay City Ed

Ass’n, Inc, 425 Mich 426, 436-437; 390 NW2d 159 (1986), our Supreme

Court held that “[w]here a controversy gives rise to both contractual and

statutory claims..., grievants have been allowed to pursue different

avenues of relief in different fora.” If contractual and statutory claims

arise out of the same controversy, parallel proceedings are permitted. Id.

at 437-440.

The hearing referee did not address whether the use of a particular

mortality table for 24 years represented a past practice rising to the level

of a term or condition of employment.

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MERC’s legal rulings, however, are not accorded the

same deference as its factual findings. “Legal rulings of

an administrative agency are set aside if they are in

violation of the constitution or a statute, or affected by

a substantial and material error of law.” Amalgamated

Transit Union, 437 Mich at 450. Of course, whether an

error of law has occurred and, if so, whether it is

substantial and material are legal questions subject to

review de novo. Mich Ed Ass’n v Christian Bros Insti-

tute of Mich, 267 Mich App 660, 663; 706 NW2d 423

(2005). Also subject to review de novo are issues of

statutory interpretation, Kent Co Deputy Sheriffs Ass’n

v Kent Co Sheriff, 463 Mich 353, 357 n 8; 616 NW2d 677

(2000), as well as whether contract language is ambigu-

ous and the meaning of unambiguous contract lan-

guage, Port Huron Ed Ass’n v Port Huron Area Sch

Dist, 452 Mich 309, 323; 550 NW2d 228 (1996).

III. ANALYSIS

In this appeal, we must determine whether respon-

dents violated their duty to bargain when they adopted

new mortality tables to calculate joint-and-survivor

benefits under the CBAs that had the result of reducing

the monthly benefits paid under the joint-and-survivor

plan. A public employer commits an unfair labor prac-

tice if it refuses to bargain in good faith regarding a

mandatory subject of collective bargaining or takes

unilateral action on the subject absent an impasse in

the negotiations. MCL 423.210(1)(e); Detroit Police Of-

ficers Ass’n v Detroit, 391 Mich 44, 54-55; 214 NW2d

803 (1974). A public employer also “commits an unfair

labor practice if, before bargaining, it unilaterally alters

or modifies a term or condition of employment, unless

the employer has fulfilled its statutory obligation or has

been freed from it.” Port Huron, 452 Mich at 317.

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A. MANDATORY BARGAINING

Under § 15 of PERA, MCL 423.215(1), a public

employer has a duty to bargain in good faith over

subjects found within the scope of the phrase “wages,

hours, and other terms and conditions of employment.”

See Detroit Police Officers Ass’n, 391 Mich at 54. The

duty to bargain in good faith also extends to officers and

agents of public employers. MCL 423.210(1).

Respondents assert that they have no duty to bargain

over actuarial assumptions because actuarial assump-

tions are the sole fiduciary responsibility of the retire-

ment commission. Although actuarial assumptions

used to determine whether the retirement system is

receiving sufficient contributions to maintain adequate

funding may not be a subject of bargaining, Bd of

Trustees of the Policemen and Firemen Retirement Sys

of Detroit v Detroit, 270 Mich App 74, 82-85; 714 NW2d

658 (2006), the purpose of those assumptions is wholly

different from those used to calculate joint-and-

survivor pension benefits, which, as the hearing referee

concluded, are subject to mandatory bargaining:

[T]he mortality table at issue here, although an “actu-

arial assumption,” is used to calculate the benefits received

by retirees from the system. While Respondents’ contribu-

tions are affected by the choice of the mortality table used

for this purpose, they are also affected by the methods used

to calculate final average compensation. In general, if

benefits rise, so must Respondents’ contributions. I find

that like the methods used to calculate final average

compensation, the mortality table used to calculate joint

and survivor pension benefits is a matter properly within

Respondents’ control and is a mandatory subject of bar-

gaining under PERA.

It is well settled that “ ‘[a]n employer is responsible

for its bargaining obligations regardless of whatever

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actions are taken by an independent pension board.’ ”

Detroit Police Officers Ass’n v Detroit, 212 Mich App

383, 390; 538 NW2d 37 (1995), aff’d 452 Mich 339

(1996) (citation omitted). Moreover, “[i]t is improper for

an employer to remove a subject of mandatory bargain-

ing from the scope of PERA by assigning its manage-

ment to a body insulated from PERA.” Detroit Police

Officers Ass’n, 212 Mich App at 389. Our Supreme

Court explained that the basis for this principle origi-

nates from the supremacy of state law over local ordi-

nances:

The enactment of an ordinance, however, despite its

validity and compelling purpose, cannot remove the duty to

bargain under PERA if the subject of the ordinance con-

cerns the “wages, hours or other terms and conditions of

employment” of public employees. If the [relevant] ordi-

nance were to be read to remove a mandatory subject of

bargaining from the scope of collective bargaining negotia-

tions, the ordinance would be in direct conflict with state

law and consequently invalid. Therefore, if...[the subject

of the ordinance] is a mandatory subject of bargaining, a

city ordinance cannot foreclose collective bargaining on the

subject. [Detroit Police Officers Ass’n, 391 Mich at 58

(citations omitted).]

Retirement or pension benefits and methods of calcu-

lating them are mandatory subjects of collective bar-

gaining. Id. at 63-64; Lieutenants & Sergeants Ass’n v

City of Riverview, 111 Mich App 158, 161; 314 NW2d

463 (1981). Accordingly, the existence of an ordinance

that grants the retirement commission the authority to

adopt the actuarial assumptions used to calculate re-

tirement benefits does not foreclose collective bargain-

ing on the issue, and respondents’ lack of control over

the retirement commission cannot excuse avoiding

mandatory bargaining under PERA. Moreover, respon-

dent Macomb County has the authority to amend the

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ordinance to comply with any term of a bargained agree-

ment and, as just noted, whatever the ordinance may

provide, it cannot foreclose statutorily mandated collec-

tive bargaining.

With regard to the other respondents, we

note the ordinance already provides that union members’

retirement benefits are controlled by the terms of the

members’ pertinent CBA. Macomb County Employees’

Retirement System Ordinance, § 53b.

Accordingly, we hold, as did the hearing referee and

the MERC, that the actuarial assumptions used to

calculate the optional forms of benefit payments under

the terms of the CBAs are subject to mandatory bar-

gaining under PERA.

The dissent agrees with us that employers cannot avoid their duty to

bargain over actuarial assumptions that govern pension-benefit amounts

and that the assumptions in this case must therefore be subject to

bargaining. Curiously, despite its explicit rejection of respondent’s view

that the duty to bargain does not apply, the dissent also observes that

respondent’s position “has merit.” However, other than a brief discussion

of the terms “trustee” and “agent,” the dissent fails to explain what it

finds meritorious in the argument. Indeed, the distinction between the

terms “trustee” and “agent” is fully consistent with the notion that the

retirement commission, as a trustee, may act to secure and manage

reserves in order to ensure the county’s ability to pay the benefits, the

amount of which is exclusively a matter for bargaining between the

county and its employees.

As for the dissent’s concern regarding MCL 46.12a(1)(b), we note that

the language cited by the dissent requires that pension or retirement

benefits be granted “according to a uniform scale for all persons in the same

general class or classification.” It is clear that a uniform scale is being used

here. Each retiree is receiving benefits under the same 100% female/0% male

table. The dissent is concerned that the amounts of benefits ultimately

received are equal, but that is entirely different from whether a uniform

scale is used to calculate the benefits. A nonuniform scale would, for

example, require that the benefits received by men be calculated using a

different mortality table than for those received by women. It was precisely

to adopt a uniform scale that the 100% female/0% male table was adopted for

all employees, even though separate scales for male and female retirees

likely resulted in greater consistency in the actual dollar amount of benefits

received by each retiree.

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B. WHETHER THE CBAs ARE AMBIGUOUS IN THE USE OF

THE TERM “ACTUARIAL EQUIVALENCE”

Whether the term “actuarial equivalence” is am-

biguous or unambiguous determines the standard by

which the past actions of the parties may be seen to

establish a term or condition of employment. If the

term is ambiguous, then a “tacit agreement” that

“past practice will continue” renders that practice a

term or condition of employment that cannot be

unilaterally altered. If the term is unambiguous, then

a past practice may constitute a term or condition of

employment only if it “is so widely acknowledged and

mutually accepted that it amends the contract,” i.e.,

that “the parties had a meeting of the minds with

respect to the new terms or conditions so that there

was an agreement to modify the contract.” Port

Huron, 452 Mich at 312.

The MERC found that because the retirement ordi-

nance does not provide a definition of “actuarial equiva-

lence,” the term is ambiguous. It further found that the

past practice of the use of the 100% female/0% male

table had become a term or condition of employment

under Port Huron and therefore could not be unilater-

ally altered. We agree with the MERC’s conclusion that

the term “actuarial equivalence” is ambiguous. We also

conclude that its findings regarding the past practice

were supported by competent, material and substantial

evidence. Amalgamated Transit Union, 437 Mich at

450.

The only expert testimony in the record regarding

actuarial equivalence was provided by a witness for the

charging parties. The expert testified that as long as the

same assumptions are used for everyone, they are

actuarially equivalent, irrespective of whether the ben-

efits themselves are equal in value:

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Q. So that if I’m 62 and I retire and [someone else] is

65 and he retires, if we live to our life expectancy, we

should get the exact or close as can be calculated the

same amount of pension benefits from the social security

system, right?

A. That’s the goal, correct.

Q. And that goal is known as actuarial equivalence, isn’t

it?

A. I’m not sure. I don’t think so.

***

Q. ...Isityour understanding that [the GRS report is]

saying, look, if you want the surviving spouse options to be

the actuarial equivalent of the single life, here’s what we

do.

A. Well, I’m not entirely sure what they mean by

actuarially equivalent because they are by plan definition

actuarially equivalent.

Q. But the value--

A. The value is different than--I’m sorry. Go ahead.

Q. Correct. We talked about that social security ex-

ample. The value of the benefits were different, right?

A. Yes.

Q. Those were actuarially equivalent?

A. Right.

***

A. Well, by plan definition actuarial equivalence is using

a set of factors, they are equivalent. The plan, when they

value these particular benefits, there’s a greater value to

somebody who elects a life option--I’m sorry, a joint and

survivor option than a life benefit.

***

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A. . . . Individually they’re using factors that are neutral

and by definition they’re actuarially equivalent because

that’s what they have to be.

***

A. Well, in terms of valuating a life benefit and a joint

and survivorship, you can have a stipulated set of factors

that you use in a mortality interest rate and to equate one

form to another using those assumptions, they will be

equal, in other words, they will be actuarially equivalent

based on those assumptions. Like for example, they use the

71 female with a two-year set back. Every option using

those tables is equivalent to every other option.

Q. And even though they’re not going to end up being

equal?

A. Well, now we’re talking about how do we value these

benefits.

Q. Yes.

A. The value of those benefits will not be equal because

you’re using a different set of assumptions to value these

benefits.

Q. That’s what I’m getting at. There’s a difference

between being of equal value and being actuarially equiva-

lent?

A. Right. I mean actuarially equivalent is usually a term

used in a plan document to set the optional forms to another

optional form. The valuation of those optional forms is a

different matter, whole different assumption set. They don’t

have to be different. In most cases they are not the same.

They’re always different.

Q. In most cases the actual valuation is going to be

different than what you came up with to be actuarially

equivalent to start with?

A. Right.

***

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Q. To be actuarially equivalent is really a matter of

choosing what factors that you decide will make it actuari-

ally equivalent, is that right?

A. Right.

Q. Valuation would be I wait and see how long you live.

I see how many dollars. I pay it off. I multiply the years

times the dollars or times the month and that’s a value and

they may not be the same for the same people at all?

A. They may not be the same.

Q. They may be different for male and female?

A. Right.

***

Q. So let me guess. You could end up having benefits

having different values and still be perfectly actuarially

equivalent and plans run that way every day and have for

the last 25 years of your experience?

A. Yes. [Emphasis added.]

It is abundantly clear from this expert testimony that

the MERC had substantial evidence from which to

conclude that the term “actuarial equivalence” as used

in this case did not unambiguously mean “equal in

value.”

The dissent ignores the testimony and documentary evidence of the

parties’ use of the term “actuarial equivalence” and instead elects to

impose its own definition using a dictionary to define the term despite the

fact that the term “actuarial equivalence” cannot be found in the cited

dictionary. Although undefined contract terms are generally interpreted

in accordance with their “commonly used meaning,” Frankenmuth Mut

Ins Co v Masters, 460 Mich 105, 113-114; 595 NW2d 832 (1999), courts

are not to resort to a lay dictionary for specialized terms of art,

particularly in technical fields in which professionals obtain advanced

degrees, see People v Thompson, 477 Mich 146, 151-152; 730 NW2d 708

(2007). For example, we give tax terms their specialized meanings. Prod

Credit Ass’n of Lansing v Dep’t of Treasury, 404 Mich 301, 312; 273

NW2d 10 (1978) (stating that “terms of art” should be interpreted “in

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C. PAST PRACTICE

The MERC concluded that the parties had engaged in

a past practice of accepting a 100% female/0% male

mortality table for calculation of the optional joint-and-

survivor pension and that this practice constituted a

“tacit agreement” with respect to the application of the

term “actuarial equivalence” as used in the contract

that cannot be unilaterally altered. We agree with this

conclusion.

We further conclude that, even if “actuarial equiva-

lence” had the unambiguous meaning of “equal in

value,” the parties’ practices over the subsequent 24

years would have constituted a modification of the

contract that could not be unilaterally altered.

accordance with the experience and understanding of those who would be

expected to use and interpret the act”). Similarly, we routinely accept

testimony about the meaning of medical and engineering terms of art.

Ignoring this rule, the dissent attempts to craft a definition by

breaking the term into component parts, finding definitions for each

word, and then rejoining them. The absurdity of attempting this with a

technical term is evident when one considers medical terms such as “gall

bladder.” The dictionary defines “gall” as “[b]itterness of feeling; rancor”

and “[o]utrageous insolence,” and defines “bladder” as “[a]ny of various

distensible membranous sacs...found in most animals and that serve as

receptacles for fluid or gas.” The American Heritage Dictionary of the

English Language (2001). Adopting the dissent’s approach to defining

terms of art, the legally binding definition of “gall bladder” would be “a

distensible membranous sac found in animals that serves as a receptacle

for bitterness of feeling, rancor, and outrageous insolence.”

The dissent concludes that the MERC’s decision is not supported by

competent, material and substantial evidence. However, we reiterate that

this Court must be extremely deferential when reviewing the MERC’s

factual findings. “ ‘Review of factual findings of the commission must be

undertaken with sensitivity, and due deference must be accorded to

administrative expertise. Reviewing courts should not invade the exclu-

sive fact-finding province of administrative agencies by displacing an

agency’s choice between two reasonably differing views of the evi-

dence.’ ” St Clair Intermediate Sch Dist v Intermediate Ed Ass’n/MEA,

458 Mich 540, 553; 581 NW2d 707 (1998) (citation omitted).

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[T]he unambiguous contract language controls unless

the past practice is so widely acknowledged and mutually

accepted that it amends the contract. The party seeking to

supplant the contract language must show the parties had

a meeting of the minds with respect to the new terms or

conditions so that there was an agreement to modify the

contract. [Port Huron, 452 Mich at 312.]

The record contains the GRS report entitled “Study

Regarding Unisex Mortality Tables,” which was pre-

sented to the retirement commission on July 26, 1982.

The report included discussions regarding the effect of

various actions the commission might take and in-

cluded sample male-female blended morality tables

labeled U1 (90% male/10% female), U2 (75% male/25%

female), U3 (50% male/50% female), and U4 (0%

male/100% female). The added costs of these options to

the retirement system as a percentage of payroll were

estimated as follows: U1 (0.01 percent); U2 (0.19 per-

cent); U3 (0.47 percent); U4 (1.01 percent). The retire-

ment commission adopted the U4 (100 percent female)

mortality table for determining optional joint-and-

survivor benefits under the retirement ordinance. The

retirement commission continued using the 100 percent

female mortality table until 2006.

Respondents claim that the adoption of the 100 percent

female table “unknowingly” created unequal payments

and that “it took a team of actuaries to discover the

overpayments in 2006.” However, this is not borne out by

the record. The initial GRS study that resulted in the

adoption of the 100 percent female table specifically indi-

cated that there would be an increased cost to the system.

In fact, the 100 percent female table created the highest

effect on costs of the four options. In spite of that, the

retirement commission elected to adopt that table. Fur-

ther, as conceded by Macomb County’s finance director,

whatever “inequality” was occurring in 2006 had been

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occurring over the past 24 years. Moreover, the record

indicates that GRS performed an experience study in 1993

to review the actuarial assumptions the system was using

to calculate benefits and did not recommend any changes

to the system.

In any event, § 15 of the retirement ordinance was

amended shortly after the adoption of the 100 percent

female mortality table to read: “For purposes of determin-

ing actuarial equivalent Retirement Allowances, the Re-

tirement Commission is currently using a 7

% interest

rate and a blending of male and female rates based on the

1971 group annuity mortality table projected to 1984 with

ages set back two years.” This amendment was clearly

adopted to set the optional joint-and-survivor benefits at

values that were not strictly “equal in value” to those

provided in the straight-life benefit. The original GRS

plan expressly stated:

COMMENT C: The Retirement System Ordinance pro-

vides that an optional benefit will be “the actuarial equiva-

lent” of the standard benefit. The Retirement Commission

could adopt a rule stating that for purposes of determining

The report stated that it would be reasonable to expect that using a

merged gender table would result in “substantially lower benefits than at

present for women electing a joint and survivor benefit, and slightly

higher benefits than at present for men.” On the other hand, the report

stated that using all female factors for future retirees would “make sure

that no participant will receive a lesser benefit than under present

procedures.” However, this option “would necessarily entail a cost for the

plan since men electing optional forms of payment would be subject to a

smaller reduction in benefits than required on an actuarial basis.” Thus,

the record evidence is that the retirement commission selected the 100

percent female table, even though it resulted in the highest costs to the

system, because it left the female benefits the same and increased the

male benefits, as opposed to adopting some other merged table, which

would have left male benefits the same or better, but reduced female

benefits. This suggests that the selection was made without regard to cost

or whether the options were equal in value, but was instead based on how

the adopted table would affect those receiving the benefits.

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amounts of optional benefits, the actuarial equivalent will

be based upon a stipulated interest rate and unisex mor-

tality table. This could eliminate the need for an ordinance

change.

Indeed, GRS’s 1982 report went on to provide: “[A]

unisex approach subsidizes optional elections for men.

If, in recognition of this, more men elect joint and

survivor benefits than in the past, cost to the system

will be greater than is shown.” Thus, the initial GRS

study both recognized and explicitly informed the

county that adoption of any of the unisex tables could

result in optional joint-and-survivor benefits that were

not equal in value to those of the straight-life benefits.

Rather, every unisex table would, to some degree, create

an approach that resulted in greater benefits for men

making one of the optional elections. The report went

further, suggesting that the retirement commission

adopt language designed to circumvent the equivalence

requirement by providing an open-ended formulaic

definition for “actuarial equivalent” that would be

based on an interest rate and unisex mortality table.

Consequently, assuming respondents’ definition of

“actuarially equivalent” is correct and unambiguous,

the retirement commission’s selection of the 100 per-

cent female table, in conjunction with respondents’

adoption of the suggested language and the continued

use of the 100 percent female table for 24 years, even

after actuarial review in 1993, represented a “definite,

certain, and intentional” modification of the actuarial

equivalent requirement that was “unequivocal.”

See

The dissent contends that the parties’ knowledge that the benefits

were unequal was insufficient to amend the parties’ agreement, citing

Port Huron, 452 Mich at 332. We agree. That is why we have relied not

simply on their knowledge, but their actions to find evidence of an

unequivocal modification. We also note that in Port Huron, the Court

held that there was no evidence that the district had intentionally taken

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Port Huron, 452 Mich at 329. The acceptance of this

provision is clear from the language in the controlling

CBAs, which provide that retirement benefits are to be

continued “as presently constituted,” i.e., in accordance

with the 100% female/0% male mortality table.

The evidence presented showed that, despite respon-

dents’ claim that the clear terms of the CBAs required

that the joint-and-survivor pension be “equal in value” to

the straight-life pension, for 24 years—from adoption

until 2006—the parties continuously used the 100 percent

female mortality table without regard to whether it would

create equal-in-value pensions. Accordingly, even were

respondents correct that the term “actuarial equivalence”

as used by the parties was unambiguous, we would still

find for the charging parties because the usage of the 100

percent female mortality table was “so widely acknowl-

edged and mutually accepted that it creat[ed] an amend-

ment to the contract.”

Port Huron, 452 Mich at 329.

actions contrary to the agreements; rather, they happened by happen-

stances or oversight. Id. at 332 n 22. Such is clearly not the case here,

where there is no happenstance or oversight, but deliberate acceptance

based on a clear understanding of the implications. We reject the dissent’s

conclusion that the GRS reports cannot establish respondents’ intent

because it was respondents that incorporated language identical to that

from the GRS report in the ordinance establishing the adoption of the

100 percent female table. Ironically, the dissent asserts that the 1982

GRS report cannot establish respondents’ intent in the same footnote

that it acknowledges respondents’ amendment of the retirement ordi-

nance in accordance with the report’s recommendation. The amendment

is necessarily tied to the report. Accordingly, it is appropriate to use it in

determining their intent. In any event, the dissent fails to provide or cite

any facts in the record that are inconsistent with the MERC’s findings.

The dissent alludes to the fact that not permitting the retirement

commission to change the actuarial tables used to calculate the retire-

ment benefits could potentially destabilize the retirement funds. How-

ever, there is no evidence in the record to support such an assertion, nor

has the commission concluded that additional funding is either necessary

or unavailable. Thus, the dissent’s expression of concern about the

financial stability of the retirement system appears to be intended to

inflame rather than clarify. Moreover, our conclusion that the parties had

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IV. CONCLUSION

In sum, we agree with the MERC that the term

“actuarial equivalence” is ambiguous and that a past

practice of accepting a 100% female/0% male mortality

table constituted a tacit agreement by the parties that

that table would continue to be used. We further conclude

that, even if “actuarial equivalence” had the unambiguous

meaning of “equal in value,” there was sufficient evidence

of a meeting of the minds that the 100% female/0% male

table was accepted for calculating pension benefits in lieu

of any “equal in value” requirement that the table could

not be unilaterally changed. Accordingly, we agree with

the MERC that “[r]espondents violated their duty to

bargain when, without bargaining, they changed the

method used to calculate joint and survivor benefits under

the parties’ collective bargaining agreements.”

Affirmed.

ITZGERALD

, J., concurred with S

HAPIRO

,J.

a past practice of using the 100 percent female table does not prevent the

parties from selecting a new table. It merely requires that they do so at

the bargaining table rather than by a unilateral change.

Finally, the dissent’s claim that the use of a gender-neutral table

based on a 100 percent female assumption results in inequities consti-

tutes a criticism of using a gender-neutral table at all. Any gender-

neutral table will invariably result in some difference in payments given

that women in fact do generally live longer than men and that this reality

cannot, by definition, be reflected in a gender-neutral table. Moreover,

the dissent’s assertion that the commission “did not accept a sex-blended

mortality table until 2006” is simply wrong. A 100 percent female table is

still a sex-blended mortality table; the blending just assumes zero percent

men. What makes it a sex-blended table is that the same assumptions are

used for everyone, as opposed to having different tables to calculate

benefits for men and women.

In light of our conclusion, we do not address the charging parties’

claim that respondents had a separate duty to bargain over the effects of

implementing the new mortality table.

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ARKEY

,P.J. (dissenting). I respectfully dissent. I

conclude that respondents did not commit an unfair

labor practice (ULP) when the Macomb County Retire-

ment Commission adopted new mortality tables to

ensure that optional retirement benefits that include

payment to a surviving beneficiary are the actuarial

equivalent of the negotiated defined-benefit straight-

life pension. I would hold that the retirement commis-

sion is vested with the authority to determine mortality

tables and actuarial assumptions necessary to ensure

“actuarial equivalence” of optional retirement benefits,

and that the matter is not subject to mandatory bar-

gaining under the public employment relations act

(PERA), MCL 423.201 et seq. But even if it is, the

matter was “covered by” the parties’ collective bargain-

ing agreements (CBAs); consequently, respondents sat-

isfied their duty to bargain in good faith. I would also

hold that the Michigan Employment Relations Commis-

sion (MERC) erred by ruling that the parties had tacitly

amended the clear and unambiguous language of the

parties’ contracts. The MERC’s finding is not supported

by competent, material, and substantial evidence on the

whole record. I conclude that it is a substantial and

material error of law. Because this Court cannot cure

these errors by conducting its own fact-finding under

the higher standard required to overcome the clear and

unambiguous terms of the parties’ CBAs, I would

reverse and remand for dismissal of the ULP charges.

I. ANALYSIS

Respondents assert three arguments on appeal.

First, respondents argue that the hearing referee cor-

rectly determined that respondents had satisfied their

duty to bargain in good faith because the matters the

charging parties wished to negotiate were already “cov-

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,P.J.

ered by” the CBAs. Second, respondents contend that

the MERC’s decision is unsupported by evidence or

legal authority and that the mistaken overpayment of

optional benefits with rights of survivorship greater

than the “actuarial equivalent” of a straight-life benefit

cannot tacitly amend the unambiguous language of the

CBAs or the Macomb County Employees’ Retirement

System Ordinance (the retirement ordinance or the

ordinance). Respondents assert that, at best, the charg-

ing parties have alleged a breach of a disputed term of

the CBAs for which the contract remedy of arbitration

is available. Finally, respondents argue that they have

no duty to bargain over actuarial assumptions that are

within the sole discretion of the commission and that

such bargaining might threaten the financial integrity

of the pension system. The commission, respondents

assert, must be able to determine actuarial assumptions

to fulfill its statutory fiduciary duty to maintain the

financial integrity of the pension system. Respondents

argue that actuarial equivalence cannot have varying

bargained definitions and that the determination of

actuarial assumptions to ensure that optional benefits

are the actuarial equivalent of bargained defined ben-

efits is a fiduciary responsibility vested in the commis-

sion by both the ordinance and the CBAs. I agree.

A. MANDATORY BARGAINING

The primary question presented in this appeal is

whether the actuarial assumptions made to ensure that

optional forms of benefit payments are the actuarial

equivalent of straight-life retirement benefits deter-

mined under the terms of the CBAs are subject to

mandatory bargaining under PERA. The hearing ref-

eree, the MERC, and the majority reject respondents’

contention that they have no duty to bargain over

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actuarial assumptions because they lacked control over

the issue, citing Detroit Police Officers Ass’n v Detroit,

391 Mich 44; 214 NW2d 803 (1974), and Detroit Police

Officers Ass’n v Detroit, 212 Mich App 383; 538 NW2d

37 (1995), aff’d 452 Mich 339 (1996). I agree that

respondents cannot, on the basis of lack of control over

the retirement commission, avoid their duty to bargain

in good faith if the actuarial assumptions at issue are

mandatory subjects of collective bargaining under

PERA. See Detroit Police Officers Ass’n, 391 Mich at 58;

Detroit Police Officers Ass’n, 212 Mich App at 389-390.

However, I agree with respondents and conclude that

the actuarial assumptions the commission uses to en-

sure that optional forms of benefit payments are the

actuarial equivalent of the bargained primary straight-

life retirement benefit are not mandatory topics of

bargaining within the meaning of “wages, hours, and

other terms and conditions of employment” under MCL

423.215(1).

PERA extends its duty to bargain in good faith over

“wages, hours, and other terms and conditions of em-

ployment,” MCL 423.215(1), to public employers “or an

officer or agent of a public employer,” MCL 423.210(1).

PERA does not define “public employer,” but it may be

inferred from the definition of “public employee,” MCL

423.201(e), that “public employer” includes the govern-

ment of this state, the government of one of its political

subdivisions, or boards, commissions, public school dis-

tricts or any other branch of the public service that

appoints or employs persons. The general characteris-

tics of employers are “(1) that they select and engage

the employee; (2) that they pay the wages; (3) that they

have the power of dismissal; and (4) that they have

power and control over the employee’s conduct.” Sagi-

naw Stage Employees, Local 35, IATSE v City of Sagi-

naw, 150 Mich App 132, 134-135; 387 NW2d 859 (1986).

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Consequently, the retirement commission is not the

public employer of the charging parties’ members, so

the commission has no duty to bargain with the charg-

ing parties regarding terms and conditions of employ-

ment unless the commission acts as the agent of respon-

dents.

An “agent” is “ ‘a person having express or implied

authority to represent or act on behalf of another

person, who is called his principal.’ ” Stephenson v

Golden, 279 Mich 710, 734; 276 NW 849 (1937), quoting

Bowstead, Agency (4th ed), p 1. Similarly, Black’s Law

Dictionary (8th ed) defines “agent” as “[o]ne who is

authorized to act for or in place of another[.]” On the

other hand, a trustee is not an agent. “ ‘An agent

represents and acts for his principal, who may be either

a natural or artificial person. A trustee may be defined

generally as a person in whom some estate, interest, or

power in or affecting property is vested for the benefit

of another.’ ” Bankers Trust Co of Detroit v Russell, 263

Mich 677, 682; 249 NW 27 (1933), quoting Taylor v

Davis’ Administratrix, 110 US 330, 334-335;4SCt147;

28 L Ed 163 (1884).

The facts and law in this case establish that the

retirement commission is a trustee, not an agent. “If a

county establishes a plan for the payment of pension

and retirement benefits to its employees pursuant to

this section, the county board of commissioners may

provide for a board of trustees to administer the plan

and for the manner of election or appointment of the

members of the board of trustees.” MCL 46.12a(12).

The retirement ordinance creates and vests the retire-

ment commission with “the general administration,

management and responsibility for the proper opera-

tion of the Retirement System, and for construing and

making effective the provisions of this Ordinance.”

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Macomb County Employees’ Retirement System Ordi-

nance, § 3. It is undisputed that the commission has

never represented respondents in its bargaining with

the charging parties; respondents have not authorized

the commission to bargain on their behalf with repre-

sentatives of their employees. Thus, as respondents

argue, they cannot directly control decisions made by

the commission. But neither may respondents avoid

their duty to bargain in good faith on this basis if the

actuarial assumptions at issue are mandatory subjects

of bargaining under PERA.

I also conclude that the hearing referee properly

rejected respondents’ policy argument on the basis of

MCL 46.12a(11), which requires that if the county

establishes a pension plan, it “shall establish and main-

tain reserves on an actuarial basis in the manner

provided in this subsection sufficient to finance the

pension and retirement and death benefit liabilities

under the plan and sufficient to pay the pension and

retirement and death benefits as they become due.” The

hearing referee distinguished actuarial assumptions

used to determine whether the retirement system is

adequately funded, which are not the subject of bar-

gaining, Bd of Trustees of the Policemen and Firemen

Retirement Sys of Detroit v Detroit, 270 Mich App 74;

714 NW2d 658 (2006), from those used to calculate

pension benefits with survivorship rights.

Even though I reject respondents’ arguments regard-

ing their lack of control and based on MCL 46.12a(11),

I conclude that other reasons support a finding that

actuarial assumptions necessary to ensure that optional

forms of pension benefits are the “actuarial equivalent”

of bargained straight-life retirement benefits are not

mandatory subjects of bargaining under PERA. I be-

lieve these reasons justify finding that the retirement

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commission has the responsibility under state law, as

well as the retirement ordinance and the CBAs, to

ensure that optional forms of pension benefits payable

to similarly situated retirees are actuarially equivalent.

I disagree with the MERC and the majority that the

term “actuarial equivalent” might be ambiguous be-

cause it is not defined in either the retirement ordi-

nance or state law. A term in a statute or contract is not

rendered ambiguous because it is undefined. Rather,

words are construed according to their plain and ordi-

nary meaning, with consultation of a dictionary if

necessary, unless it is clear a term is a legal term of art

having peculiar meaning. Brackett v Focus Hope, Inc,

482 Mich 269, 276; 753 NW2d 207 (2008); Terrien v

Zwit, 467 Mich 56, 76; 648 NW2d 602 (2002).

The Random House Webster’s College Dictionary

(1997) defines the root word “actuary” as “a person who

computes insurance premium rates, dividends, risks,

etc., based on statistical data.” It also defines “equiva-

lence” as “the state or fact of being equivalent; equality

in value, force, significance, etc.” In the context of the

CBAs and the retirement ordinance, which plainly

require that optional retirement benefits payable over

the life of a retiree and a surviving beneficiary be the

“actuarial equivalent” of the retiree’s straight-life re-

tirement allowance, these definitions require that “ac-

tuarial equivalent” mean that optional benefits that

include payments to a survivor be equal in value to the

straight-life benefit on the basis of statistical data

regarding mortality and other factors such as the rate of

interest. This meaning of “actuarial equivalent” is

consistent with the evidence presented at the hearing

before the hearing referee, who concluded, despite some

obfuscating testimony by the charging parties’ expert,

that “[b]oth [Gabriel, Roeder and Smith (GRS), the

commission’s actuary], from the evidence of its reports,

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and the UAW’s expert witness appear to agree that the

precise definition of ‘actuarially equivalent’ is ‘equal

based on the same set of actuarial assumptions.’ ” The

retirement system’s December 2003 annual actuarial

valuation, which was admitted at the MERC hearing

below, also defined “actuarial equivalent” as “[a] single

amount or series of amounts of equal value to another

single amount or series of amounts, computed on the

basis of the rate(s) of interest and mortality tables used

by the plan.” Similarly, the Attorney General opined

that the meaning of “actuarial equivalent” in MCL

46.12a(1)(b) requires “receipt of benefits of equal value,

and not approximate value, with reference to those

benefits enjoyed by other retirants....” OAG, 1981-

1982, No 5846, p 32 (January 22, 1981). So, requiring

that optional retirement benefits payable over the life of

a retiree and a surviving beneficiary be the “actuarial

equivalent” of the retiree’s straight-life retirement al-

lowance means that optional retirement benefits be

equivalent or equal in value on the basis of actuarial

assumptions.

It is undisputed that using 100 percent female mor-

tality tables to calculate “actuarial equivalent” optional

retirement benefits payable over the life of a retiree and

a surviving beneficiary results in the optional benefits

being more valuable than the straight-life benefit. This

inequality is contrary to the plain terms of the CBAs

and the retirement ordinance. It also results in the

retirement system’s paying more benefits than are

provided for in the CBAs and the retirement ordinance

and, in turn, makes it more difficult for respondents to

satisfy their obligation to maintain the financial stabil-

ity of the retirement system. Moreover, rather than

achieving sex neutrality in pension benefits and obliga-

tions, using 100 percent female mortality tables dispro-

portionately favors male retirees.

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The retirement commission in 2006, pursuant to § 15

of the ordinance,

selected a true sex-blended mortality

table that reflected the actual experience of the retire-

ment system. The 2006 GRS experience study deter-

mined that using 60 percent male and 40 percent

female blended mortality tables would provide actuarial

equivalence between a straight-life benefit and optional

benefits with rights to a surviving beneficiary. The 60%

male/40% female ratio reflected the actual experience of

county retirees selecting the more valuable optional

benefits despite the fact that the county work force is 74

percent female and 24 percent male. These ratios may

reflect that when ready to retire, females are less likely

to have someone in whom they have an insurable

interest who may be nominated as a survivor or they

may reflect the fact that females are less likely to need

or desire to provide benefits to a survivor. If bargaining

regarding mortality tables and other assumptions used

to calculate equality of value is allowed, it would permit

continued disparity of value between optional retire-

ment and straight-life benefits. Indeed, bargaining in-

creases the likelihood that optional benefits will con-

tinue to differ in value from the defined straight-life

benefit.

I read state legislation enabling county retirement

systems such as the one at issue here as implicitly, if not

explicitly, requiring that optional forms of retirement

benefits available to similarly situated retirees be “ac-

tuarially equivalent” and that the determination of

actuarial assumptions on the basis of the statistical

experience of the retirement system is vested in the

“The Retirement Commission shall from time to time adopt such

mortality and other tables of experience, and a rate or rates of regular

interest, as are necessary in the Retirement System on an actuarial

basis.” Macomb County Retirement Ordinance, § 15.

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system’s board of trustees, here the retirement commis-

sion. MCL 46.12a(1)(b) provides in pertinent part: “A

plan adopted for the payment of retirement benefits or

a pension shall grant benefits to an employee eligible for

pension or retirement benefits according to a uniform

scale for all persons in the same general class or

classification.” (Emphasis added). I conclude that per-

mitting an optional retirement benefit with rights of

survivorship that is more valuable than a straight-life

benefit violates the rule of uniformity “for all persons in

the same general class or classification.”

In addition, MCL 46.12a(12) provides that a county

retirement plan “may provide for a board of trustees to

administer the plan and...maygrant authority to the

board of trustees to fully administer and operate the

plan...within the limitations...in the plan.” This

subsection also provides that the county retirement

plan

may provide for financing, funding, and the payment of

benefits in the same manner and to the same extent as is

provided for in the state employees’ retirement act, 1943

PA 240, MCL 38.1 to 38.69, and the municipal employees

retirement act of 1984, 1984 PA 427, MCL 38.1501 to

38.1555....[Id.]

The State Employees’ Retirement Act (SERA) vests the

state retirement board with the obligation and author-

ity to conduct an actuarial investigation at least once

every five years:

At least once in each 5 year period, the retirement board

shall cause an actuarial investigation to be made into the

mortality, service, compensation, and other experience of

the members and beneficiaries of the retirement system.

Upon the basis of such actuarial investigation the retire-

ment board shall adopt such tables as are deemed neces-

sary for the proper operation of the retirement system and

for making effective the provisions of this act. [MCL 38.7.]

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SERA, like the retirement ordinance here, offers

optional retirement benefits that include survivorship

rights to a beneficiary provided they are the “actuarial

equivalent” of the straight-life benefit. MCL 38.31(1).

Although MCL 38.49(8) specifies an assumed interest

rate and use of “the 1983 group annuity and mortality

table” for the purpose of determining actuarial equiva-

lence for certain optional retirement benefits, SERA

does not suggest that the authority vested in the state

retirement board to ensure that optional benefits are

the actuarial equivalent of the regular straight-life

retirement allowance is subject to collective bargaining

under PERA. Reading MCL 46.12a(1)(b) and MCL

46.12a(12) in light of SERA, I believe that the Legisla-

ture intended that county retirement plans require

optional benefits with rights of survivorship be the

actuarial equivalent of straight-life benefits determined

by bargained factors and that the determination of

mortality tables and other actuarial assumptions to

maintain actuarial equivalence be vested with the re-

tirement commission.

This conclusion is consistent with caselaw holding

“that pension and retirement provisions are mandatory

subjects of bargaining” under PERA. Detroit Police

Officers Ass’n, 391 Mich at 63-64. The parties have

bargained and will continue to bargain over formulas

for determining eligibility for retirement and for calcu-

lating pension benefits on the basis of age, years of

service, final average compensation, and other factors.

The parties have bargained and will continue to bargain

over the availability of optional forms of benefit pay-

ments that may include payments to a surviving ben-

eficiary. The only matter within the discretion of the

retirement commission is the determination of mortal-

ity tables and actuarial assumptions, on the basis of the

actual experience of the retirement system’s members

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and beneficiaries, so that optional benefits remain the

“actuarial equivalent” of each other. This will also

ensure that regardless of which pension benefit simi-

larly situated retirees select, retirement benefits will be

paid “according to a uniform scale for all persons in the

same general class or classification.” MCL 46.12a(1)(b).

B. MORTALITY TABLES ARE “COVERED BY” THE

PARTIES’ AGREEMENTS

To the extent that the mortality tables and the

actuarial assumptions the retirement commission uses

to determine actuarial equivalence of optional pension

benefits are mandatory topics of collective bargaining,

the matter is “covered by” the parties’ CBAs. Conse-

quently, respondents satisfied their duty of good-faith

bargaining.

Under § 15 of PERA, MCL 423.215(1), a public

employer has a duty to bargain in good faith over subjects

found within the scope of the phrase “wages, hours, and

other terms and conditions of employment.” See Detroit

Police Officers Ass’n, 391 Mich at 54. I agree that,

generally, retirement or pension benefits and methods of

calculating them are mandatory subjects of collective

bargaining. Id. at 63-64; Lieutenants & Sergeants Ass’n v

City of Riverview, 111 Mich App 158, 161; 314 NW2d 463

(1981). A public employer commits an unfair labor prac-

tice if it refuses to bargain in good faith regarding a

mandatory subject of collective bargaining or takes uni-

lateral action on the subject absent an impasse in the

negotiations. MCL 423.210(1)(e); Detroit Police Officers

Ass’n, 391 Mich at 54-55. A public employer also “com-

mits an unfair labor practice if, before bargaining, it

unilaterally alters or modifies a term or condition of

employment, unless the employer has fulfilled its statu-

tory obligation or has been freed from it.” Port Huron

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Ed Ass’n v Port Huron Area Sch Dist, 452 Mich 309,

317; 550 NW2d 228 (1996). An employer satisfies its

duty by bargaining about a subject and “memorializing

resolution of that subject in the collective bargaining

agreement” or by establishing that “the union has

waived its right to demand bargaining.” Id. at 318.

Assuming that mortality tables and other actuarial

assumptions are subject to mandatory bargaining, and

because respondents do not assert that the charging

parties waived their right to bargain, the question

presented is whether the matter the charging parties

assert should be negotiated is “covered by” or is “con-

tained in” the CBAs. Port Huron Ed Ass’n, 452 Mich at

318, citing Dep’t of Navy v Fed Labor Relations Auth,

295 US App DC 239, 247; 962 F2d 48 (1992). When a

matter is “covered by” a CBA, whether the union has

waived its rights is irrelevant. Port Huron Ed Ass’n, 452

Mich at 319; Dep’t of Navy, 295 US App DC at 248.

Thus, when analyzing an ULP charge, the first step is

to determine if the parties’ CBA “covers” the matter in

dispute. Port Huron Ed Ass’n, 452 Mich at 321. If the

disputed matter is “covered” by the CBA, “the details

and enforceability of the provision are left to arbitra-

tion.” Id. A matter can be “covered by” by a CBA

without the matter being explicitly mentioned. Id.at

322 n 16.

In this case, all the CBAs provide formulas for

determining eligibility for retirement and for calculat-

ing pension benefits on the basis of age, years of service,

final average compensation, and other factors. All ex-

cept the AFSCME Local 893 CBA recognize that the

retirement benefit an employee may earn is a defined

benefit for the life of the retiree but that an actuarially

equivalent reduced benefit payable over the joint lives

of the retiree and a beneficiary is available under the

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county retirement ordinance. Further, the parties’

agreements incorporate the retirement ordinance by

providing that the employer “shall continue the ben-

efits as provided by the presently constituted...Ordi-

nance, and the Employer and the employee shall abide

by the terms and conditions thereof....” Apparently

then, the parties have agreed that the retirement ben-

efit employees may earn is a straight-life benefit under

§ 22 of the ordinance or an actuarially equivalent re-

duced benefit payable over the joint lives of the retiree

and a beneficiary under § 26. Moreover, by agreeing to

be bound by the retirement ordinance, the parties have

also agreed that the retirement commission “shall from

time to time adopt such mortality and other tables of

experience, and a rate or rates of regular interest, as are

necessary in the Retirement System on an actuarial

basis.” Macomb County Retirement Ordinance, § 15.

Consequently, retirement benefits and the methods

used to calculate them—including mortality tables and

actuarial assumptions—are “covered by” the parties’

CBAs. Respondents have therefore satisfied their duty

of bargaining in good faith over retirement benefits.

Port Huron Ed Ass’n, 452 Mich at 322; Detroit Police

Officers Ass’n, 391 Mich at 55.

This analysis also applies to the CBA between the

Macomb County Road Commission and Local 893. That

agreement refers to the retirement ordinance and ben-

efit options for spouses. Because a subject is not com-

prehensively addressed in the CBA does not mean it is

not “covered by” it. Gogebic Community College Mich

Ed Support Personnel Ass’n v Gogebic Community

College, 246 Mich App 342, 350; 632 NW2d 517 (2001).

This analysis is also unaffected by the fact that the

term “actuarial equivalent” is not defined in either the

retirement ordinance or the CBAs. As previously dis-

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cussed, the term is not ambiguous in the context of

pension benefits. Moreover, to the extent the charging

parties believe anything in the CBAs or the retirement

ordinance requires the continued use of mortality

tables and actuarial assumptions adopted in 1982, they

have a readily available contract remedy. “If the term or

condition in dispute is ‘covered’ by the agreement, the

details and enforceability of the provision are left to

arbitration.” Port Huron Ed Ass’n, 452 Mich at 321.

Consequently, even assuming that mandatory bar-

gaining applies, I conclude that respondents have sat-

isfied their duty to do so in good faith because retire-

ment benefits and methods of calculating them are

“covered by” the parties’ CBAs. Respondents are not

guilty of violating MCL 423.210(1)(e), and the ULP

charges should have been dismissed.

C. THE PARTIES DID NOT TACITLY AMEND THE CBAS

I respectfully disagree with the majority that there

was sufficient evidence to find that the parties by past

practice have amended their CBAs to remove from the

retirement commission the discretion to adopt “from

time to time...such mortality and other tables of

experience, and a rate or rates of regular interest, as are

necessary in the Retirement System on an actuarial

basis.” Macomb County Retirement Ordinance, § 15. I

would reverse the decision of the MERC and vacate its

order because its findings are not supported by compe-

tent, material, and substantial evidence on the whole

record and its holding that the clear and unambiguous

language of the parties’ contracts was tacitly amended

constitutes a substantial and material error of law.

First, the MERC erred by finding that the parties’ CBAs

were ambiguous. Second, the MERC erred by applying

the wrong legal standard to determine that the parties

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tacitly amended their CBAs by lengthy acquiescence to

the retirement commission’s use of 100 percent female

mortality tables for the purpose of determining that

optional retirement benefits were the actuarial equiva-

lent of a straight-life benefit.

By finding that the parties tacitly amended their

CBAs, the MERC must necessarily have found an

ambiguity in the parties’ CBAs because a past practice

of the parties cannot tacitly amend unambiguous terms

of the parties’ agreement to the contrary. Port Huron

Ed Ass’n, 452 Mich at 325-326; Gogebic Community

College, 246 Mich App 352. The MERC erroneously

applied the tacit amendment standard of Amalgamated

Transit Union, 437 Mich at 454-455. As later explained

in Port Huron Ed Ass’n, 452 Mich at 325, this standard

only applies “[w]here the collective bargaining agree-

ment is ambiguous or silent on the subject for which the

past practice has developed....” A higher standard

must be employed with respect to the unambiguous

terms of a CBA in order to facilitate the primary

purpose of PERA: promotion of “collective bargaining

to reduce labor-management strife.” Id. at 326. To

require a party to return to the bargaining table about

a matter clearly set forth in a contract requires proof

that the parties “knowingly, voluntarily, and mutually

agreed to new obligations.” Id. at 327. The proof

necessary to meet this higher standard must be “ ‘clear

and unmistakable’ ” and “ ‘substantially stronger evi-

dence than when utilized to interpret ambiguous lan-

guage or to fill in areas where the contract is silent.’ ”

Port Huron Ed Ass’n, 452 Mich at 327-328 (citations

omitted). The “ ‘highest quantum of proof will ordi-

narily be required in order to show that the parties

intended by their conduct to amend or modify clear and

unambiguous contractual language....’” Id.at329

(citation omitted). Under this higher standard, that “a

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party ‘knew or should have known’ it was acting

contrary to the agreement is insufficient to overcome

express language of the agreement.” Port Huron Ed

Ass’n, 452 Mich at 332.

Although an ambiguity or the failure of a CBA to

“cover” a topic is necessary to apply the tacit amend-

ment standard, id. at 327-330, the MERC did not

clearly state what parts of the CBAs are ambiguous.

The MERC suggested that the term “actuarial equiva-

lent” is ambiguous by noting the term is not defined in

the retirement ordinance. This term appears in both

the CBAs and the retirement ordinance and, as dis-

cussed already, is not ambiguous. In the context of the

CBAs and the retirement ordinance, the term means

that the optional benefits be equal in value to the

straight-life benefit on the basis of statistical data

regarding mortality. Moreover, the issue in this case is

not the meaning of “actuarial equivalent,” but how or

who determines the mortality tables and other actuarial

assumptions by which actuarial equivalence is estab-

lished. On this pertinent question there is no ambiguity

in either the CBAs or the retirement ordinance. The

parties in all but one of the CBAs explicitly agreed to be

bound by the terms of the retirement ordinance. The

one exception, the agreement between the road com-

mission and AFSCME Local 893, implicitly, if not ex-

plicitly, deferred to the retirement ordinance as govern-

ing optional retirement benefits, and hence the

meaning of “actuarial equivalent.” The retirement or-

dinance clearly and unambiguously declares that the

retirement commission “is vested [with] the general

administration, management and responsibility for the

proper operation of the Retirement System, and for

construing and making effective the provisions of this

Ordinance.” Macomb County Retirement Ordinance,

§ 3. Moreover, the retirement ordinance unambiguously

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provides that the retirement commission “shall from

time to time adopt such mortality and other tables of

experience, and a rate or rates of regular interest, as are

necessary in the Retirement System on an actuarial

basis.” Macomb County Retirement Ordinance, § 15.

The retirement commission’s long use of a 100 per-

cent female mortality table to determine that optional

retirement benefits were the actuarial equivalent of a

straight-life benefit is not the clear and unmistakable

evidence necessary to overcome the clear and unam-

biguous terms of the parties’ CBAs and the retirement

ordinance. On the contrary, it is evidence confirming

the plain terms of the CBAs and the retirement ordi-

nance that vests the authority in the commission to

from “time to time adopt such mortality and other

tables of experience, and a rate or rates of regular

interest, as are necessary....”Italso does not evidence

that the “parties knowingly, voluntarily, and mutually

agreed” to amend the CBAs. Similarly, the longtime

overpayment of optional benefits that were not “the

‘actuarial equivalent’ of straight life pensions” cannot

overcome the express language of the CBAs and the

retirement ordinance that vests the authority in the

commission to adopt mortality tables and rates of

interest as necessary on an actuarial basis. Even if the

parties knew or should have known that the use of 100

percent female mortality tables resulted in optional

benefits being more valuable than straight-life benefits,

that knowledge was not enough to amend the parties’

agreements.

“Simply because a party ‘knew or should

Because the retirement commission is not an agent of respondents,

the commission’s 1982 action cannot be evidence of respondents’ intent

to “knowingly, voluntarily, and mutually” amend the CBAs. Likewise, the

1982 GRS report cannot establish respondents’ intent. Moreover, adding

the language “[f]or purposes of determining actuarial equivalent Retire-

ment Allowances, the Retirement Commission is currently using a 7

/2%

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have known’ it was acting contrary to the agreement is

insufficient to overcome express language of the agree-

ment.” Port Huron Ed Ass’n, 452 Mich at 332.

II. CONCLUSION

I would hold that the retirement commission is

vested with the authority to determine mortality tables

and actuarial assumptions necessary to ensure “actu-

arial equivalence” of optional and straight-life retire-

ment benefits and that this matter is not a mandatory

subject of bargaining under PERA. But even if mortal-

ity tables and actuarial assumptions were mandatory

subjects of bargaining, I would conclude for the reasons

discussed in part I(B) that respondents satisfied their

duty of good-faith bargaining because retirement ben-

efits and methods of calculating them were “covered

by” the parties’ CBAs.

Finally, for the reasons discussed in part I(C), I would

also reverse the MERC’s decision and order because it is

not supported by competent, material, and substantial

evidence on the whole record and its holding that the

clear and unambiguous language of the parties’ con-

tracts was tacitly amended constitutes a substantial

and material error of law. I would, therefore, reverse the

MERC’s decision, vacate its order, and remand this

interest rate and a blending of male and female rates based on the 1971

group annuity mortality table projected to 1984 with ages set back two

years” to § 15 of the ordinance does not limit the preceding sentence of

that section. Further, the retirement commission did not adopt a sex-

blended mortality table until 2006. At best, the evidence the majority

relies on would only support a finding that respondents knew or should

have known that using the 100 percent female mortality tables would

result in optional retirement benefits that were not the actuarial equiva-

lent of a straight-life benefit. That knowledge is insufficient to amend the

clear and unambiguous language of the parties’ agreements. Port Huron

Ed Ass’n, 452 Mich at 332.

2011] M

ACOMB

AFSCME C

OUNCIL

25 189

ISSENTING

PINION BY

ARKEY

,P.J.

matter for entry of an order dismissing the charging

parties’ unfair labor practice charges under MCL

423.210(1)(e).

190 294 M

ICH

149 [Sept

ISSENTING

PINION BY

ARKEY

,P.J.

PEOPLE v BENTON

Docket No. 296721. Submitted September 15, 2011, at Detroit. Decided

September 22, 2011, at 9:00 a.m. Leave to appeal denied, 491 Mich

917.

Allanah T. Benton, a former school teacher, was convicted in the

Genesee Circuit Court, Geoffrey L. Neithercut, J., of two counts of

first-degree criminal sexual conduct for engaging in sexual inter-

course with a 12-year-old former student. Benton appealed.

The Court of Appeals held:

1. Under Michigan’s rape-shield statute, MCL 750.520j, evi-

dence of specific instances of a victim’s sexual conduct, opinion

evidence of the victim’s sexual conduct, and reputation evidence of

the victim’s sexual conduct may not be admitted unless and only to

the extent that the judge finds that the proposed evidence is

material to a fact at issue in the case and that its inflammatory or

prejudicial nature does not outweigh its probative value. The

evidence may only be of the victim’s past sexual conduct with the

actor or of specific instances of sexual activity showing the source

or origin of semen, pregnancy, or disease. However, evidence that

is not admissible under one of the statutory exceptions to the

rape-shield statute may nevertheless be relevant and admissible to

preserve a defendant’s Sixth Amendment right of confrontation.

In determining whether to admit the evidence, a court must

consider the significant legislative purposes underlying the rape-

shield statute and should always favor exclusion of evidence of a

complainant’s sexual conduct when its exclusion would not uncon-

stitutionally abridge the defendant’s right to confront the wit-

nesses against him or her. In this case, Benton sought to introduce

evidence that the victim had previously engaged in sexual relations

with two other girls, but the trial court excluded the evidence under

the rape-shield statute. Benton argued that the exclusion of the

evidence had deprived her of her right of confrontation because it

allowed the prosecution to portray the victim as sexually innocent.

However, the evidence was not legally relevant because sexual pen-

etration with a person under 13 years of age constitutes first-

degree criminal sexual conduct irrespective of the victim’s sexual

history. Further, because the victim never asserted that Benton

had been his first sexual partner, the evidence was not necessary to

2011] P

EOPLE V

ENTON

191

impeach the victim’s testimony. Accordingly, the trial court did not

abuse its discretion by excluding the evidence.

2. Generally, all relevant evidence is admissible, but relevant

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. In this case, Benton

was terminated from her teaching position and the termination

was upheld by the tenure commission. The prosecutor referred to

the tenure proceeding while cross-examining Benton. Benton

argued that the reference was irrelevant and unfairly prejudicial.

However, Benton had referred to the tenure proceeding during

direct examination, and the cross-examination was responsive.

Accordingly, the trial court did not abuse its discretion by allowing

cross-examination regarding the tenure proceeding, and to the

extent that the questioning improperly suggested that there had

already been an official determination that Benton was guilty, any

error was harmless in light of the trial court’s instruction that the

attorneys’ questions and statements were not evidence.

3. Under MCL 750.520b(2)(b), a conviction for first-degree

criminal sexual conduct is punishable by imprisonment for life or

any term of years, but not less than 25 years if the offense is

committed by a person who is 17 years of age or older against an

individual less than 13 years of age. Benton was, accordingly,

sentenced to 25 to 38 years’ imprisonment. In determining

whether a penalty constitutes cruel or unusual punishment, a

court must consider (1) the severity of the sentence imposed and

the gravity of the offense, (2) a comparison of the penalty to

penalties for other crimes under Michigan law, and (3) a compari-

son between Michigan’s penalty and penalties imposed for the

same offense in other states. Benton engaged in a prolonged course

of action to isolate the victim and render him susceptible to her

approach, and the victim’s alleged acquiescence cannot be consid-

ered a mitigating factor given his age. Further, the 25-year

minimum sentence was not disproportionate in light of the social

consequences of sexual offenses against children, and several other

states impose similar penalties. Thus, the statutory mandatory-

minimum sentence of 25 years in prison was not cruel or unusual,

and Benton was not unconstitutionally sentenced.

Affirmed.

1. R

APE —

RIMINAL

EXUAL

ONDUCT —

VIDENCE OF

RIOR

EXUAL

ONDUCT —

IGHT OF

ONFRONTATION

Under Michigan’s rape-shield statute, evidence of specific instances

of a victim’s sexual conduct, opinion evidence of the victim’s sexual

conduct, and reputation evidence of the victim’s sexual conduct

192 294 M

ICH

191 [Sept

may not be admitted unless and only to the extent that the judge

finds that the proposed evidence is material to a fact at issue in the

case and that its inflammatory or prejudicial nature does not

outweigh its probative value; the evidence may only be of the

victim’s past sexual conduct with the actor or of specific instances

of sexual activity showing the source or origin of semen, preg-

nancy, or disease; however, evidence that is not admissible under

one of the statutory exceptions to the rape-shield statute may

nevertheless be relevant and admissible to preserve a defendant’s

Sixth Amendment right of confrontation; in determining whether

to admit the evidence, a court must consider the significant

legislative purposes underlying the rape-shield statute and should

always favor exclusion of evidence of a complainant’s sexual

conduct when its exclusion would not unconstitutionally abridge

the defendant’s right to confront the witnesses against him or her

(MCL 750.520j).

2. C

ONSTITUTIONAL

AW —

ENTENCES —

RUEL OR

NUSUAL

UNISHMENT —

IRST

-D

EGREE

RIMINAL

EXUAL

ONDUCT

In determining whether a penalty constitutes cruel or unusual

punishment, a court must consider (1) the severity of the sentence

imposed and the gravity of the offense, (2) a comparison of the

penalty to penalties for other crimes under Michigan law, and (3)

a comparison between Michigan’s penalty and penalties imposed

for the same offense in other states; a conviction for first-degree

criminal sexual conduct is punishable by imprisonment for life or

any term of years, but not less than 25 years if the offense is

committed by a person who is 17 years of age or older against an

individual less than 13 years of age; a 25-year minimum sentence

for first-degree criminal sexual conduct committed by a person

who is 17 years of age or older against an individual less than 13

years of age is not cruel or unusual in light of the social conse-

quences of sexual offenses against children and given that the

25-year mandatory minimum sentence is similar to the penalty

imposed for the same offense in several other states (US Const, Am

VI; Const 1963, art 1, § 16; MCL 750.520b[2][b]).

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, David S. Leyton, Prosecuting Attor-

ney, and Vikki Bayeh Haley, Assistant Prosecuting

Attorney, for the people.

Michael A. Faraone, P.C. (by Michael A. Faraone), for

defendant.

2011] P

EOPLE V

ENTON

193

Before: S

ERVITTO

,P.J., and M

ARKEY

and K. F. K

ELLY

JJ.

ARKEY

, J. Following a jury trial, defendant was

convicted of two counts of first-degree criminal sexual

conduct (CSC-I), MCL 750.520b(a)(1), for which she

was sentenced to concurrent prison terms of 25 to 38

years. She appeals by right. We affirm.

Defendant, a former elementary school teacher, was

convicted of engaging in sexual intercourse with a

12-year-old former student from her sixth grade class.

The victim had academic and behavioral problems and

was suspended from school for fighting with another

student at the beginning of the 2007-2008 school year.

Defendant intervened on the victim’s behalf and per-

suaded the school principal not to expel the victim from

school. After the victim returned to school, defendant

invited him to religious activities at her masjid

(mosque) and to her home, purportedly to offer him

guidance and help him with his anger and academic

problems. The victim was subsequently expelled from

school after a second fighting incident. After his expul-

sion, he spent more time with defendant at her home,

with his mother’s permission.

According to the victim, he and defendant progressed

from hugging, to holding hands, to kissing, before

eventually engaging in sexual intercourse. The victim

testified that he and defendant had sexual intercourse

on two different evenings in October 2007. After the

second incident, the victim called defendant from his

home and inadvertently recorded the call. During the

recorded call, the victim referred to defendant as his

girlfriend and stated that he was proud to be involved

with a grown woman. The victim’s mother heard the

recording and reported it to the school. The school

194 294 M

ICH

191 [Sept

board later terminated defendant from her teaching

position and that decision was upheld by the tenure

commission.

I. RAPE-SHIELD STATUTE

Defendant argues that the trial court erred by deny-

ing her request to cross-examine the victim concerning

statements he previously made during a forensic inter-

view in which he related prior sexual experiences with a

13-year-old girl and a 14-year-old girl. The trial court

ruled that the evidence was barred by the rape-shield

statute, MCL 750.520j. Defendant contends that the

exclusion of the evidence violated her constitutional

right of confrontation.

This Court reviews a trial court’s evidentiary ruling

for an abuse of discretion. People v Orr, 275 Mich App

587, 588; 739 NW2d 385 (2007). An abuse of discretion

occurs when the trial court reaches a result that is

outside the range of principled outcomes. Id. at 588-

589. Preliminary issues of law, including the interpre-

tation of the rules of evidence and the effect of consti-

tutional provisions, are reviewed de novo. People v

Dobek, 274 Mich App 58, 93; 732 NW2d 546 (2007). The

constitutional question whether defendant was denied

her constitutional right to confront the witnesses

against her is reviewed de novo. People v Breeding, 284

Mich App 471, 479; 772 NW2d 810 (2009).

At trial, when describing the two acts of intercourse

with defendant, the victim testified that defendant placed

a condom on his penis and put his penis into her vagina

because he did not know how. The trial court denied

defendant’s request to cross-examine the victim concern-

ing statements he previously made during a forensic

interview in which he related prior sexual experiences

with a 13-year-old girl and a 14-year-old girl.

2011] P

EOPLE V

ENTON

195

Michigan’s rape-shield statute, MCL 750.520j, pro-

vides:

(1) Evidence of specific instances of the victim’s sexual

conduct, opinion evidence of the victim’s sexual conduct,

and reputation evidence of the victim’s sexual conduct

shall not be admitted...unless and only to the extent that

the judge finds that the following proposed evidence is

material to a fact at issue in the case and that its inflam-

matory or prejudicial nature does not outweigh its proba-

tive value:

(a) Evidence of the victim’s past sexual conduct with the

actor.

(b) Evidence of specific instances of sexual activity

showing the source or origin of semen, pregnancy, or

disease.

(2) If the defendant proposes to offer evidence described

in subsection (1)(a) or (b), the defendant within 10 days

after the arraignment on the information shall file a

written motion and offer of proof. The court may order an

in camera hearing to determine whether the proposed

evidence is admissible under subsection (1). If new infor-

mation is discovered during the course of the trial that may

make the evidence described in subsection (1)(a) or (b)

admissible, the judge may order an in camera hearing to

determine whether the proposed evidence is admissible

under subsection (1).

MRE 404(a) similarly provides, in pertinent part:

Evidence of a person’s character or a trait of character is

not admissible for the purpose of proving action in confor-

mity therewith on a particular occasion, except:

***

(3) In a prosecution for criminal sexual conduct, evi-

dence of the alleged victim’s past sexual conduct with the

defendant and evidence of specific instances of sexual

activity showing the source or origin of semen, pregnancy,

or disease[.]

196 294 M

ICH

191 [Sept

In this case, the evidence of the victim’s prior sexual

experiences that defendant sought to introduce did not

fit within the categories of evidence specified in MCL

750.520j(1)(a) or (b). Defendant contends, however, that

the evidence was necessary to protect her constitutional

right of confrontation.

In certain limited situations, evidence that is not

admissible under one of the statutory exceptions may

nevertheless be relevant and admissible to preserve a

criminal defendant’s Sixth Amendment right of con-

frontation. People v Hackett, 421 Mich 338, 344, 348;

365 NW2d 120 (1984). In Hackett, 421 Mich at 348-349,

our Supreme Court explained:

The fact that the Legislature has determined that

evidence of sexual conduct is not admissible as character

evidence to prove consensual conduct or for general im-

peachment purposes is not however a declaration that

evidence of sexual conduct is never admissible. We recog-

nize that in certain limited situations, such evidence may

not only be relevant, but its admission may be required to

preserve a defendant’s constitutional right to confronta-

tion. For example, where the defendant proffers evidence of

a complainant’s prior sexual conduct for the narrow pur-

pose of showing the complaining witness’ bias, this would

almost always be material and should be admitted. More-

over in certain circumstances, evidence of a complainant’s

sexual conduct may also be probative of a complainant’s

ulterior motive for making a false charge. Additionally, the

defendant should be permitted to show that the complain-

ant has made false accusations of rape in the past. [Cita-

tions omitted.]

When a trial court exercises its discretion to determine

whether evidence of a complainant’s sexual conduct not

within the statutory exceptions should be admitted, the

court “should be mindful of the significant legislative

purposes underlying the rape-shield statute and should

always favor exclusion of evidence of a complainant’s

2011] P

EOPLE V

ENTON

197

sexual conduct where its exclusion would not unconsti-

tutionally abridge the defendant’s right to confronta-

tion.” Id. at 349. When applying the rape-shield statute,

trial courts must balance the rights of the victim and

the defendant in each case. People v Morse, 231 Mich

App 424, 433; 586 NW2d 555 (1998).

Defendant argues that she should have been permit-

ted to cross-examine the victim concerning his prior

sexual experiences because his trial testimony falsely

portrayed him as a sexually innocent, inexperienced

virgin, thereby appealing to the jury’s sympathy for a

sexually uninitiated victim. We conclude that the trial

court did not err by excluding this evidence. The first

flaw in defendant’s argument is that the victim never

stated, directly or indirectly, that his sexual contact

with defendant was his first sexual experience. Indeed,

when the prosecutor asked the victim why he needed

defendant’s assistance with the condom and with pen-

etration the second time, the victim stated, “Cause

every time Idid...thegirl put my penis in her vagina

for me.” (Emphasis added.) We disagree with defen-

dant’s contention that this statement could only be

understood as referring to the victim’s first sexual

encounter with defendant. The phrase “every time”

refers to more than one occasion, not a single prior

incident. Further, the victim’s reference to “the girl”

suggested someone other than defendant, considering

that defendant was a grown woman and that the victim

referred to defendant as “Miss Allanah” throughout his

testimony. Accordingly, defendant failed to show that

the proffered evidence was necessary to impeach the

victim’s trial testimony.

Furthermore, the evidence was not otherwise rel-

evant. “Evidence is relevant when it has a tendency to

make a material fact more or less probable.” People v

198 294 M

ICH

191 [Sept

McGhee, 268 Mich App 600, 610; 709 NW2d 595 (2005).

“Relevance involves two elements, materiality and pro-

bative value. Materiality refers to whether the fact was

truly at issue.” Id. The premise of defendant’s argu-

ment is that a jury would view sexual relations with a

12-year-old virgin as being more egregious than sexual

relations with a 12-year-old victim who has already had

sexual relations, so it was necessary to place the vic-

tim’s prior sexual experiences before the jury to defuse

the prejudicial inference that defendant was the vic-

tim’s first sexual partner. But the victim’s sexual expe-

rience or history was not legally relevant to any issue in

the case. Sexual penetration with a person under 13

years of age constitutes CSC-I irrespective of the vic-

tim’s consent or experience. MCL 750.520b(1)(a).

Accordingly, the trial court did not abuse its discre-

tion by excluding the proffered evidence.

II. TENURE COMMISSION EVIDENCE

Defendant next argues that the trial court erred

when it permitted the prosecutor to cross-examine her

concerning the results of her teacher tenure proceeding.

We review this evidentiary issue for an abuse of discre-

tion. Dobek, 274 Mich App at 93. Evidentiary error does

not require reversal unless after an examination of the

entire cause, it appears more probable than not that the

error affected the outcome of the trial in light of the

weight and strength of the properly admitted evidence.

MCL 769.26; People v Whittaker, 465 Mich 422, 426-

427; 635 NW2d 687 (2001).

“Generally, all relevant evidence is admissible, and

irrelevant evidence is not.” People v Coy, 258 Mich App

1, 13; 669 NW2d 831 (2003), citing MRE 402. “ ‘Rel-

evant evidence’ means evidence having any tendency to

make the existence of any fact that is of consequence to

2011] P

EOPLE V

ENTON

199

the determination of the action more probable or less

probable than it would be without the evidence.” MRE

401. However, MRE 403 provides that “[a]lthough rel-

evant, 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 considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” Defen-

dant argues that the prosecutor’s question regarding

the tenure hearing was unfairly prejudicial because it

suggested that there had already been a judicial finding

of her guilt. She argues that the outcome of the tenure

hearing was not relevant because it involved different

allegations, such as improper communications with a

student, and was decided by a different standard of

proof. Plaintiff argues that the question was not im-

proper because defendant opened the door by testifying

about the tenure hearing on direct examination.

The record discloses that on direct examination de-

fendant testified that the victim’s mother brought the

recording of the telephone call between the victim and

defendant to defendant’s school for school authorities

to listen to, but that no one associated with the school

or the school board ever gave defendant the opportunity

to listen to the recording. According to defendant, she

heard the recording for the first time in April 2009,

when her attorney for the tenure proceeding allowed

her to listen to it. Defendant also testified on direct

examination that the school district terminated her

employment “[a]s a result of the allegations[.]” On

cross-examination, the prosecutor questioned defen-

dant as follows:

Q. Ms. Benton, you—you have lost your job, that’s true,

isn’t it?

A. Correct.

200 294 M

ICH

191 [Sept

Q. They had a tenure hearing about that, didn’t they?

A. Yes.

Q. So, you had a hearing before you lost your job, didn’t

you?

A. Yes.

Q. Wasn’t just the allegation. There was actually some

process—

***

A. Correct.

Defendant’s direct examination testimony suggested

that the school board had treated her unfairly by

denying her the opportunity to hear the recording and

explain her statements until the tenure commission

hearing. Defendant’s direct examination testimony

opened the door for the prosecution to further question

defendant on this subject. The prosecutor’s questioning

did not expand on the matters raised in direct exami-

nation except to elicit defendant’s acknowledgement

that she was not terminated merely because of “allega-

tions,” but rather was afforded a hearing before she lost

her job. Accordingly, the trial court did not abuse its

discretion in allowing cross-examination on this sub-

ject.

To the extent that the prosecutor’s last question

improperly suggested that there had already been an

official determination of defendant’s guilt, we conclude

any error arising from the question was harmless. The

jury had already learned from defendant’s direct exami-

nation testimony that the school board had terminated

defendant’s employment following a tenure commission

hearing. The potential prejudice arose not from defen-

dant’s answer to the question, but rather from the

prosecutor’s wording of the question. Nonetheless, the

2011] P

EOPLE V

ENTON

201

jurors were instructed that the attorney’s questions and

statements were not evidence, and jurors are presumed

to have followed their instructions. People v Graves, 458

Mich 476, 486; 581 NW2d 229 (1998); Dobek, 274 Mich

App at 66 n 3 (potential prejudice from prosecutor’s

statement cured by instruction that statements and

arguments by counsel are not evidence). Accordingly, it

is not more probable than not that any error affected

the outcome. Whittaker, 465 Mich at 426-427.

Defendant also argues that the question regarding

the outcome of the hearing was improper hearsay, and

that it violated the Confrontation Clause. Defendant

did not object below to the prosecutor’s questioning on

hearsay or Confrontation Clause grounds, so these

claims are not preserved. Unpreserved claims of eviden-

tiary error are reviewed for plain error affecting the

defendant’s substantial rights. People v Pipes, 475 Mich

267, 274; 715 NW2d 290 (2006). Defendant’s hearsay

and Confrontation Clause arguments are based on her

attempt to equate the testimony revealing the outcome

of the tenure hearing with an out-of-court statement of

the referee who presided at that hearing; however, no

statement by the hearing referee was introduced at

trial. Rather, defendant merely offered her own knowl-

edge of the outcome of that proceeding. Accordingly,

defendant has not established a plain error based on

hearsay grounds or the Confrontation Clause.

Defendant further argues that to the extent defense

counsel opened the door to this line of questioning,

counsel was ineffective. Pertinent here, to establish

ineffective assistance of counsel, defendant must estab-

lish (1) that her attorney’s performance was objectively

unreasonable in the light of prevailing professional

norms, and (2) that but for counsel’s error, it is reason-

ably probable that a different outcome would have

202 294 M

ICH

191 [Sept

resulted. People v Frazier, 478 Mich 231, 243; 733 NW2d

713 (2007). Defense counsel’s direct examination ques-

tioning was intended to show that defendant was treated

unfairly by the school board, which did not give her the

opportunity to explain her statements on the recording.

This line of questioning was a matter of strategy, and this

Court will not second-guess defense counsel’s judgment

on matters of trial strategy. People v Unger, 278 Mich App

210, 242-243; 749 NW2d 272 (2008).

III. MANDATORY 25-YEAR MINIMUM SENTENCE

Defendant lastly argues that her mandatory 25-year

minimum sentences for her first-degree CSC convic-

tions are cruel and/or unusual punishments that violate

the federal and state constitutions. US Const, Am VIII;

Const 1963, art 1, § 16. We review issues of constitu-

tional law de novo. People v Swint, 225 Mich App 353,

364; 572 NW2d 666 (1997). “Statutes are presumed to

be constitutional, and the courts have a duty to con-

strue a statute as constitutional unless its unconstitu-

tionality is clearly apparent.” People v Dipiazza, 286

Mich App 137, 144; 778 NW2d 264 (2009) (quotation

marks and citation omitted).

As amended by 2006 PA 169, effective August 28,

2006, MCL 750.520b(2)(b) provides that a conviction for

CSC-I is punishable by “imprisonment for life or any

term of years, but not less than 25 years” if the offense

is committed by a person who is 17 years of age or older

against an individual less than 13 years of age. Defen-

dant argues that the mandatory 25-year minimum

sentence constitutes cruel or unusual punishment be-

cause it imposes an excessively long term of imprison-

ment and precludes judicial discretion to consider miti-

gating factors or other particular circumstances of the

offense and the offender.

2011] P

EOPLE V

ENTON

203

The Michigan Constitution prohibits cruel or un-

usual punishment, Const 1963, art 1, § 16, whereas the

United States Constitution prohibits cruel and unusual

punishment, US Const, Am VIII. If a punishment

“passes muster under the state constitution, then it

necessarily passes muster under the federal constitu-

tion.” People v Nunez, 242 Mich App 610, 618-619 n 2;

619 NW2d 550 (2000).

In People v Bullock, 440 Mich 15; 485 NW2d 866

(1992), our Supreme Court considered whether a statu-

tory mandatory penalty of life in prison without the

possibility of parole for possession of 650 or more grams

of cocaine was cruel or unusual punishment under the

Michigan Constitution. The Court explained that

whether a penalty may be considered cruel or unusual

is to be determined by a three-pronged test that consid-

ers (1) the severity of the sentence imposed and the

gravity of the offense, (2) a comparison of the penalty to

penalties for other crimes under Michigan law, and (3) a

comparison between Michigan’s penalty and penalties

imposed for the same offense in other states. Id. at

33-34. The Court stated that under the Michigan Con-

stitution, the prohibition against cruel or unusual pun-

ishment included a prohibition on grossly dispropor-

tionate sentences. Id. at 32. But, the Court noted that

“the constitutional concept of ‘proportionality’ under

Const 1963, art 1, § 16 is distinct from the nonconsti-

tutional ‘principle of proportionality’ discussed in

People v Milbourn, 435 Mich 630, 650; 461 NW2d 1

(1990), although the concepts share common roots.” Id.

at 34 n 17.

With respect to the first factor, gravity of the offense

and the severity of the sentence imposed, defendant

argues that her sentences are disproportionate because,

considering her own characteristics and the character-

204 294 M

ICH

191 [Sept

istics of the sentencing offense, she ranks among the

least dangerous of offenders in the class of offenders

subject to a 25-year minimum sentence under MCL

750.520b(2)(b). She asserts that the offenses did not

involve any force, violence, coercion, or trickery, and

that the victim did not sustain physical or psychological

injury. Further, she has no prior criminal record of any

kind, and she contends that “by all accounts she had

otherwise led an exemplary life.” She maintains that

her sentences are unduly harsh in view of the particular

offense, which she characterizes as a comparatively

benign type of child assault.

We are not persuaded that defendant should be

considered a less culpable offender than most persons

convicted of CSC-I against a child victim. In In re

Hildebrant, 216 Mich App 384, 386-387; 548 NW2d 715

(1996), this Court observed:

Statutory rape, a strict-liability offense, has been upheld

as a matter of public policy because of the need to protect

children below a specific age from sexual intercourse. The

public policy has its basis in the presumption that the

children’s immaturity and innocence prevents them from

appreciating the full magnitude and consequences of their

conduct. People v Cash, 419 Mich 230, 242; 351 NW2d 822

(1984). Because this policy focuses on the exploitation of

the victim, we find that the Legislature did not intend to

withdraw the law’s protection of the victim in order to

protect the offender.

This statement of Michigan public policy conflicts with

defendant’s attempt to minimize the gravity and sever-

ity of her offense. Further, contrary to defendant’s

assertion that she did not resort to trickery, isolation, or

surprise to accomplish the abuse, the evidence showed

that defendant offered herself as a mentor and tutor to

a particularly vulnerable victim, invited the victim to

participate in activities that allowed her to isolate him

2011] P

EOPLE V

ENTON

205

in her home, and then gradually introduced physical

and emotional intimacy to the relationship that culmi-

nated in sexual intercourse. The victim’s alleged acqui-

escence to defendant’s conduct cannot be considered a

mitigating factor given that “his immaturity and inno-

cence prevent[ed] [him] from appreciating the full mag-

nitude and consequences of [his] conduct.” In re Hilde-

brant, 216 Mich App at 386.

Defendant also argues that the mandatory 25-year

minimum sentence is unduly harsh compared to penal-

ties for other offenses under Michigan law, including

many violent offenses. We are not persuaded that these

comparisons render the 25-year minimum sentence

disproportionate to the offense. The perpetration of

sexual activity by an adult with a preteen victim is an

offense that violates deeply ingrained social values of

protecting children from sexual exploitation. Even

when there is no palpable physical injury or overtly

coercive act, sexual abuse of children causes substantial

long-term psychological effects, with implications of

far-reaching social consequences. The unique ramifica-

tions of sexual offenses against a child preclude a purely

qualitative comparison of sentences for other offenses

to assess whether the mandatory 25-year minimum

sentence is unduly harsh.

Finally, defendant invites a comparison of Michigan’s

mandatory 25-year minimum sentence with the sen-

tencing schemes for like offenses in other states. But

our research reveals that several other states have laws

that also impose a mandatory 25-year minimum sen-

tence for an adult offender’s sexual offense against a

preteen victim, regardless of the presence of aggravat-

ing factors such as force or violence.

Thus, a compari-

Ark Code Ann 5-14-103(a)(3)(A) and (c)(2); Cal Penal Code 288.7(a);

Del Code Ann tit 11, § 4205A(a)(2); Fla Stat 775.082(3)(a)(4) and

206 294 M

ICH

191 [Sept

son of Michigan’s penalty and penalties imposed for the

same offense in other states fails to support defendant’s

attack on the constitutionality of Michigan’s sentencing

statute.

For these reasons, we reject defendant’s argument

that her mandatory 25-year minimum sentences are

unconstitutionally cruel or unusual.

We affirm.

ERVITTO

,P.J., and K. F. K

ELLY

, J., concurred with

ARKEY

,J.

800.04(5)(b); Ga Code Ann 16-6-4(d); Kan Stat Ann 21-6627(a)(1)(B) and

21-5503(a)(3); La Rev Stat Ann 14:43.1(C)(2); Mont Code Ann 45-5-

501(1)(a)(ii)(D), 45-5-503(4), and 45-5-507(5); Nev Rev Stat 200.366(3)(b)

and (c); NC Gen Stat 14-27.2A and 14-27.4A; Or Rev Stat

137.700(2)(b)(D) and 163.375(1)(b); RI Gen Laws 11-37-8.1 and 11-37-

8.2; SC Code Ann 16-3-651(h) and 16-3-655; Tenn Code Ann 39-13-522

and 40-35-112(b)(1); Utah Code Ann 76-5-402.1; Wash Rev Code

9.94A.507; W Va Code 61-8B-3(c); Wis Stat 939.616(1r) and 948.02(1)(b).

2011] P

EOPLE V

ENTON

207

PEOPLE v MAHONE

Docket No. 299056. Submitted September 14, 2011, at Detroit. Decided

September 27, 2011, at 9:00 a.m. Leave to appeal denied, 491 Mich

908.

Lance C. Mahone was convicted by a jury in the Oakland Circuit

Court of two counts of first-degree criminal sexual conduct and

one count of unarmed robbery. The charges resulted from an

attack on the victim after an attempt by defendant and his

codefendant (not a party to this appeal) to solicit the sexual

services she advertised online. The victim refused to see two

clients at the same time, and defendant and his codefendant

initially left, but then later returned to rob and sexually assault

her. Because defendant’s theory was that the victim invented the

sexual assault as vengeance for the theft and refusal to pay for

services, credibility was an essential component of the case. The

jury’s composition was changed after jury deliberations had begun

when the court, Martha D. Anderson, J., excused a juror from

service and replaced her with an alternate. Defendant appealed.

The Court of Appeals held:

1. A police officer testified that the victim indicated that she

screamed during the assault. The officer then testified that she

confirmed with unidentified inhabitants of an adjacent hotel room

that they heard a disturbance and screams during that time frame.

The error was cured when the inadmissible hearsay was struck

from the record and the jury was instructed to disregard it. Jurors

are presumed to follow instructions, and it is presumed the

instructions cure most errors. The prosecutor’s comment during

closing argument that the officer confirmed the disturbance was a

fair response to defendant’s explicit testimony that there was no

screaming and, by implication, no disturbance.

2. Under MRE 801(d)(1)(B), a prior consistent statement of a

witness is admissible hearsay if (1) the declarant testifies at trial

and is subject to cross-examination, (2) there was an express or

implied charge of recent fabrication or improper influence or

motive of the declarant’s testimony, (3) the proponent offers a

prior statement that is consistent with the declarant’s challenged

in-court testimony, and (4) the prior consistent statement was

made before the supposed motive to falsify arose.

208 294 M

ICH

208 [Sept

3. The testimony of the victim’s coworker that the victim told

the coworker before the assault (but after she refused to see the

codefendants) that she had not been expecting two customers to

arrive and would call the coworker back was consistent with the

victim’s testimony and properly admitted under MRE

801(d)(1)(B). Defendant’s testimony that the victim admitted him

and his codefendant without complaint implied that the victim had

fabricated her testimony about the phone call. The telephone

conversation occurred before the victim would have had a motive

to falsify her testimony (that is, retaliation for the codefendants’

refusal to pay and subsequent theft of the victim’s cell phone and

computer).

4. The police officer’s hearsay testimony that the victim stated

that a vodka bottle had been used in a threatening manner against

her was not admissible under MRE 801(d)(1)(B), however, because

the victim’s motive to falsify would have occurred before the victim

talked to the officer, not after. While a witness’s nonresponsive

answer to a question may work some mischief with a jury, it is not

prejudicial unless it is egregious or not amenable to a curative

instruction. The inadmissible hearsay was not prejudicial because

the testimony was not egregious and could have been cured by an

instruction had defense counsel requested one.

5. Statements made for the purpose of medical treatment are

admissible under MRE 803(4) if they were reasonably necessary

for diagnosis and treatment and the declarant had a self-interested

motivation to be truthful in order to receive proper medical care,

irrespective of whether the declarant sustained any immediately

apparent physical injury. In cases of sexual assault, the injuries

might be latent, such as contracting sexually transmitted diseases,

or psychological in nature and thus not necessarily physically

manifested at all. In these cases, a victim’s complete history and a

recitation of the totality of the circumstances of the assault are

properly considered to be statements made for medical treatment.

The victim’s statements made to a nurse during the rape exami-

nation were properly admitted under MRE 803(4).

6. If an alternate juror replaces a juror after deliberations

begin, the court must instruct the jury to begin its deliberations

anew. MCR 6.411. Defendant was not prejudiced by the substitu-

tion of an alternate juror because the alternate juror was properly

instructed before his initial release from jury deliberations not to

discuss the case or review media concerning it, the alternate

complied with that instruction, and the jury was instructed to

begin deliberations anew.

Affirmed.

2011] P

EOPLE V

AHONE

209

1. E

VIDENCE —

EARSAY —

RIOR

ONSISTENT

TATEMENTS —

ULES OF

VI-

DENCE

A prior consistent statement is admissible if (1) the declarant

testifies at trial and is subject to cross-examination, (2) there was

an express or implied charge of recent fabrication or improper

influence or motive of the declarant’s testimony, (3) the proponent

offers a prior statement that is consistent with the declarant’s

challenged in-court testimony, and (4) the prior consistent state-

ment was made before the supposed motive to falsify arose (MRE

801[d][1][B]).

2. E

VIDENCE —

EARSAY —

TATEMENTS FOR

EDICAL

REATMENT —

EXUAL

SSAULT

ICTIMS

Statements made for the purpose of medical treatment are admis-

sible hearsay if they were reasonably necessary for diagnosis and

treatment and the declarant had a self-interested motivation to be

truthful in order to receive proper medical care, irrespective of

whether the declarant sustained any immediately apparent physi-

cal injury; in cases of sexual assault, the injuries might be latent,

such as contracting a sexually transmitted disease, or psychologi-

cal in nature and thus not necessarily physically manifested at all,

and a sexual assault victim’s complete history and a recitation of

the totality of the circumstances of the assault are properly

considered to be statements made for medical treatment (MRE

803[4]).

3. C

RIMINAL

AW —

URY

RIALS —

UBSTITUTION OF

URORS

FTER

OMMENCE-

MENT OF

ELIBERATIONS

If an alternate juror replaces a juror after deliberations begin, the

court must instruct the jury to begin its deliberations anew (MCR

6.411).

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Jessica R. Cooper, Prosecuting Attor-

ney, Thomas R. Grden, Appellate Division Chief, and

Matthew A. Fillmore, Assistant Prosecuting Attorney,

for the people.

State Appellate Defender (by Peter Jon Van Hoek) for

defendant.

Before: R

ONAYNE

RAUSE

,P.J., and C

AVANAGH

and

ANSEN

,JJ.

210 294 M

ICH

208 [Sept

ONAYNE

RAUSE

,P.J. Defendant was convicted by a

jury, after a joint trial with his codefendant, Evan

Jerome Burney,

of two counts of first-degree criminal

sexual conduct (CSC-I), MCL 750.520b, and one count

of unarmed robbery, MCL 750.530. Trial was, for the

most part, a credibility contest between defendant and

the victim. The jury apparently found the victim more

credible. Defendant appeals his convictions by right,

and we affirm.

The victim was working as a prostitute at the time of

the offense, a fact that was fully explored before the jury

by both the prosecution and the defense. The codefen-

dants initially sought to procure her services after

finding an online advertisement that had been placed

by the victim’s working partner. The victim testified

that she refused to see two customers at once, where-

upon the codefendants initially left. They then re-

turned, tricked her into opening the door, robbed her of

her cell phone and computer, and sexually assaulted

her; they were interrupted by the arrival of another

customer. Defendant testified that the interaction had

been completely consensual until interrupted by the

other customer’s arrival. However, he and Burney took

their money back after the acts in question and, unbe-

knownst to defendant until they returned to their car,

Burney also took the victim’s cell phone and computer.

The defense theory was essentially that the victim

This Court affirmed Burney’s convictions but remanded for resen-

tencing in his separate appeal. People v Burney, unpublished opinion per

curiam of the Court of Appeals, issued August 25, 2011 (Docket No.

298620). Burney is not binding, and we have not considered it in deciding

the instant appeal, but we note that the Burney panel resolved the

alternate-juror issue, the only issue these appeals have in common, in

accord with our own resolution in this case. Although we will refer to

both Burney and Mahone as “codefendants,” Mahone will be referred to

only as defendant.

2011] P

EOPLE V

AHONE

211

invented the claimed sexual assault as vengeance for

the theft and the refusal to pay.

Defendant argues that the trial court erred by admit-

ting several instances of inadmissible hearsay evidence,

thereby requiring a new trial. We review preserved

evidentiary issues for an abuse of discretion. People v

Smith, 456 Mich 543, 549; 581 NW2d 654 (1998). An

abuse of discretion occurs when the court chooses an

outcome that falls outside the range of reasonable and

principled outcomes. People v Unger, 278 Mich App 210,

217; 749 NW2d 272 (2008). We agree that in a case that

turns entirely on the jury’s credibility determinations,

it would be very difficult to deem any error harmless.

However, to the minimal extent there may be any

evidentiary errors in this matter, they were, or could

have been, corrected by curative instructions. Accord-

ingly, we find no basis for reversal.

Defendant first argues that inadmissible and preju-

dicial hearsay was admitted through the testimony of a

police officer, who testified that she confirmed with

unidentified inhabitants of an adjacent hotel room that

they had heard a disturbance. The officer initially

testified that the victim had stated that she screamed

and that the neighbors had said they heard screaming,

but the inadmissible statements were struck and the

jury was instructed to disregard them. Jurors are pre-

sumed to follow their instructions, and it is presumed

that instructions cure most errors. See People v Abra-

ham, 256 Mich App 265, 279; 662 NW2d 836 (2003).

The prosecutor discussed the officer’s confirmation of

“a disturbance” during closing argument, but did not

state that the officer had confirmed the screaming. This

was a fair response to defendant’s explicit testimony

that there was no screaming and, by implication, no

disturbance.

212 294 M

ICH

208 [Sept

Defendant also argues that further inadmissible

hearsay was admitted through the same officer’s testi-

mony that the victim said she had been threatened with

a large vodka bottle. This is a closer question because

the officer did, in fact, testify that the victim “said that

it had been used, um, in a threatening manner.” De-

fense counsel immediately objected, but the trial court

did not rule on the objection; instead, the prosecutor

immediately rephrased the question. Significantly, the

officer’s testimony was not responsive. She was asked

only whether her attention had been directed to a bottle

at the crime scene, not why. In any event, unresponsive

answers may “ ‘work a certain amount of mischief with

the jury,’ ” but they are generally not considered preju-

dicial errors unless egregious or not amenable to a

curative instruction. People v Barker, 161 Mich App

296, 305-307; 409 NW2d 813 (1987), quoting 2

Gillespie, Michigan Criminal Law & Procedure (2d ed),

§ 600, pp 203-204; see also People v Waclawski, 286

Mich App 634, 709-710; 780 NW2d 321 (2009). We do

not find this testimony egregious, and although the

statement could easily have been struck, defense coun-

sel did not make a request to strike, possibly because at

that point, it would simply have drawn more attention

to the statement. The officer’s testimony was not a

prejudicial error.

However, we disagree with the prosecutor’s argu-

ment that it was admissible pursuant to MRE

801(d)(1)(B) (prior consistent statement). Under that

rule, a statement is admissible if four elements are

satisfied:

“(1) the declarant must testify at trial and be subject to

cross-examination; (2) there must be an express or implied

charge of recent fabrication or improper influence or

motive of the declarant’s testimony; (3) the proponent

must offer a prior consistent statement that is consistent

2011] P

EOPLE V

AHONE

213

with the declarant’s challenged in-court testimony; and, (4)

the prior consistent statement must be made prior to the

time that the supposed motive to falsify arose.” [People v

Jones, 240 Mich App 704, 707; 613 NW2d 411 (2000)

(citations omitted).]

The fourth element is not met here, because the “sup-

posed motive to falsify” was the codefendants’ claimed

refusal to pay and subsequent theft of the victim’s cell

phone and computer when they left the hotel room after

being interrupted. Consequently, the alleged motive to

falsify would have arisen before the victim talked to the

officer.

In contrast, defendant’s next assertion of inadmis-

sible hearsay was properly admitted pursuant to MRE

801(d)(1)(B). The victim’s coworker, who was respon-

sible for receiving contacts from customers and direct-

ing them to the victim, testified that the victim called

her shortly after the coworker had directed defendant

to the victim’s hotel room. The coworker testified,

consistently with the victim’s own testimony, that the

victim told the coworker that she had not been expect-

ing two customers to arrive and would call the coworker

back. Significantly, defendant’s testimony was that the

victim admitted him and Burney without any complica-

tion, thereby impliedly charging that the victim had

fabricated her testimony about the telephone call. And

critically, this telephone call would have occurred before

the victim would have had any motive to falsify, no

matter which version of events is correct. The cowork-

er’s testimony about the victim’s telephone call was

properly admitted.

Defendant also argues that statements the victim

made to the nurse who conducted a rape examination

should not have been admitted. Statements made for

the purpose of medical treatment are admissible pursu-

214 294 M

ICH

208 [Sept

ant to MRE 803(4) if they were reasonably necessary for

diagnosis and treatment and if the declarant had a

self-interested motivation to be truthful in order to

receive proper medical care. This is true irrespective of

whether the declarant sustained any immediately ap-

parent physical injury. People v Garland, 286 Mich App

1, 8-10; 777 NW2d 732 (2009). Particularly in cases of

sexual assault, in which the injuries might be latent,

such as contracting sexually transmitted diseases or

psychological in nature, and thus not necessarily physi-

cally manifested at all, a victim’s complete history and

a recitation of the totality of the circumstances of the

assault are properly considered to be statements made

for medical treatment. Id. at 9-10; People v McElhaney,

215 Mich App 269, 282-283; 545 NW2d 18 (1996). Thus,

statements the victim made to the nurse were all

properly admissible pursuant to MRE 803(4).

Finally, defendant argues that he was denied his

right to a fair trial when the trial court removed a juror

after the jury had begun deliberations and replaced that

juror with the alternate juror instead of granting a

mistrial. Although we would have preferred a better

record, we do not conclude that the trial court abused

its discretion or denied defendant a fair trial. The trial

court’s decision whether to remove a juror is reviewed

for an abuse of discretion. People v Tate, 244 Mich App

553, 559; 624 NW2d 524 (2001). Constitutional issues,

such as the right to a fair trial, are reviewed de novo.

People v Idziak, 484 Mich 549, 554; 773 NW2d 616

(2009).

During voir dire, the juror explained that she had

friends who were victims of sexual assault and who had

been accused of sexual assault. She indicated, however,

that she could be fair and impartial, although she was

pregnant and would have a hard time paying her bills if

2011] P

EOPLE V

AHONE

215

she missed many days of work. After the jury was

charged, it requested that the victim’s telephone call to

911 be replayed twice. The jury also requested that

defendant’s testimony be replayed, but changed its

mind after again reviewing CJI2d 8.1 (intentional as-

sistance) and CJI2d 18.2 (unarmed robbery). The juror

then sent a note that stated in relevant part:

I need to be dismissed/removed from the Jury at this

time. Mentally I am really unable to proceed in this case. I

feel myself about to have another mental breakdown and

it’s not good for me and my unborn child. (Stress). I cried

over the break and can’t really stop crying and talking to

one of the other Jurors it all came out and my true feelings

and personal biases is really taking an infact [sic] and I

don’t think its fair. I am stressing myself out + my stomach

is feeling pain. So I am scared that I am going to go into

early labor because the case is taking a toll on me. I am

unable to put behind me my personal + past experiences in

coming to a lodgical [sic] conclusion. Please can you please

remove me + because of this I am putting our delibeattion

[sic] at a stand by.

The juror was brought back to the courtroom by herself

and explicitly told not to discuss how the voting stood

but was also informed that she had to explain why she

felt she could not deliberate.

Unfortunately, neither the court nor any of the

attorneys asked whether she was experiencing stress

because she held a minority viewpoint in the jury vote,

irrespective of what that viewpoint might have been.

However, contrary to defendant’s pure speculation, the

record that was made strongly suggests otherwise,

particularly given her direct and explicit denial that she

was being maltreated by the other jurors. In fact, the

more rational interpretation of the juror’s statements

would be that she may not have held a view at all. It is

abundantly clear from the record that the juror was

216 294 M

ICH

208 [Sept

experiencing more than sufficient physical and emo-

tional strain to warrant her removal from the jury, even

absent her unambiguous explanation that she simply

could not continue deliberating. The record shows that

the juror grossly underestimated the extent to which

she would become emotionally entangled when trying

to reach an actual conclusion about the evidence, and

she tried to do the right thing. The trial court did not

abuse its discretion by removing the juror.

Defendant relies on Tate, 244 Mich App at 564, to

support his argument that there was a danger of the

alternate juror being coerced by the other jurors or that

coercion actually occurred. At the time Tate was de-

cided, MCR 6.411 did not permit an alternate juror,

once discharged, to be recalled, although subsequent

reversal of a conviction would only be required if the

procedure actually prejudiced the defendant. Id. How-

ever, MCR 6.411 was amended a few months later and

now explicitly permits the trial court to retain the

alternate juror, and it merely requires that if the

alternate juror replaces a juror after deliberations have

begun, the trial court must instruct the jury to begin its

deliberations anew. This is consistent with then re-

cently modified FR Crim P 24(c)(3). Id. at 563 n 1, 565.

The portion of the transcript at which the alternate

juror was selected was not transmitted to us, and it

appears that the trial court’s instruction to begin delib-

erations anew was not transcribed at all. However, it is

clear from the record we do have that the alternate

juror was properly instructed before his initial release

from jury deliberations to not discuss the case or review

any media concerning the case, the alternate juror

complied with that instruction, and the jury was, in

fact, properly instructed to begin deliberations anew.

Defendant does not argue that the jury or the juror was

2011] P

EOPLE V

AHONE

217

not properly instructed, and the jury is presumed to

have followed its instructions. Abraham, 256 Mich App

at 279.

We find no indication in the record that the jury could

not or did not follow that instruction. Because it is

again pure speculation that the alternate juror was

coerced, we conclude that defendant was not prejudiced

by the substitution of the alternate juror.

Affirmed.

AVANAGH

and J

ANSEN

, JJ., concurred with R

ONAYNE

RAUSE

,P.J.

218 294 M

ICH

208 [Sept

PEOPLE v BYLSMA

Docket No. 302762. Submitted September 7, 2011, at Grand Rapids.

Decided September 27, 2011, at 9:05 a.m. Affirmed in part,

reversed in part, and remanded, 493 Mich 17.

Ryan M. Bylsma, a registered primary caregiver under the Michigan

Medical Marihuana Act (MMMA), MCL 333.26421 et seq., was

charged in the Kent Circuit Court with manufacturing marijuana

in violation of MCL 333.7401(2)(d)(iii). Defendant moved to dis-

miss the charge, asserting that as the registered primary caregiver

of two registered qualifying patients, he was allowed to possess 24

marijuana plants and that the remainder of the 88 plants seized by

the police from the defendant’s leased unit in a building belonged

to other registered primary caregivers and registered qualifying

patients whom defendant had offered to assist in growing and

cultivating the plants. The court, George S. Buth, J., denied the

motion, holding that the MMMA contains the strict requirement

“that each set of 12 plants permitted under the MMMA to meet the

medical needs of a specific qualifying patient must be kept in an

enclosed, locked facility that can only be accessed by one indi-

vidual,” that defendant had failed to comply with that require-

ment, and that defendant was therefore not entitled to invoke

either the immunity provided by § 4(b) of the MMMA, MCL

333.26424(b), or the affirmative defense contained in § 8 of the

MMMA, MCL 333.26428. Defendant appealed by leave granted.

The Court of Appeals held:

1. The MMMA provides that a registered qualifying patient

may have no more than one registered primary caregiver and a

registered primary caregiver may assist no more than five regis-

tered qualifying patients. MCL 333.26426(d). There is a presump-

tion that a registered qualifying patient or a registered primary

caregiver is engaged in the medical use of marijuana in accordance

with the provisions of the MMMA if the patient or the primary

caregiver possesses a registry identification card and possesses an

amount of marijuana that does not exceed the amount allowed

under the MMMA. MCL 333.26424(d). Defendant, the registered

primary caregiver for two qualifying patients, was immune from

arrest, prosecution, or penalty in any manner provided, in part,

that he did not possess more than 24 marijuana plants. MCL

2011] P

EOPLE V

YLSMA

219

333.26424(b). Defendant does not dispute that, under the facts of

this case, he was in possession of all the 88 plants seized.

2. The plain language of MCL 333.26424(a) and (b) provides

that only one person may possess 12 marijuana plants for each

specific registered qualifying patient’s medical use of marijuana.

That person is either the registered qualifying patient himself or

herself, if the patient has not specified that a primary caregiver be

allowed to cultivate his or her marijuana plants, or the patient’s

primary caregiver, if the patient has specified that the caregiver be

allowed to cultivate his or her marijuana plants. Under the plain

language of § 6 of the MMMA, MCL 333.26426, the registered

qualifying patient or the qualifying patient’s registered primary

caregiver, but not both, may possess marijuana plants for the

patient’s medical use of marijuana.

3. Because the MMMA did not repeal any of the provisions of

the Public Health Code making it illegal for a person to possess,

use, manufacture, create, or deliver marijuana, any possession of

marijuana that does not fall within the narrowly tailored protec-

tions of the MMMA remains illegal under the Public Health Code.

4. Defendant was not authorized to possess the marijuana

plants that were being grown and cultivated for registered quali-

fying patients that he was not connected to through the Michigan

Department of Community Health’s registration process. Those

plants could only be possessed by the registered qualifying patient

for whose treatment they were grown or the qualifying patient’s

registered primary caregiver. Defendant was not entitled to the

presumption that he was engaged in the medical use of marijuana

provided in § 4(d) of the MMMA or the immunity granted in § 4(b)

of the MMMA with regard to those plants. The trial court’s

determination that defendant is not entitled to invoke the immu-

nity provided in § 4(b) must be affirmed, albeit for a different

reason than that relied on by the trial court. The trial court

properly held that, having failed to comply with the requirements

of § 4(b) of the MMMA, defendant was not entitled to the affirma-

tive defense provided in § 8 of the MMMA.

Affirmed.

1. C

ONTROLLED

UBSTANCES —

EDICAL

ARIJUANA —

RESUMPTIONS

There is presumption that a person who is either a registered

qualifying patient or a registered primary caregiver under the

Michigan Medical Marihuana Act is engaged in the medical use of

marijuana in accordance with the provisions of the act if the

220 294 M

ICH

219 [Sept

person possesses a registry identification card and an amount of

marijuana that does not exceed the amount allowed under the act

(MCL 333.26424[d]).

2. C

ONTROLLED

UBSTANCES —

EDICAL

ARIJUANA —

OSSESSION OF

ARIJUANA

FOR

EDICAL

Only one person may possess 12 marijuana plants for each specific

registered qualifying patient’s medical use of marijuana under the

Michigan Medical Marihuana Act; that person is either the pa-

tient, if the patient has not specified that a registered primary

caregiver be allowed to cultivate his or her marijuana plants, or

the patient’s primary caregiver, if the patient has specified that the

caregiver be allowed to cultivate the patient’s marijuana plants;

either the registered qualifying patient or the qualifying patient’s

registered primary caregiver, but not both, may possess the plants

for the patient’s medical use of marijuana (MCL 333.26426).

3. C

ONTROLLED

UBSTANCES —

EDICAL

ARIJUANA —

OSSESSION OF

ARIJUANA

FOR

EDICAL

SE —

RESUMPTIONS —

MMUNITY —

FFIRMATIVE

E-

FENSES

A registered primary caregiver under the Michigan Medical Mari-

huana Act may not possess marijuana plants that were not grown

and cultivated for registered qualifying patients to whom the

caregiver is connected to through the Michigan Department of

Community Health’s registration process; a primary caregiver

who violates this provision is not entitled to the presumption in

§ 4(d) of the act that he or she was engaged in the medical use of

marijuana, the immunity provided by § 4(b) of the act, or the

affirmative defense provided in § 8 of the act (MCL 333.26424[b]

and [d]; MCL 333.26428).

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, William A. Forsyth, Prosecuting At-

torney, and Timothy K. McMorrow and Gary A. Moore,

Assistant Prosecuting Attorneys, for the people.

Bruce Alan Block and Joel T. Brusk for defendant.

Before: G

LEICHER

,P.J., and H

OEKSTRA

and S

TEPHENS

JJ.

OEKSTRA

, J. In this case involving the Michigan

Medical Marihuana Act (MMMA), MCL 333.26421 et

2011] P

EOPLE V

YLSMA

221

seq., defendant appeals by leave granted the trial

court’s order denying his motion to dismiss a charge of

manufacturing marijuana,

MCL 333.7401(2)(d)(iii).

Under the MMMA, a registered primary caregiver is

allowed to possess 12 marijuana plants for each regis-

tered qualifying patient the primary caregiver is con-

nected to through the Michigan Department of Com-

munity Health’s (MDCH) registration process. Because

defendant possessed marijuana plants that were being

grown and cultivated for registered qualifying patients

that were not connected to him through the MDCH’s

registration process, defendant was not entitled to

immunity under § 4(b) of the MMMA, MCL

333.26424(b). In addition, because defendant did not

comply with the requirements of § 4(b), defendant is

not entitled to assert the § 8 affirmative defense of

medical purpose, MCL 333.26428. For these reasons, we

affirm the trial court’s order denying defendant’s mo-

tion to dismiss.

I. FACTS AND PROCEDURAL HISTORY

On September 15, 2010, the Grand Rapids police,

acting under a search warrant, seized 88 marijuana

plants that were in three grow booths in Unit 15E of the

building at 470 Market Avenue. Unit 15E was leased to

defendant. The police also discovered five ounces of

usable marijuana, fertilizer, soil, a water-osmosis sys-

tem, grow lights, and security cameras. In addition, the

police found photocopies of defendant’s primary care-

giver cards for two patients, letters from the MDCH

approving defendant’s status as a primary caregiver,

and an expired card for a third patient who had desig-

Although the statutory provisions at issue refer to “marihuana,” by

convention this Court uses the more common spelling “marijuana” in its

opinions.

222 294 M

ICH

219 [Sept

nated defendant as his primary caregiver. The police

also found MDCH paperwork showing that defen-

dant’s brother, Eric Bylsma, was a registered primary

caregiver.

Defendant was charged with manufacturing mari-

juana, MCL 333.7401(2)(d)(iii), subject to an enhanced

sentence under MCL 333.7413(2). Defendant moved to

dismiss the charge under § 4 of the MMMA. He asserted

that, as the registered primary caregiver of two quali-

fying patients, he was allowed to possess 24 marijuana

plants, and he claimed that the remainder of the 88

plants seized by the police belonged to other primary

caregivers and qualifying patients. Defendant argued

that the MMMA permits primary caregivers and quali-

fying patients to share a common grow area for their

marijuana plants, as long as the plants are grown in a

secured area. In addition, defendant “reserve[d] his

right to raise the Affirmative Defense under Section 8 of

the MMMA” at trial. The trial court held a two-day

evidentiary hearing on defendant’s motion to dismiss.

Defendant testified that, on September 15, 2010, he

was the registered primary caregiver for two qualifying

patients. He had leased Unit 15E to grow marijuana.

According to defendant, Unit 15E was “exactly what

[he] needed”; it had a large steel door and a lock on the

front of the building, so that Unit 15E was “double

locked.” It was a “secured, safe location.” Defendant

built three grow booths, each with a latch, in Unit 15E

to grow marijuana plants. Defendant testified that 24 of

the 88 marijuana plants seized on September 15, 2010,

belonged to him and were being grown for his two

qualifying patients. The remaining plants belonged to

other primary caregivers or qualifying patients, most of

whom defendant had offered to assist in growing and

cultivating the plants. According to defendant, it was

2011] P

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223

“pretty obvious” which plants belonged to which care-

givers and patients because the plants were of different

strains and each plant had a tag.

The other primary caregivers and qualifying patients

that had marijuana plants growing in Unit 15E also

testified at the evidentiary hearing. Each presented a

registry identification card from the MDCH.

James Wagner testified that he was a registered

qualifying patient, who was serving as his own care-

giver. However, defendant had agreed to assist Wagner

by providing him with 12 “start-up plants.” After the 12

marijuana plants had roots, defendant would give them

to Wagner and Wagner would continue to grow them for

his medication. The 12 plants were being kept in Unit

15E. Wagner had never been to Unit 15E.

Nathaniel Dixon testified that he was a registered

primary caregiver for one qualifying patient. He was in

the process of building his own grow room, but until the

room was completed, he was growing 12 marijuana

plants for his patient in Unit 15E. Because Dixon knew

little about how to grow marijuana plants, defendant

was training him. Dixon had been to Unit 15E four or

five times to care for his plants. Dixon did not know

which grow booth contained his plants, but he would be

able to recognize his pots.

Shannon VanderZee testified that he was a registered

primary caregiver for three patients. He attempted to

grow marijuana plants in his basement. When his at-

tempts were unsuccessful, he consulted with defendant.

Defendant took 12 “cuttings and clones,” as well as some

fresh cuttings, from VanderZee, with the intent to fix the

plants. Once the marijuana plants were rooted, defendant

was to return them to VanderZee. VanderZee had never

been to Unit 15E, but he believed that the 12 plants

defendant had taken from his basement belonged to him.

224 294 M

ICH

219 [Sept

Lawrence Huck testified that he was a registered

qualifying patient and a registered primary caregiver.

Defendant was serving as Huck’s primary caregiver.

Huck had attempted to grow marijuana plants, but was

unsuccessful. Huck took four plants to defendant for

assistance. He left the plants with defendant at Unit

15E, where defendant cared for the plants while teach-

ing Huck how to do so. Huck visited Unit 15E three or

four times.

Eric Bylsma testified that he was a registered quali-

fying patient and a registered primary caregiver for one

qualifying patient. Twenty-four of the seized plants

belonged to him; 12 were for him as a patient, and 12

were for the patient for whom he served as primary

caregiver. Eric did not know which grow booth con-

tained his marijuana plants because he had not been to

Unit 15E for a couple of days and the plants got moved

around depending on which light they needed to be

under. He testified that he could identify his plants by

looking at them.

The trial court denied defendant’s motion to dismiss.

According to the trial court, the MMMA contains the

strict requirement “that each set of 12 plants permitted

under the MMMA to meet the medical needs of a

specific individual be kept in an enclosed, locked facility

that can only be accessed by one person.” Because the

evidence demonstrated that Unit 15E was secured by a

single lock, that several primary caregivers and quali-

fying patients used Unit 15E to grow marijuana plants,

and that defendant had access to marijuana plants

designated for qualifying patients to whom he was not

linked through the MDCH’s registration system, the

trial court held that defendant had failed to comply with

the strict requirements of the MMMA. Thus, the trial

court held that defendant was not entitled to invoke the

2011] P

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225

immunity provided by § 4 of the MMMA or to assert the

affirmative defense contained in § 8.

II. ANALYSIS

On appeal, defendant argues that the trial court read

into the MMMA a requirement not contained within

the plain language of the MMMA when it held that each

set of 12 marijuana plants permitted under the MMMA

for the medical needs of a specific qualifying patient

must be kept in a separate enclosed, locked facility that

can only be accessed by one individual. According to

defendant, nothing in the language of the MMMA

prohibits primary caregivers and qualifying patients

from utilizing the same enclosed, locked facility to grow

and cultivate marijuana plants.

A. STANDARDS OF REVIEW

We review a trial court’s decision on a motion to

dismiss charges for an abuse of discretion. People v

Kevorkian, 248 Mich App 373, 383; 639 NW2d 291

(2001). However, we review de novo the trial court’s

interpretation of the MMMA. Michigan v McQueen, 293

Mich App 644, 653; 811 NW2d 513 (2011). The MMMA

was enacted as a result of an initiative adopted by the

voters in the November 2008 election. Id. at 658.

“The words of an initiative law are given their ordinary

and customary meaning as would have been understood by

the voters.” Welch Foods, Inc v Attorney General, 213 Mich

App 459, 461; 540 NW2d 693 (1995). We presume that the

meaning as plainly expressed in the statute is what was

intended. Id. This Court must avoid a construction that

would render any part of a statute surplusage or nugatory,

and “we must consider both the plain meaning of the

critical words or phrases as well as their placement and

purpose in the statutory scheme.” People v Williams, 268

226 294 M

ICH

219 [Sept

Mich App 416, 425; 707 NW2d 624 (2005). [People v

Redden, 290 Mich App 65, 76-77; 799 NW2d 184 (2010)

(alteration omitted).]

B. THE MMMA

Under the Public Health Code (PHC), MCL 333.1101 et

seq., it is illegal for a person to possess, use, manufacture,

create, or deliver marijuana. McQueen, 293 Mich App at

658; see also MCL 333.7401(2)(d); MCL 333.7403(2)(d);

MCL 333.7404(2)(d). Pursuant to § 7(a) of the MMMA,

the “medical use of marihuana is allowed under state law

to the extent that it is carried out in accordance with the

provisions” of the MMMA.

MCL 333.26427(a). Nonethe-

less, the MMMA operates under the framework estab-

lished by the PHC, McQueen, 293 Mich App at 658,

because the MMMA did not repeal any drug laws,

Redden, 290 Mich App at 92 (O’C

ONNELL

,P.J., concur-

ring). Rather, the MMMA sets forth very limited cir-

cumstances under which those involved with the use of

marijuana may avoid criminal liability. People v King,

291 Mich App 503, 509; 804 NW2d 911 (2011).

1. SECTION 4 IMMUNITY

The MMMA provides a registration system for

“qualifying patients” and “primary caregivers.”

See

MCL 333.26426. When applying for a “registry identi-

The “medical use” of marijuana is defined as “the acquisition,

possession, cultivation, manufacture, use, internal possession, delivery,

transfer, or transportation of marihuana or paraphernalia relating to the

administration of marihuana to treat or alleviate a registered qualifying

patient’s debilitating medical condition or symptoms associated with the

debilitating medical condition.” MCL 333.26423(e).

A “qualifying patient” is “a person who has been diagnosed by a

physician as having a debilitating medical condition.” MCL 333.26423(h).

A “primary caregiver” is “a person who is at least 21 years old and who

2011] P

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227

fication card” with the MDCH,

a qualifying patient

must indicate whether the patient will have a primary

caregiver and, if so, must designate “whether the quali-

fying patient or primary caregiver will be allowed under

state law to possess marihuana plants for the qualifying

patient’s medical use.” MCL 333.26426(a)(5) and (6). If

the MDCH approves the qualifying patient’s applica-

tion, it must issue a registry identification card to the

patient and, if the patient has designated a primary

caregiver, it must also issue a registry identification

card to the primary caregiver. MCL 333.26426(a) and

(d). However, a qualifying patient may have no more

than one primary caregiver, and a primary caregiver

may assist no more than five qualifying patients. MCL

333.26426(d).

Section 4 of the MMMA provides immunity from

arrest and prosecution to qualifying patients and pri-

mary caregivers who have been issued and possess a

registry identification card. MCL 333.26424(a) and (b);

McQueen, 293 Mich App at 660-661. Specifically, § 4

provides, in pertinent part:

(a) A qualifying patient who has been issued and pos-

sesses a registry identification card shall not be subject to

arrest, prosecution, or penalty in any manner, or denied

any right or privilege, including but not limited to civil

penalty or disciplinary action by a business or occupational

or professional licensing board or bureau, for the medical

use of marihuana in accordance with this act, provided that

the qualifying patient possesses an amount of marihuana

that does not exceed 2.5 ounces of usable marihuana, and,

has agreed to assist with a patient’s medical use of marihuana and who

has never been convicted of a felony involving illegal drugs.” MCL

333.26423(g).

A “registry identification card” is “a document issued by the [MDCH]

that identifies a person as a registered qualifying patient or registered

primary caregiver.” MCL 333.26423(i).

228 294 M

ICH

219 [Sept

if the qualifying patient has not specified that a primary

caregiver will be allowed under state law to cultivate

marihuana for the qualifying patient, 12 marihuana plants

kept in an enclosed, locked facility. Any incidental amount

of seeds, stalks, and unusable roots shall also be allowed

under state law and shall not be included in this amount.

(b) A primary caregiver who has been issued and pos-

sesses a registry identification card shall not be subject to

arrest, prosecution, or penalty in any manner, or denied

any right or privilege, including but not limited to civil

penalty or disciplinary action by a business or occupational

or professional licensing board or bureau, for assisting a

qualifying patient to whom he or she is connected through

the [MDCH’s] registration process with the medical use of

marihuana in accordance with this act, provided that the

primary caregiver possesses an amount of marihuana that

does not exceed:

(1) 2.5 ounces of usable marihuana for each qualifying

patient to whom he or she is connected through the

[MDCH’s] registration process; and

(2) for each registered qualifying patient who has speci-

fied that the primary caregiver will be allowed under state

law to cultivate marihuana for the qualifying patient, 12

marihuana plants kept in an enclosed, locked facility; and

(3) any incidental amount of seeds, stalks, and unusable

roots.

In addition, there is a presumption that a qualifying

patient or a primary caregiver is engaged in the medical

use of marijuana in accordance with the provisions of

the MMMA if the qualifying patient or the primary

caregiver (1) possesses a registry identification card and

(2) possesses an amount of marijuana that does not

exceed the amount allowed under the MMMA. MCL

333.26424(d).

Here, on September 15, 2010, defendant was the

registered primary caregiver for two qualifying pa-

tients. Therefore, defendant was immune from “arrest,

2011] P

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229

prosecution, or penalty in any manner,” provided, in

part, that he did not possess more than 24 marijuana

plants. MCL 333.26424(b). The Court in McQueen, 293

Mich App at 654, explained the concept of possession:

The term “possession,” when used in regard to con-

trolled substances, “signifies dominion or right of control

over the drug with knowledge of its presence and charac-

ter.” People v Nunez, 242 Mich App 610, 615; 619 NW2d 550

(2000) (quotation marks and citation omitted). Possession

may be actual or constructive, and may be joint or exclu-

sive. People v McKinney, 258 Mich App 157, 166; 670 NW2d

254 (2003). “The essential issue is whether the defendant

exercised dominion or control over the substance.” Id. A

person can possess a controlled substance and not be the

owner of the substance. People v Wolfe, 440 Mich 508, 520;

489 NW2d 748 (1992).

In this case, the police seized 88 marijuana plants

from Unit 15E. Defendant does not dispute that he was

in possession of all these plants. Indeed, the evidence

produced at the evidentiary hearing established that

defendant did, in fact, posses the marijuana plants.

Defendant admitted that he leased Unit 15E for the

purpose of growing marijuana plants, and he was at

Unit 15E five to seven days a week. The 88 plants were

distributed among three grow booths, and although the

grow booths were latched, defendant testified that they

were not locked. There was no evidence that defendant

was denied access to any of the marijuana plants. Under

the circumstances, defendant clearly possessed all 88

marijuana plants. He knew of the presence and charac-

ter of the plants and he exercised dominion and control

over them.

But, despite being in possession of more marijuana

plants than permitted under the MMMA, defendant

claims that he is entitled to immunity under § 4(b)

because only 24 of the 88 plants were for his qualifying

230 294 M

ICH

219 [Sept

patients and nothing in the MMMA prohibited him

from letting other registered primary caregivers and

registered qualifying patients utilize Unit 15E to grow

and cultivate marijuana plants. We disagree.

The MMMA permits the possession and cultivation of

12 marijuana plants by a registered qualifying patient

for whose treatment of a debilitating medical condition

the marijuana plants are grown and cultivated or by the

patient’s registered primary caregiver.

Under § 4(a), a

qualifying patient, who has been issued and possesses a

registry identification card, is immune from arrest and

prosecution for the medical use of marijuana provided,

in part, that the qualifying patient does not possess

more than 12 marijuana plants and “has not specified

that a primary caregiver will be allowed under state law

to cultivate marihuana for the qualifying patient[.]”

MCL 333.26424(a). Similarly, under § 4(b), a primary

caregiver, who has been issued and possesses a registry

identification card, is immune from arrest and prosecu-

tion “for assisting a qualifying patient to whom he or

she is connected through the [MDCH’s] registration

process with the medical use of marihuana” provided,

in part, that the primary caregiver does not possess

more than 12 marijuana plants “for each registered

qualifying patient who has specified that the primary

caregiver will be allowed under state law to cultivate

marihuana for the qualifying patient[.]” MCL

333.26424(b)(2).

Because §§ 4(a) and 4(b) only allow either the regis-

tered qualifying patient or the qualifying patient’s

The MMMA requires that marijuana plants be grown in an “enclosed,

locked facility,” MCL 333.26424(a) and (b)(2), defined as “a closet, room,

or other enclosed area equipped with locks or other security devices that

permit access only by a registered primary caregiver or registered

qualifying patient,” MCL 333.26423(c). The prosecutor does not dispute

that Unit 15E was an “enclosed, locked facility.”

2011] P

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231

registered primary caregiver to possess 12 marijuana

plants, we conclude that the plain language of §§ 4(a)

and 4(b) unambiguously provides that only one person

may possess 12 marijuana plants for the registered

qualifying patient’s medical use of marijuana. That

person is either the registered qualifying patient him-

self or herself, if the qualifying patient has not specified

that a primary caregiver be allowed to cultivate his or

her marijuana plants, or the qualifying patient’s regis-

tered primary caregiver, if the qualifying patient has

specified that a primary caregiver be allowed to culti-

vate his or her marijuana plants.

That only one person—either the registered qualify-

ing patient or the qualifying patient’s registered pri-

mary caregiver—is allowed to possess marijuana plants

for the patient’s medical use of marijuana is also

reflected in § 6 of the MMMA, MCL 333.26426, which

governs registry identification cards. In an application

for a registry identification card, a qualifying patient

must submit the “[n]ame, address, and date of birth of

the qualifying patient’s primary caregiver, if any[.]”

MCL 333.26426(a)(5). If the qualifying patient has

designated a primary caregiver, the patient must also

designate on the application “whether the qualifying

patient or primary caregiver will be allowed under state

law to possess marihuana plants for the qualifying

patient’s medical use.” MCL 333.26426(a)(6) (emphasis

added). See also MCL 333.26426(e)(6), which states

that registry identification cards shall contain “[a] clear

designation showing whether the primary caregiver or

the qualifying patient will be allowed under state law to

possess the marihuana plants for the qualifying pa-

tient’s medical use, which shall be determined based

solely on the qualifying patient’s preference” (emphasis

added). “The word ‘or’ is a disjunctive term. It indicates

a choice between two alternatives.” McQueen, 293 Mich

232 294 M

ICH

219 [Sept

App at 671 (citations omitted). Accordingly, under the

plain language of § 6, the registered qualifying patient

or the qualifying patient’s registered primary caregiver,

but not both, may possess marijuana plants for the

patient’s medical use of marijuana.

Further, we reject defendant’s reliance on the fact

that the MMMA is silent regarding whether registered

qualifying patients and registered primary caregivers

may utilize the same enclosed, locked facility to grow

and cultivate marijuana plants. Because the MMMA did

not repeal any drug laws, Redden, 290 Mich App at 92

(O’C

ONNELL

,P.J., concurring), any possession of mari-

juana that does not fall within the “narrowly tailored

protections” of the MMMA, King, 291 Mich App at 509,

remains illegal under the PHC. Here, defendant was in

possession of the 88 marijuana plants that were seized

from Unit 15E. But, the MMMA only authorized him to

possess 12 marijuana plants for each registered quali-

fying patient that he was connected to through the

MDCH’s registration process, provided that the quali-

fying patient designated him to be allowed to cultivate

the plants. Defendant was not authorized to possess the

marijuana plants that were being grown and cultivated

for registered qualifying patients that he was not con-

nected to through the MDCH’s registration process;

those marijuana plants could only be possessed by the

registered qualifying patient for whose treatment they

were grown or the qualifying patient’s registered pri-

mary caregiver.

Consequently, defendant’s possession of all 88 mari-

juana plants seized from Unit 15E was not permitted by

the MMMA. Defendant, therefore, is not entitled to the

presumption of § 4(d) that he was engaged in the

medical use of marijuana or to the immunity granted in

§ 4(b) to primary caregivers who have been issued and

2011] P

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233

possess a registry identification card. We do not address

the trial court’s holding that the MMMA requires a

registered primary caregiver to keep each of his or her

qualifying patients’ 12 marijuana plants in a separate

enclosed, locked facility. That issue is not before us on

the facts of the present case, and we express no opinion

on that issue. Nonetheless, because we agree with the

trial court that defendant did not comply with the

provisions of the MMMA, albeit for a different reason,

we affirm the trial court’s holding that defendant is not

entitled to invoke the immunity of § 4(b). People v Lyon,

227 Mich App 599, 612-613; 577 NW2d 124 (1998).

2. SECTION 8 AFFIRMATIVE DEFENSE

Section 8 of the MMMA provides an affirmative

defense of “medical purpose” that a patient and a

patient’s primary caregiver may assert in any prosecu-

tion involving marijuana. MCL 333.26428. MCL

333.26428(a) provides:

Except as provided in section 7, a patient and a patient’s

primary caregiver, if any, may assert the medical purpose

for using marihuana as a defense to any prosecution

involving marihuana, and this defense shall be presumed

valid where the evidence shows that:

(1) A physician has stated that, in the physician’s

professional opinion, after having completed a full assess-

ment of the patient’s medical history and current medical

condition made in the course of a bona fide physician-

patient relationship, the patient is likely to receive thera-

peutic or palliative benefit from the medical use of mari-

huana to treat or alleviate the patient’s serious or

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition;

(2) The patient and the patient’s primary caregiver, if

any, were collectively in possession of a quantity of mari-

huana that was not more than was reasonably necessary to

234 294 M

ICH

219 [Sept

ensure the uninterrupted availability of marihuana for the

purpose of treating or alleviating the patient’s serious or

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition; and

(3) The patient and the patient’s primary caregiver, if

any, were engaged in the acquisition, possession, cultiva-

tion, manufacture, use, delivery, transfer, or transportation

of marihuana or paraphernalia relating to the use of

marihuana to treat or alleviate the patient’s serious or

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition. [Emphasis

added.]

In King, 291 Mich App at 505-506, the defendant,

who was a registered qualifying patient, was growing

marijuana plants in a chain-link dog kennel and an

unlocked living room closet. He was charged with two

counts of manufacturing marihuana. The defendant

asserted the § 8 affirmative defense and moved to

dismiss the charges. On appeal, this Court held that

neither the dog kennel nor the unlocked closet was an

enclosed, locked facility. Id. at 512-514. The Court

further held that because the defendant had not com-

plied with the growing requirements of § 4, the defen-

dant was not entitled to assert the § 8 affirmative

defense. Id. at 510. It stated:

In Redden, this Court held that the statute permits an

unregistered patient to assert the affirmative defense un-

der § 8 if he or she meets the requirements of § 8. Redden,

290 Mich App at 81, 85. We hold that § 8 permits a

“registered qualifying patient” to raise an affirmative

defense under § 8, just as an unregistered defendant may

under Redden. We further hold that the express reference to

§ 7 and the statement in § 7(a) that medical use of mari-

juana must be carried out in accordance with the provisions

of the MMMA require defendant to comply with the provi-

sions of § 4 concerning growing marijuana. And in any

case, § 4 applies to defendant because he grew marijuana

2011] P

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YLSMA

235

under a claim that he is a qualifying patient in possession

of a registry identification card. We hold that because

defendant did not comply with § 4, he also failed to meet

the requirements of § 8 and, therefore, he is not entitled to

the affirmative defense in § 8 and is not entitled to dis-

missal of the charges. [Id. at 509-510 (emphasis added).]

Because defendant possessed more than 12 mari-

juana plants for each qualifying patient that he was

connected to through the MDCH’s registration process,

defendant failed to comply with the requirements of

§ 4(b). Having failed to comply with the requirements of

§ 4(b), defendant is not entitled to the § 8 affirmative

defense. King, 291 Mich App at 510. Because we agree

with the trial court that defendant did not comply with

the requirements of § 4(b), albeit for a different reason,

we affirm the trial court’s holding that defendant is not

entitled to assert the § 8 affirmative defense. Lyon, 227

Mich App at 612-613.

III. CONCLUSION

We affirm the trial court’s order denying defendant’s

motion to dismiss the charge of manufacturing mari-

juana. Because defendant possessed marijuana that was

being grown for the treatment of debilitating conditions

of qualifying patients that were not connected to him

through the MDCH’s registration process, defendant is

not entitled to immunity under § 4(b) of the MMMA. In

addition, because defendant failed to comply with the

requirements of § 4(b), he is not entitled to assert the

§ 8 affirmative defense.

Affirmed.

LEICHER

,P.J., and S

TEPHENS

, J., concurred with

OEKSTRA

,J.

236 294 M

ICH

219 [Sept

PEOPLE v HARTUNIEWICZ

Docket No. 298163. Submitted September 8, 2011, at Grand Rapids.

Decided September 29, 2011, at 9:00 a.m.

A jury convicted Benjamin A. Hartuniewicz in the Kent Circuit Court of

possessing ketamine in violation of MCL 333.7403(2)(b)(ii)ofthe

controlled substances act (CSA), MCL 333.7101 et seq., and he was

sentenced to 48 months of probation. At trial, defendant moved for a

directed verdict on the ground that the prosecution had failed to

establish that the ketamine was not “in a proportion or concentration

to vitiate the potential for abuse” and therefore excluded from the

schedule of controlled substances under MCL 333.7227(1). The court,

James R. Redford, J., denied the motion, and also denied defendant’s

request for a special jury instruction based on MCL 333.7227(1).

Defendant appealed.

The Court of Appeals held:

1. The prosecution was not required to disprove that the

ketamine defendant possessed was excluded from the schedule of

controlled substances under MCL 333.7227(1) for being in a

proportion or concentration that vitiated the potential for abuse.

Exceptions, exemptions, or exclusions from the legal definition of

a controlled substance are not elements of controlled-substance

offenses; rather, they are affirmative defenses that a defendant

may present to rebut the state’s evidence.

2. To prove possession of ketamine, the prosecution was re-

quired to establish (1) that the substance in question was ket-

amine, (2) that defendant possessed some amount of ketamine, (3)

that defendant was not authorized to possess ketamine, and (4)

that defendant knowingly possessed the ketamine. Because the

evidence, when viewed in the light most favorable to the prosecu-

tion, was sufficient to support a finding of guilt with respect to

each element of the offense, the trial court properly denied

defendant’s motion for a directed verdict.

3. The trial court properly denied defendant’s request for a

special jury instruction based on MCL 333.7227(1) because defen-

dant presented no evidence that the ketamine found inside his

2011] P

EOPLE V

ARTUNIEWICZ

237

residence was mixed with any other substance, much less that it

was in a proportion or concentration that vitiated its potential for

abuse.

Affirmed.

RIMINAL

AW —

ONTROLLED

UBSTANCES —

LEMENTS OF

OSSESSION —

XCLUSIONS FROM

CHEDULES OF

ONTROLLED

UBSTANCES

To prove possession of ketamine, the prosecution was required to

establish (1) that the substance in question was ketamine, (2) that

defendant possessed some amount of ketamine, (3) that defendant

was not authorized to possess ketamine, and (4) that defendant

knowingly possessed the ketamine; the prosecution was not re-

quired to establish that the ketamine was not excluded from the

schedules of controlled substances by MCL 333.7216(1)(h) for

being in a proportion or concentration that vitiated the potential

for abuse (MCL 333.7401 et seq.).

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, William A. Forsyth, Prosecuting At-

torney, and Timothy K. McMorrow, Assistant Prosecut-

ing Attorney, for the people.

Charles B. Covello for defendant.

Before: G

LEICHER

,P.J., and H

OEKSTRA

and S

TEPHENS

JJ.

LEICHER

,P.J. A jury convicted defendant Benjamin

Alan Hartuniewicz of possession of ketamine, a sched-

ule 3 controlled substance,

in violation of MCL

333.7403(2)(b)(ii) of the controlled substances act

(CSA), MCL 333.7101 et seq.

Defendant argues that the

prosecution failed to establish, as an element of the

“Any material, compound, mixture, or preparation containing any

quantity of ketamine” is included within the definition of a schedule 3

controlled substance by MCL 333.7216(1)(h). Ketamine is also federally

classified as a schedule III controlled substance. See 21 CFR

1308.13(c)(7).

The jury acquitted defendant of maintaining a drug house in violation

of MCL 333.7405(d).

238 294 M

ICH

237 [Sept

charged offense, that the ketamine was not “in a

proportion or concentration to vitiate the potential for

abuse,” because such diluted substances are “excluded”

from the CSA by MCL 333.7227(1). We hold that the

exclusion in MCL 333.7227(1) is not an element of a

possession offense, but an affirmative defense for which

a defendant bears the burden of proof. Because defen-

dant presented no evidence demonstrating that the

ketamine was mixed with other substances or was “in a

proportion or concentration to vitiate the potential for

abuse,” we affirm the trial court’s denial of defendant’s

motion for a directed verdict and rejection of defen-

dant’s proposed jury instruction.

I. FACTUAL AND PROCEDURAL HISTORY

On June 24, 2009, defendant’s probation officer and

the local probation supervisor went to defendant’s

home for an unscheduled residence visit. When defen-

dant came to the door, his pupils were dilated, his face

was flushed, and he acted confused and disoriented. The

officers secured defendant’s consent to search the resi-

dence. They found a plate under defendant’s bed that

held a white powdery substance, an assortment of pills

and tablets, a straw, defendant’s driver’s license, and a

small plastic bag containing a white powdery substance.

The officers also found an empty bag coated with a

white powdery residue. Defendant admitted to the

probation officers that certain items were prescription

medications that he had received from friends. Defen-

dant claimed that he purchased the other substances

over the Internet. Defendant further stated that he

used the substances to “get high.”

Subsequent forensic testing negated the presence of

any controlled substances in the pills, tablets, and powder

on the plate and in the full bag. However, the white

2011] P

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ARTUNIEWICZ

239

powdery residue found on the otherwise empty bag was

analyzed and found to contain less than one milligram of

ketamine.

During cross-examination of the forensic

analyst, defense counsel inquired about the proportion

of ketamine to other substances found within the resi-

due. The witness testified that he had not identified any

other substances within the residue or analyzed the

ratio of ketamine to other substances. The witness

further testified that such quantitative analysis would

have been difficult to conduct on such a small sample.

At the close of the prosecution’s case in chief, defense

counsel moved for a directed verdict. Defense counsel

argued that the prosecution had the burden to establish

that a substance is proscribed by the CSA and is not

excluded from the definition of “controlled substance”

under MCL 333.7227(1) for not being “in a proportion or

concentration to vitiate the potential for abuse....” In

other words, according to defendant, to establish the

elements of the charged possession offense, the prosecu-

tion was required to establish that the ketamine residue

was not so diluted by other substances as to vitiate its

potential for abuse. Because the prosecution presented no

evidence in that regard, defense counsel argued that it

failed to prove the elements of the crime as a matter of law.

In the alternative, defense counsel requested the court to

read the exclusion of MCL 333.7227(1) into the jury

instructions.

Ketamine is “a legitimate intravenous anesthetic” used for both veteri-

nary and human purposes, but it is also used “as a hallucinogen by

recreational drug users,” 9 Attorneys’ Textbook of Medicine (3d ed), ¶ 64.72,

and as a “date rape drug,” see 21 USC 841(g)(2)(A)(ii); Date Rape

Drugs: XTC, Rohypnol, Ketamine, University of Notre Dame Office of

Alcohol & Drug Education <http://oade.nd.edu/educate-yourself-

drugs/rohypnol-flunitrazepam/> (accessed September 13, 2011); see

also Ketamine, Center for Substance Abuse Research <http://

www.cesar.umd.edu/cesar/drugs/ketamine.asp> (accessed September 13,

2011).

240 294 M

ICH

237 [Sept

The trial court denied defendant’s motion for di-

rected verdict and his request for a special jury instruc-

tion. In relation to the motion for directed verdict, the

court noted that the evidence, taken in the light most

favorable to the prosecution, was sufficient to support a

guilty verdict for possession. Specifically, the evidence

tended to prove that defendant knowingly possessed

ketamine. In relation to the jury instructions, the court

avoided answering the legal question defendant raised

regarding the interpretation of the statutes. Instead,

the court decided the issue on the evidence:

I believe as a matter of law that there was just not any

evidence to suggest that it was in a proportion or concen-

tration to vitiate the potential for abuse that’s before the

Court. And I know the defense does not have the burden to

do anything, of course, but there’s just no evidence of it, in

the Court’s estimation, that it’s been somehow diluted to

such a level that it can’t have any potential, and for that

reason I’m respectfully readopting my decision not to give

a special instruction....

The jury then convicted defendant of possession of

ketamine, and the court sentenced him to 48 months of

probation.

II. STANDARD OF REVIEW

At issue in this appeal is the interpretation and

coordination of various provisions of the CSA. We

review issues of statutory interpretation de novo. People

v Kowalski, 489 Mich 488, 497; 803 NW2d 200 (2011).

The primary goal in interpreting the meaning of a statute

is “to ascertain and give effect to the intent of the Legis-

lature....”Thefirst step in determining legislative intent

is consideration of the statutory language itself. Statutory

language must be read in the context of the act as a whole,

giving every word its plain and ordinary meaning. When

2011] P

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ARTUNIEWICZ

241

the language is clear and unambiguous, we enforce the

statute as written. [Id. at 497-498, quoting People v Lown,

488 Mich 242, 254; 794 NW2d 9 (2011).]

Once we discern the intent of the Legislature regard-

ing the elements of the underlying criminal offense, we

can analyze the trial court’s denial of defendant’s

motion for directed verdict and rejection of defendant’s

proposed special jury instruction.

In reviewing the denial of a motion for a directed verdict of

acquittal, this Court reviews the evidence in a light most

favorable to the prosecution in order to “determine

whether a rational trier of fact could have found that the

essential elements of the crime were proved beyond a

reasonable doubt.” [People v Gillis, 474 Mich 105, 113; 712

NW2d 419 (2006), quoting People v Riley (After Remand),

468 Mich 135, 139-140; 659 NW2d 611 (2003).]

We generally review claims of instructional error de

novo. Kowalski, 489 Mich at 501. However, we review

for an abuse of discretion a trial court’s determination

that a specific instruction is inapplicable given the facts

of the case. People v Dupree, 486 Mich 693, 702; 788

NW2d 399 (2010). We consider the jury instructions as

a whole to determine whether the court omitted an

element of the offense, misinformed the jury on the law,

or otherwise presented erroneous instructions. See

Kowalski, 489 Mich at 501.

III. DEFENDANT HAS THE BURDEN OF ESTABLISHING

AN EXCEPTION TO THE CSA AS AN AFFIRMATIVE DEFENSE

MCL 333.7403(1) proscribes the knowing or inten-

tional possession of a controlled substance unless ob-

tained directly through a valid prescription or valid

doctor’s order. A person illegally possessing a schedule 3

controlled substance is guilty of a two-year felony. MCL

242 294 M

ICH

237 [Sept

333.7403(2)(b)(ii). Defendant was convicted of posses-

sion of a schedule 3 controlled substance as defined in

MCL 333.7216(1)(h):

(1) The following controlled substances are included in

schedule 3:

***

(h) Any material, compound, mixture, or preparation

containing any quantity of ketamine, a salt of ketamine, an

isomer of ketamine, or a salt of an isomer of ketamine.

[

]

The CSA enumerates various exclusions, exceptions,

and exemptions from the schedules of controlled sub-

stances. MCL 333.7227(1) excludes “[a] nonnarcotic

substance that under the federal food, drug and cos-

metic act may be lawfully dispensed without a prescrip-

tion” and “[a] substance that contains 1 or more

controlled substances in a proportion or concentration

to vitiate the potential for abuse....”MCL333.7227(3)

provides: “An excluded substance is a deleterious drug

and may be manufactured, distributed, or dispensed

only by a person who is registered to manufacture,

distribute, or dispense a controlled substance under

[MCL 333.7208(2)].” MCL 333.7229 integrates various

exclusions, exceptions, and exemptions from federal

law:

MCL 333.7216(2) allows the Department of Community Health to

“promulgate rules to except” a substance from the CSA “if the com-

pound, mixture, or preparation contains 1 or more active medicinal

ingredients not having a stimulant or depressant effect on the central

nervous system” and are combined in a way to “vitiate the potential for

abuse....”There is no exception in this state’s administrative code for

any ketamine compound, mixture, or preparation. See Mich Admin Code,

R 338.3120 through 338.3122. There is also no exception for ketamine

compounds, mixtures, or preparations in the federal code. See 21 USC

801 et seq.

2011] P

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ARTUNIEWICZ

243

A compound, mixture, or preparation containing a de-

pressant or stimulant substance or of similar quantitative

composition shown in federal regulations as an excepted

compound or which is the same except that it contains a

lesser quantity of a controlled substance or other sub-

stances which do not have a stimulant, depressant, or

hallucinogenic effect, and which is restricted by law to

dispensing on prescription is excepted from [MCL

333.7212, 333.7214, 333.7216, 333.7218, and 333.7220].

Compliance with federal law respecting an excepted com-

pound is considered compliance with this section.

Defendant asserts that the MCL 333.7227(1) exclu-

sion of “[a] substance that contains 1 or more controlled

substances in a proportion or concentration to vitiate

the potential for abuse” from the CSA’s schedules

amounts to an element of a controlled substance of-

fense. Accordingly, defendant contends that the pros-

ecution has the burden of proving, in its case in chief,

that the subject substance does not fall within this

exclusion.

Contrary to defendant’s argument, the CSA ex-

pressly places the burden of proving “an exemption or

exception” on the defendant:

It is not necessary for this state to negate any exemption

or exception in this article in a complaint, information,

indictment, or other pleading or in a trial, hearing, or other

proceeding under this article. The burden of proof of an

exemption or exception is upon the person claiming it.

[MCL 333.7531(1).]

In People v Pegenau, 447 Mich 278, 292; 523 NW2d 325

(1994), our Supreme Court interpreted the burden

described in MCL 333.7531(2)

as an exemption to the

MCL 333.7531(2) provides:

In the absence of proof that a person is the authorized holder of

an appropriate license or order form issued under this article, the

244 294 M

ICH

237 [Sept

CSA “rather than an element of the crime.” The Pe-

genau Court analogized possession of a controlled sub-

stance proscribed under MCL 333.7403(1) to other

statutory offenses that can be disproved with evidence

of a valid license or authorization, such as carrying a

concealed weapon. Id. at 289-292. Consistently with

precedent interpreting those statutes, the Pegenau

Court held that the elements of possession under MCL

333.7403(1) are limited to knowing or intentional pos-

session of a controlled substance. Once the prosecution

presents a prima facie case of those elements, the

defendant bears the burden of affirmatively defending

the action with proof of a valid prescription. Id. at

292-293.

Before Pegenau, this Court repeatedly considered the

burden of proof in relation to exceptions to the CSA.

And, having done so, this Court consistently ruled that

these exceptions are affirmative defenses, not elements

of the underlying offense. See People v Bates, 91 Mich

App 506, 513-516; 283 NW2d 785 (1979) (the defendant

has the burden to prove the exemption now located in

MCL 333.7531[2] because the lack of authorization to

deliver a controlled substance is not an element of a

delivery charge); People v Bailey, 85 Mich App 594, 596;

272 NW2d 147 (1978) (same); People v Beatty, 78 Mich

App 510, 513-515; 259 NW2d 892 (1977) (the CSA

creates a general prohibition on the delivery of con-

trolled substances and the defendant has the burden to

establish a specific exception); People v Dean, 74 Mich

App 19, 21-28; 253 NW2d 344 (1977), mod in part on

other grounds 401 Mich 841 (1977) (the Legislature did

not unconstitutionally shift the burden of proof onto

defendants under the CSA; defendants merely have the

person is presumed not to be the holder of the license or order

form. The burden of proof is upon the person to rebut the

presumption.

2011] P

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ARTUNIEWICZ

245

burden of establishing statutory exceptions as an affir-

mative defense). The common theme of these opinions

is that exceptions, exemptions, and exclusions from the

legal definition of “controlled substance” are not ele-

ments of a controlled substance offense. Rather, they

are affirmative defenses that a defendant may present

to rebut the state’s evidence. Just as our Supreme

Court held in Pegenau and this Court stated in Dean,

“once the people show a prima facie violation” of the

CSA, the defendant then has “the burden of going

forward, i.e., of injecting some competent evidence of

the exempt status, of the drug.” Dean, 74 Mich App at

27 (citation and quotation marks omitted); see also

Pegenau, 447 Mich at 292-293.

Relevant to this appeal, MCL 333.7403(1) proscribes

the knowing or intentional possession of a controlled

substance without authorization. MCL 333.7216(1)(h),

in turn, includes within the definition of “controlled

substance” “[a]ny material, compound, mixture, or

preparation containing any quantity of ketamine....”

These are the elements of the charged offense. The

prosecution was therefore required to prove only that

defendant knowingly or intentionally possessed ket-

amine without authorization.

MCL 333.7227(1), on the other hand, is an exception

or exemption. Once the prosecution presented a prima

facie case that defendant knowingly or intentionally

possessed ketamine, defendant had the burden to affir-

matively defend his innocence by presenting competent

evidence that the ketamine discovered within the sub-

ject residue was “in a proportion or concentration to

vitiate the potential for abuse....”

Yet defendant presented no evidence that the ket-

amine within the powder residue was part of a com-

pound or mixture including other ingredients that

246 294 M

ICH

237 [Sept

could have vitiated the ketamine’s potential for abuse.

In this regard, defendant merely asked the forensic

analyst whether he had measured the proportion of

ketamine to any other substances that might have been

mixed with the ketamine. Defendant never sought to

perform an independent analysis of the sample or

requested the prosecution to submit the sample for

quantitative testing. In short, no evidence indicated

that the white powder that tested as ketamine fell

outside the definition of a controlled substance.

We further note that defendant is apparently at-

tempting to employ the exclusion of MCL 333.7227(1)

to eliminate from the definition of “controlled sub-

stance” any drug with the potential for abuse if it is

sufficiently diluted with a cutting agent. Under defen-

dant’s suggested interpretation of this exclusion, the

prosecution would be required to analyze every sub-

stance seized in a criminal investigation to determine

the concentration of controlled substances and the

effect of the particular level of a controlled substance.

For example, when officers seize a quantity of crack

cocaine, the officers would be required to analyze the

sample to determine the concentration of cocaine in

relation to other substances, regardless of the undeni-

able fact that cocaine processed into crack cocaine has

no legitimate use. This clearly was not the intention of

our Legislature.

Rather, we believe that Barnett v Indiana, 579 NE2d

84, 87 (Ind App, 1991), provides a helpful example of

how MCL 333.7227(1) is intended to function. Analyz-

ing nearly identical statutory language, the Indiana

Court of Appeals held that any particular sample of

“acetaminophen with codeine,” a combination of a

controlled substance with a noncontrolled substance

into a legitimate prescription pain reliever, could be

2011] P

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ARTUNIEWICZ

247

classified as a schedule 3 controlled substance if the

proportion of codeine were significant enough to cause

the potential for abuse. MCL 333.7227(1) functions in

the same manner: to decriminalize legitimate, medi-

cally sanctioned heterogeneous substances that contain

some level of a controlled substance. Defendant has

never attempted to establish that ketamine can be or

ever is combined with other “ingredients” into a legiti-

mate, medically sanctioned substance in which the

ketamine is “in a proportion or concentration to vitiate

the potential for abuse.” Because defendant completely

misunderstood the meaning and application of the

statutes, he failed to present any evidence tending to

support this affirmative defense.

IV. THE TRIAL COURT PROPERLY DENIED A DIRECTED VERDICT

Given our conclusion that the MCL 333.7227(1)

exclusion from the definition of a “controlled sub-

stance” is not an element of a controlled substance

offense, we affirm the trial court’s denial of defendant’s

motion for a directed verdict. To prove possession of

ketamine, the prosecution must establish (1) that the

substance in question was ketamine, (2) that defendant

possessed some amount of ketamine, (3) that defendant

was not authorized to possess ketamine, and (4) that

defendant knowingly possessed the ketamine. See

People v Wolfe, 440 Mich 508, 516-517; 489 NW2d 748

(1992), mod 441 Mich 1201 (1992). The prosecution

presented evidence that the substance was, in fact,

ketamine. There was no evidence to indicate that de-

fendant was authorized to possess ketamine. And the

prosecution presented sufficient evidence from which

the jury could determine that defendant knowingly

possessed ketamine. The residue was found on a small

plastic bag in defendant’s residence. Defendant admit-

248 294 M

ICH

237 [Sept

ted that the bag belonged to him. Defendant indicated

that he used the substances found along with the bag

“to get high” and that he had illegally secured the

substances from friends and over the Internet. This

evidence, when viewed in the light most favorable to the

prosecution, was sufficient to support a finding of guilt

with respect to each element of the charged offense. See

Gillis, 474 Mich at 113.

V. THE TRIAL COURT PROPERLY REJECTED DEFENDANT’S

PROPOSED SPECIAL JURY INSTRUCTION

Defendant was not entitled to a special jury instruc-

tion regarding the MCL 333.7227(1) exclusion from the

definition of a “controlled substance.” As this exception

is not an element of the charged possession offense,

defendant was not constitutionally entitled to have the

instruction presented to the jury. Kowalski, 489 Mich at

501 (holding that protection of a defendant’s constitu-

tional right to be convicted only after a jury’s “consid-

eration of every essential element of the charged of-

fense” demands that the jury be given proper

instructions regarding all elements of the crime). Al-

though not a constitutional mandate, our Supreme

Court has held that a trial court must also “instruct the

jury..., upon request, on material issues, defenses,

and theories that are supported by the evidence.” People

v Anstey, 476 Mich 436, 453; 719 NW2d 579 (2006)

(emphasis added), citing People v Rodriguez, 463 Mich

466, 472-473; 620 NW2d 13 (2000), and People v Reed,

393 Mich 342, 349-350; 224 NW2d 867 (1975). Defen-

dant presented no evidence that the ketamine found

inside his residence was mixed with any other sub-

stance, let alone any evidence that the ketamine was “in

a proportion or concentration to vitiate the potential for

abuse[.]” Accordingly, defendant’s proffered instruction

2011] P

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ARTUNIEWICZ

249

based on MCL 333.7227(1) was not supported by the

evidence, and the trial court properly denied defen-

dant’s request.

Affirmed.

OEKSTRA

and S

TEPHENS

, JJ., concurred with G

LEICHER

P.J.

250 294 M

ICH

237

ELDENBRADY v CITY OF ALBION

Docket No. 297735. Submitted July 6, 2011, at Lansing. Decided October

4, 2011, at 9:00 a.m.

Joshua and Anna EldenBrady filed a petition in the Michigan Tax

Tribunal (MTT), challenging the denial of their request for a

principal residence exemption on a 10-acre parcel of land that was

contiguous to the property on which their residence was located.

The parcel contained an abandoned school building that petition-

ers did not use. A hearing referee had issued a proposed opinion

recommending that petitioners be granted the expanded principal

residence exemption, but the MTT disagreed and denied petition-

ers’ request, concluding that petitioners had failed to establish by

a preponderance of the evidence that the property was unoccupied

or being used in conjunction with their principal residence. Peti-

tioners appealed.

The Court of Appeals held:

An exemption from the taxing power of the state must be clear

and unambiguous and is strictly construed against the property

owner and in favor of the public. Under MCL 211.7cc(1), a principal

residence is exempt from the tax levied by a local school district for

school operating purposes. MCL 211.7dd(c) provides that the term

“principal residence” includes all of an owner’s property that is

classified as residential, is adjoining or contiguous to his or her

dwelling, and is unoccupied. It was undisputed that petitioners’

10-acre parcel was zoned residential and that the parcel was adjoin-

ing or contiguous to petitioners’ dwelling. The MTT erred by con-

cluding that the parcel did not qualify for the principal residence

exemption because it was not “vacant.” The statute mandated that

the property need only be “unoccupied,” not vacant. While these

words are frequently used interchangeably and sometimes consid-

ered synonyms, for purposes of MCL 211.7dd(c) the term “unoccu-

pied” has a meaning separate and distinct from that of the word

“vacant.” The statute merely requires that the contiguous property

be without human occupants. The abandoned school building on the

petitioners’ 10-acre parcel was not used as a residence or dwelling,

LDEN

RADY V

ITY OF

LBION

251

had no tenants or residents, and was unoccupied within the meaning

of MCL 211.7dd(c). Petitioners were entitled to the principal resi-

dence exemption.

Reversed and remanded for further proceedings.

AXATION —

ENERAL

ROPERTY

CT —

RINCIPAL

ESIDENCE

XEMPTION —

EFINITION OF

RINCIPAL

ESIDENCE

A principal residence is exempt from the tax levied by a local school

district for school operating purposes; the term “principal resi-

dence” includes all of an owner’s property that is classified as

residential, is adjoining or contiguous to his or her dwelling, and is

unoccupied; as used in the statute, “unoccupied” means without

human occupants (MCL 211.7cc[1], 211.7dd[c]).

Joshua S. EldenBrady for petitioners.

Robison Law Office (by Mark J. Robison) for respon-

dent.

Before: S

AAD

,P.J., and J

ANSEN

and D

ONOFRIO

,JJ.

URIAM

. Petitioners appeal by right the final

opinion and judgment of the Michigan Tax Tribunal

(MTT) denying their request for a principal residence

exemption. We reverse and remand to the MTT with

instructions to grant petitioners’ request for a principal

residence exemption on their 10-acre parcel for tax

years 2008 and 2009.

Petitioners purchased a 10-acre parcel that is contigu-

ous to the property on which their home is located. There

is an abandoned school building on the 10-acre parcel. It is

undisputed that the 10-acre parcel is zoned residential.

Petitioners sought and obtained permission from the local

zoning authority to plant a garden on the parcel and

construct a fence around it. Petitioners plan to convert the

252 294 M

ICH

251 [Oct

abandoned school building into an art center in the future,

but do not currently use the building.

Petitioners filed an affidavit with respondent, the

city of Albion, seeking to extend the scope of their

principal residence exemption to include the 10-acre

parcel for tax years 2008 and 2009. Respondent denied

petitioners’ request, finding that the 10-acre parcel did

not qualify for the principal residence exemption be-

cause there was a building on it and it was therefore not

vacant. Petitioners appealed to the Small Claims Divi-

sion of the MTT. An MTT hearing referee issued a

proposed opinion recommending that petitioners be

granted the expanded principal residence exemption

they were seeking. The referee determined that the

10-acre parcel was being “used as an extension of the

petitioners’ home” and that the parcel was qualified to

receive the exemption under MCL 211.7cc because it

was unoccupied, zoned residential, and contiguous to

petitioners’ dwelling.

The MTT disagreed with the hearing referee’s re-

commendation and issued a final opinion and judgment

denying petitioners’ request for a principal residence

exemption on the 10-acre parcel. The MTT determined

that the hearing referee’s recommendation was “not

supported by the record” and that petitioners had

“failed to establish by a preponderance of the evidence

that the subject property is unoccupied or being used in

conjunction with their principal residence.” Citing cer-

tain guidelines prepared by the Department of Trea-

sury,

the MTT observed that “an adjacent parcel is

eligible for a principal residence exemption only if [it] is

vacant (unoccupied land) or has a garage or other

Michigan Department of Treasury, Guidelines for the Michigan Princi-

pal Residence Exemption Program (2010) <http://www.michigan.gov/

documents/2856_11014_7.pdf>.

2011] E

LDEN

RADY V

ITY OF

LBION

253

structures that are part of [p]etitioners’ home.” The

MTT ruled that petitioners’ 10-acre parcel was not

vacant because it “contain[ed] an abandoned, unim-

proved, and unused school building,” and further noted

that petitioners were not using the school building “in

conjunction with their principal residence, such as for

storage.” Accordingly, the MTT denied petitioners’ re-

quest for a principal residence exemption on the parcel

for tax years 2008 and 2009.

“In the absence of fraud, we review the Tax Tribu-

nal’s decision ‘for misapplication of the law or adoption

of a wrong principle.’ ” Kinder Morgan Mich, LLC v

City of Jackson, 277 Mich App 159, 163; 744 NW2d 184

(2007), quoting Wexford Med Group v Cadillac, 474

Mich 192, 201; 713 NW2d 734 (2006). The MTT’s

factual findings are conclusive “if they are supported by

‘competent, material, and substantial evidence on the

whole record.’ ” Id., quoting Mich Bell Tel Co v Dep’t of

Treasury, 445 Mich 470, 476; 518 NW2d 808 (1994).

“However, because statutory interpretation is involved

in this matter, we review the tribunal’s decision de

novo.” Kinder Morgan, 277 Mich App at 163; see also

Wexford Med Group, 474 Mich at 202.

“This Court’s primary task in construing a statute is

to discern and give effect to the intent of the Legisla-

ture.” Shinholster v Annapolis Hosp, 471 Mich 540,

548-549; 685 NW2d 275 (2004). “To do so, we begin

with the language of the statute, ascertaining the intent

that may reasonably be inferred from its language.”

Lash v Traverse City, 479 Mich 180, 187; 735 NW2d 628

(2007). “The words contained in the statute provide us

with the most reliable evidence of the Legislature’s

intent.” Kinder Morgan, 277 Mich App at 163. “Terms

254 294 M

ICH

251 [Oct

used in a statute must be given their plain and ordinary

meaning, and it is appropriate to consult a dictionary

for definitions.” Id.; see also MCL 8.3a; Halloran v

Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004).

There are certain special rules of construction that

apply to the interpretation of statutory tax exemptions:

“ ‘An intention on the part of the legislature to grant an

exemption from the taxing power of the State will never be

implied from language which will admit of any other

reasonable construction. Such an intention must be ex-

pressed in clear and unmistakable terms, or must appear

by necessary implication from the language used, for it is a

well-settled principle that, when a specific privilege or

exemption is claimed under a statute, charter or act of

incorporation, it is to be construed strictly against the

property owner and in favor of the public. This principle

applies with peculiar force to a claim of exemption from

taxation. Exemptions are never presumed, the burden is on

a claimant to establish clearly his right to exemption, and

an alleged grant of exemption will be strictly construed and

cannot be made out by inference or implication but must be

beyond reasonable doubt. In other words, since taxation is

the rule, and exemption the exception, the intention to

make an exemption ought to be expressed in clear and

unambiguous terms; it cannot be taken to have been

intended when the language of the statute on which it

depends is doubtful or uncertain; and the burden of estab-

lishing it is upon him who claims it. Moreover, if an

exemption is found to exist, it must not be enlarged by

construction, since the reasonable presumption is that the

State has granted in express terms all it intended to grant

at all, and that unless the privilege is limited to the very

terms of the statute the favor would be extended beyond

what was meant.’ ” [Guardian Indus Corp v Dep’t of

Treasury, 243 Mich App 244, 249-250; 621 NW2d 450

(2000), quoting Detroit v Detroit Commercial College, 322

Mich 142, 148-149; 33 NW2d 737 (1948), in turn quoting 2

Cooley, Taxation (4th ed), § 672, p 1403.]

2011] E

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However, these special rules “do not permit a strained

construction that is adverse to the intent of the Legis-

lature.” VanderWerp v Plainfield Charter Twp, 278

Mich App 624, 628; 752 NW2d 479 (2008).

III

We conclude that the MTT misinterpreted MCL

211.7dd(c) and committed an error of law when it

determined that petitioners were not entitled to a

principal residence exemption on their 10-acre parcel

for tax years 2008 and 2009.

Michigan’s principal residence exemption, also

known as the “homestead exemption,” is governed by

§§ 7cc and 7dd of the General Property Tax Act, MCL

211.7cc and MCL 211.7dd. See Inter Coop Council v

Dep’t of Treasury, 257 Mich App 219, 222; 668 NW2d

181 (2003). The Legislature has declared that “[a]

principal residence is exempt from the tax levied by a

local school district for school operating purposes to the

extent provided under...therevised school code...if

an owner of that principal residence claims an exemp-

tion as provided in this section.” MCL 211.7cc(1) (em-

phasis added); see also Inter Coop Council, 257 Mich

App at 223. MCL 211.7dd(c) provides in relevant part:

“Principal residence” means the 1 place where an owner

of the property has his or her true, fixed, and permanent

home to which, whenever absent, he or she intends to

return and that shall continue as a principal residence

until another principal residence is established. Except as

otherwise provided in this subdivision, principal residence

includes only that portion of a dwelling or unit in a

multiple-unit dwelling that is subject to ad valorem taxes

and that is owned and occupied by an owner of the dwelling

or unit. Principal residence also includes all of an owner’s

unoccupied property classified as residential that is adjoin-

ing or contiguous to the dwelling subject to ad valorem taxes

256 294 M

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251 [Oct

and that is owned and occupied by the owner.... Contigu-

ity is not broken by a road, a right-of-way, or property

purchased or taken under condemnation proceedings by a

public utility for power transmission lines if the 2 parcels

separated by the purchased or condemned property were a

single parcel prior to the sale or condemnation. [Emphasis

added.]

In other words, to receive the exemption that they were

seeking, petitioners were required to prove by a prepon-

derance of the evidence that their 10-acre parcel (1) was

classified as residential, (2) was adjoining or contiguous

to their dwelling, and (3) was “unoccupied.” MCL

211.7dd(c).

As noted previously, it is undisputed that petitioners’

10-acre parcel was zoned residential at the time. It is

also undisputed that the parcel is adjoining or contigu-

ous to petitioners’ dwelling. Thus, the sole issue for

respondent and the MTT was whether petitioners’

parcel was “unoccupied” within the meaning of the

third sentence of MCL 211.7dd(c).

Respondent argued, and the MTT concluded, that

the 10-acre parcel did not qualify for the principal

residence exemption under MCL 211.7dd(c) because it

was not vacant. The MTT’s final opinion and judgment,

and the Department of Treasury’s guidelines concern-

ing the principal residence exemption program, both

make clear that the MTT considers the terms vacant

and unoccupied to be synonymous. However, we con-

clude that these two terms are not synonymous for

purposes of the present case.

In order to qualify for a principal residence exemp-

tion under the third sentence of MCL 211.7dd(c), prop-

erty need only be “unoccupied”—not “vacant.” Indeed,

the word vacant does not appear in the text of MCL

211.7dd(c). We acknowledge that the terms vacant and

2011] E

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unoccupied are frequently used interchangeably and are

considered synonyms in many instances. Hill v Warrell,

87 Mich 135, 138; 49 NW 479 (1891); Stupetski v Trans-

atlantic Fire Ins Co, 43 Mich 373, 374; 5 NW 401 (1880);

Random House Webster’s College Dictionary (1997). But

these words are not always synonymous; in some contexts

each term has a meaning independent of the other. See

McNeel v Farm Bureau Gen Ins Co, 289 Mich App 76, 92;

795 NW2d 205 (2010); see also Mich Twp Participating

Plan v Federal Ins Co, 233 Mich App 422, 435; 592 NW2d

760 (1999). The principal definition of the word “vacant”

is “having no contents; empty; void.” Random House

Webster’s College Dictionary (1997). While it is true that

the dictionary goes on to define “vacant” as “having no

occupant; unoccupied,” id., we are convinced that the

term unoccupied has a meaning separate and distinct

from that of the word vacant for purposes of MCL

211.7dd(c).

“ ‘[C]ourts have sometimes distinguished vacant

from unoccupied, holding that vacant means completely

empty while unoccupied means not routinely character-

ized by the presence of human beings.’ ” Vushaj v Farm

Bureau Gen Ins Co, 284 Mich App 513, 515-516; 773

NW2d 758 (2009), quoting Black’s Law Dictionary (8th

ed). Similarly, one dictionary “defines ‘unoccupied’ as

‘without occupants’ and ‘occupant’ as ‘a tenant of a

house, estate, office, etc.; resident.’ ” Vushaj, 284 Mich

App at 516, quoting Random House Webster’s College

Dictionary (1995). Another dictionary observes that

“‘vacant means without inanimate objects, while unoc-

cupied means without human occupants.’ ” McNeel,

289 Mich App at 92, quoting Garner, A Dictionary of

Modern Legal Usage (2d ed). When read in context, it is

clear that the Legislature intended the term “unoccu-

pied” in the third sentence of MCL 211.7dd(c) to mean

“without human occupants” rather than “completely

258 294 M

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251 [Oct

empty,” “without inanimate objects,” or “having no

contents; empty; void.” Indeed, if the word “unoccu-

pied” in MCL 211.7dd(c) were to be interpreted as

meaning “vacant” (and by extension “completely

empty,” “without inanimate objects,” or “having no

contents; empty; void”), then any property with a

garage or shed would be ineligible for the principal

residence exemption under the third sentence of MCL

211.7dd(c). Even the MTT implicitly admits that this

cannot be what the Legislature intended.

In sum, the third sentence of MCL 211.7dd(c) does

not require that contiguous property be vacant or

completely devoid of any inanimate objects, contents, or

structures to qualify for the principal residence exemp-

tion. Instead, the statutory language merely requires

that the contiguous property be unoccupied, i.e., with-

out human occupants. See McNeel, 289 Mich App at 92.

As explained earlier, an occupant is a tenant or a

resident. See Vushaj, 284 Mich App at 516.

No part of petitioners’ 10-acre parcel or abandoned

school building was used as a residence or dwelling, and

no part of the parcel or school building had tenants or

residents. Accordingly, we conclude that the 10-acre

parcel was “unoccupied” within the meaning of MCL

211.7dd(c). Because the parcel was zoned residential,

was adjoining or contiguous to petitioners’ dwelling,

and was “unoccupied” within the meaning of MCL

211.7dd(c), petitioners were entitled to a principal resi-

dence exemption on the property. For these reasons, we

reverse the final opinion and judgment of the MTT and

The Department of Treasury’s guidelines, on which the MTT relied,

provide that contiguous property containing a garage qualifies for the

principal residence exemption under the third sentence of MCL

211.7dd(c) as long as the property is zoned residential and the garage is

not inhabited or used as a dwelling.

2011] E

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remand this case to the tribunal with instructions to

grant petitioners’ request for a principal residence

exemption on their 10-acre parcel for tax years 2008

and 2009.

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

No taxable costs pursuant to MCR 7.219, a public

question having been involved.

AAD

,P.J., and J

ANSEN

and D

ONOFRIO

, JJ., concurred.

Nor does MCL 211.7dd(c) contain any requirement that the owner

use the contiguous, unoccupied property in conjunction with, or as an

extension of, his or her dwelling. Accordingly, the MTT erred to the

extent that it ruled that petitioners’ 10-acre parcel was ineligible for the

principal residence exemption because it was not being used “in conjunc-

tion with [petitioners’] principal residence, such as for storage.”

260 294 M

ICH

251 [Oct

In re HUDSON

Docket No. 302214. Submitted September 16, 2011, at Detroit. Decided

October 11, 2011, at 9:00 a.m. Leave to appeal denied, 490 Mich

918.

The Department of Human Services (DHS) filed a petition in the

Family Division of the Oakland Circuit Court to terminate the

parental rights of A. Sword-Pope to her minor children. DHS

became involved because of deplorable housing conditions and

alleged sexual abuse by respondent against her 14-year-old biologi-

cal son, A., with whom she had recently reconnected after giving

him up for adoption at birth. A. had revealed that he had sexual

intercourse with respondent on numerous occasions after she

located him. Respondent pleaded no contest to an amended

termination petition, which included the sexual abuse allegations.

In a separate criminal proceeding, respondent pleaded guilty of

first-degree criminal sexual conduct (CSC-I), MCL 750.520b, aris-

ing out of her sexual activity with A. and was sentenced to a term

of nine to 30 years in prison. The court, Lisa Ortlieb Gorcyca, J.,

terminated respondent’s parental rights after finding that

grounds for termination under MCL 712A.19b(3)(b)(i), (h), (j), and

(k)(ii) existed. Respondent appealed.

The Court of Appeals held:

1. Under MCL 712A.19b(3)(k)(ii), termination is appropriate if

the parent abused the child or a sibling of the child and the abuse

included criminal sexual conduct involving penetration, attempted

penetration, or assault with intent to penetrate. Because respon-

dent pleaded guilty of CSC-I in relation to her sexual abuse of A.,

there was clear and convincing evidence to support termination of

her parental rights. “Sibling” is defined as one or more individuals

having one or both parents in common or a brother or sister.

Respondent was the biological mother of A. and all the minor

children, who shared some genetic makeup and thus were siblings.

There was no rational basis for a distinction between a legal

sibling and a biological sibling in this case.

2. The same holds true under MCL 712A.19b(3)(b)(i), which

provides that termination is appropriate if the child or a sibling of

the child suffered sexual abuse, a parent’s act caused the physical

2011] In re H

UDSON

261

injury or physical or sexual abuse, and the court finds that there is

a reasonable likelihood that the child will suffer injury or abuse in

the forseeable future if placed in the parent’s home. Evidence of

how a parent treats one child is evidence of how he or she may

treat her other children. Even though no legal relationship existed

between respondent and A., her behavior was so egregious as to

defy comprehension.

3. There was clear and convincing evidence to support termi-

nation of respondent’s parental rights under MCL 712A.19b(3)(h),

which provides for termination if the parent is imprisoned for

more than two years and there is no reasonable expectation that

the parent will be able to provide proper care and custody within

a reasonable time. A present inability to care for one’s minor

children due to incarceration is not, by itself, grounds for termi-

nation. Respondent, however, had failed to provide proper care and

custody for the minor children and there was no reasonable

expectation that she would be able to do so within a reasonable

time. Only the youngest child would still be a minor if respondent

were to be released from prison at her earliest release date, and she

subjected the children to emotional damage by breaching their

trust and confidence in her, placing them in a situation where they

no longer resided together as a family unit, and depriving them of

her daily presence.

4. There was clear and convincing evidence to support termi-

nation of respondent’s parental rights under MCL 712A.19b(3)(j),

which provides for termination if there is a reasonable likelihood,

based on the parent’s conduct or capacity, that the child will be

harmed if he or she is returned to the home of the parent. Harm to

the child under this basis may be emotional, not just physical.

Respondent’s sexual abuse of A. deprived the minor children of a

normal home with her, her denial turned the minor children

against A., and she violated their trust when they discovered she

was guilty of CSC-I.

4. The trial court did not clearly err by determining that

termination of respondent’s parental rights was in the best

interests of the minor children.

Affirmed.

ARENT AND

HILD —

ERMINATION OF

ARENTAL

IGHTS —

BUSE OF

IBLINGS —

EFINITION OF

IBLING

A petitioner must establish at least one statutory ground for

termination of parental rights by clear and convincing evidence; a

biological child who is put up for adoption by a parent is a sibling

of that parent’s other biological children when determining

262 294 M

ICH

261 [Oct

whether statutory grounds for termination of parental rights have

been established under MCL 712A.19b(3)(b)(i) and (k)(ii); there is

no distinction between a legal sibling and a biological sibling under

those subsections.

Jessica R. Cooper, Prosecuting Attorney, and Thomas

R. Grden and Tanya L. Nava, Assistant Prosecuting

Attorneys, for the Department of Human Services.

William Lansat for A. Sword-Pope.

Before: S

ERVITTO

,P.J., and M

ARKEY

and K. F. K

ELLY

JJ.

URIAM

. Respondent appeals as of right the order

terminating her parental rights to her minor children

pursuant to MCL 712A.19b(3)(b)(i), (h), (j), and (k)(ii).

Because the trial court did not clearly err by finding

that a statutory ground for termination was established

by clear and convincing evidence or that termination

was in the minor children’s best interests, we affirm.

The minor children came to the attention of the

Department of Human Services (DHS) because of de-

plorable housing conditions and allegations of sexual

abuse by respondent against her 14-year-old biological

son, whom she had given up for adoption at birth but

with whom she had recently reconnected. The child, A.,

revealed that he and respondent had engaged in sexual

intercourse on numerous occasions after she located

him through MySpace. The trial court asserted jurisdic-

tion over the minor children, and the matter proceeded

to hearing. Respondent ultimately pleaded guilty to one

count of first-degree criminal sexual conduct, MCL

750.520b, relating to her sexual activity with A. and was

sentenced to a term of nine years to 30 years in prison.

The trial court thereafter terminated respondent’s pa-

rental rights to her minor children.

2011] In re H

UDSON

263

A petitioner must establish by clear and convincing

evidence at least one statutory ground for termination

of parental rights. In re JK, 468 Mich 202, 210; 661

NW2d 216 (2003). This Court reviews for clear error the

trial court’s ruling that a statutory ground for termina-

tion has been established and its ruling that termina-

tion is in the children’s best interests. MCR 3.977(K); In

re Archer, 277 Mich App 71, 73; 744 NW2d 1 (2007). A

finding is clearly erroneous if, although there is evi-

dence to support it, this Court is left with a definite and

firm conviction that a mistake has been made. In re BZ,

264 Mich App 286, 296-297; 690 NW2d 505 (2004).

On appeal, respondent contends that the trial court

erred by finding that any of the four cited statutory

bases for termination were established by clear and

convincing evidence. We disagree.

First and foremost, respondent pleaded no contest to

an amended petition, which included allegations that

she had sexually abused A. Though the trial court

declined to terminate respondent’s parental rights fol-

lowing the first best-interest hearing, child protective

proceedings are viewed as one continuous proceeding.

In re LaFlure, 48 Mich App 377, 391; 210 NW2d 482

(1973). Respondent’s plea, therefore, became evidence

in the case, and she claims no irregularity pertaining to

her 2009 plea. She now argues that the evidence to

support termination was not clear and convincing,

which is directly contrary to her plea of no contest.

Respondent may not assign as error on appeal some-

thing that she deemed proper in the lower court be-

cause allowing her to do so would permit respondent to

harbor error as an appellate parachute. People v Green,

228 Mich App 684, 691; 580 NW2d 444 (1998). In any

event, we find that clear and convincing evidence sup-

ported the trial court’s termination decision. Archer,

277 Mich App at 73.

264 294 M

ICH

261 [Oct

Termination is appropriate pursuant to MCL

712A.19b(3)(b)(i) if the child or a sibling of the child has

suffered sexual abuse and “[t]he parent’s act caused the

physical injury or physical or sexual abuse and the court

finds that there is a reasonable likelihood that the child

will suffer from injury or abuse in the foreseeable future

if placed in the parent’s home.” MCL 712A.19b(3)(k)(ii)

allows for termination of parental rights if “the parent

abused the child or a sibling of the child and the abuse

included...[c]riminal sexual conduct involving pen-

etration, attempted penetration, or assault with intent

to penetrate.”

Respondent admits that she pleaded guilty to a

charge of first-degree criminal sexual conduct involving

her biological son, but avers that because she gave the

child up for adoption at birth, he was not her legal child.

Respondent argues that it legally follows that as A. was

not the sibling of her other children, termination on the

basis of her sexually assaulting him was not appropriate

under MCL 712A.19b(3)(b)(i) or (k)(ii). Aside from the

fact that respondent has provided no authority for such

position and we may thus deem this issue abandoned,

see, e.g., Prince v MacDonald, 237 Mich App 186, 197;

602 NW2d 834 (1999), we disagree with respondent’s

position.

“Sibling” is not specifically defined in the Juvenile

Code. Nor is there any caselaw in Michigan on this

particular issue. That being the case, we may consult a

dictionary for the proper definition of “sibling.” See, e.g.,

Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129

(2004) (stating that when terms are not defined in a

statute, those terms are to be “given their plain and

ordinary meanings, and it is proper to consult a dictionary

for definitions”). The American Heritage Dictionary of

the English Language (3d ed), p 1675, defines “sibling”

2011] In re H

UDSON

265

as “[o]ne of two or more individuals having one or both

parents in common; a brother or sister.” Respondent is the

biological mother of A. and all the minor children at issue;

the children share the same mother and thus some of the

same genetic makeup. A. and the minor children are thus

siblings and there is no rational basis for forging a

distinction between a legal sibling and biological sibling

under the present factual situation. Clear and convincing

evidence thus supported termination pursuant to MCL

712A.19b(3)(k)(ii).

The same holds true for termination under MCL

712A.19b(3)(b)(i). Respondent contends that no evidence

was presented that any of the children would suffer from

injury or abuse if placed with her, considering that she will

be incarcerated until at least 2019. However, the reason

for respondent’s incarceration was her sexual abuse of her

14-year-old biological son. Evidence of how a parent treats

one child is evidence of how he or she may treat the other

children. In re AH, 245 Mich App 77, 84; 627 NW2d 33

(2001). It is thus appropriate for a trial court to evaluate a

respondent’s potential risk to the other siblings by ana-

lyzing how the respondent treated another one of his or

her children, albeit a child the respondent gave up for

adoption. Though no legal relationship exists in such a

situation, the reality is that respondent is still the biologi-

cal mother of the child who was given up for adoption and

that child is the biological half-sibling of the respondent’s

other children. Were respondent’s other children at less

risk because A. was merely their biological and not their

legal sibling? Respondent’s behavior with A. was so egre-

gious as to defy comprehension. It demonstrated more

than a mere lack of insight and poor judgment.

Respondent can argue that she perceived A. in a

different way than she perceived the rest of her children

because she did not raise him. If that is the case, then

266 294 M

ICH

261 [Oct

her now toddler son would be at the same risk of harm.

Assuming that respondent serves only the minimum

sentence, she will be released when the child is 15 years

old—nearly the same age that A. was when he was

reunited with respondent and she sexually abused him.

Clear and convincing evidence also supported termi-

nation under MCL 712A.19b(3)(h), which provides for

termination if

[t]he parent is imprisoned for such a period that the child

will be deprived of a normal home for a period exceeding 2

years, and the parent has not provided for the child’s

proper care and custody, and there is no reasonable expec-

tation that the parent will be able to provide proper care

and custody within a reasonable time considering the

child’s age.

Respondent does not dispute that she will be in

prison for a minimum of nine years. And as a result of

her imprisonment and the circumstances leading up to

it, the minor children have undoubtedly been emotion-

ally damaged. They have been split up and no longer

reside together in the same home. By the time of

respondent’s earliest release date, only the youngest

child will still be a minor. While one’s present inability

to care for one’s minor children due to incarceration is

not alone grounds for termination, In re Mason, 486

Mich 142, 160; 782 NW2d 747 (2010), incarceration was

not the sole reason for termination in this case. By

subjecting the children to emotional damage, breaching

their trust and confidence in her, placing them in a

situation where they no longer reside together as a

family unit, and depriving them of her daily presence,

respondent has not provided proper care and custody of

the children. She will be imprisoned for a sufficient

period that they will be deprived of a normal home for

more than two years, and there is no reasonable expec-

2011] In re H

UDSON

267

tation that respondent will be able to provide the

children with proper care and custody within a reason-

able time.

Finally, termination was proper pursuant to MCL

712A.19b(3)(j) because “[t]here is a reasonable likeli-

hood, based on the conduct or capacity of the child’s

parent, that the child will be harmed if he or she is

returned to the home of the parent.” Respondent fo-

cuses only on the potential of physical harm or abuse

and ignores the fact that the children had been, and

continued to be, at risk of emotional harm. Respon-

dent’s behavior had already deprived the children of

several years of a normal home with her. Her ongoing

denial not only turned the children against A. because

they believed he was a liar, but also violated the

children’s trust in respondent when they came to learn

more of the allegations against her. Respondent’s be-

havior will have lifelong and profound effects on her

children as they come to grips with the fact that she was

guilty of first-degree criminal sexual conduct with her

own 14-year-old biological child.

For the foregoing reasons, the trial court did not

clearly err by finding that the statutory grounds for

termination of respondent’s parental rights set forth in

MCL 712A.19b(3)(b)(i), (h), (j), and (k)(ii) were estab-

lished.

The trial court also did not clearly err by determining

that termination was in the children’s best interests. As

indicated by the trial court, all the children were

indirectly made victims of respondent’s sexual abuse of

A. Respondent’s criminal behavior and failure to fully

appreciate her conduct set a poor example for the

children, who looked to her for guidance. Respondent’s

teenage daughter had difficulty processing what re-

spondent had done and for a long time believed that

268 294 M

ICH

261 [Oct

respondent was innocent. Respondent played into her

daughter’s beliefs. At the first best-interest hearing,

respondent testified that “I have not, would not ever

abuse any of my children. I never did.” Later, however,

respondent admitted engaging in sexual intercourse

with her teenage biological son and pleaded guilty to

criminal charges concerning her actions. All the chil-

dren will have a lifelong struggle dealing with what

happened to their family as the result of respondent’s

reprehensible behavior. Termination of respondent’s

parental rights was in their best interest and was a

necessary step in allowing the children to have the

safety, permanence, and stability to which they are

entitled.

Affirmed.

ERVITTO

,P.J., and M

ARKEY

and K. F. K

ELLY

,JJ.,

concurred.

2011] In re H

UDSON

269

In re PLUMP

Docket No. 302995. Submitted October 5, 2011, at Grand Rapids.

Decided October 11, 2011, at 9:05 a.m.

The Department of Human Services petitioned in the Berrien Circuit

Court, Family Division, to terminate the parental rights of respon-

dent, the mother of SO and EW, on the basis that respondent had

provided marijuana to a teenage friend of one of her teenage

children and then smoked the marijuana in the presence of the

teenagers and SO and EW. Respondent had pleaded guilty to

criminal charges concerning the event. Respondent’s children had

previously been removed from her care because, in addition to her

substance abuse, she had failed to protect her two oldest children

from physical and sexual abuse by her violent partner. At that

time, she received numerous services from petitioner, and the

children were eventually returned to her care. After her children

were again removed because of the marijuana incident, respondent

was again provided with numerous services, including counseling

for victims of domestic violence. By the time of the termination

proceeding, respondent had stopped participating in that counsel-

ing, had repeatedly tested positive for marijuana use, and had been

arrested for violating the terms of her probation for the marijuana

conviction by associating with the person who had abused her two

oldest children. The court, Thomas E. Nelson, J., eventually

entered an order terminating respondent’s parental rights to the

two minors under MCL 712A.19b(3)(c)(ii) (failure to rectify con-

ditions), (g) (failure to provide proper care or custody), and (j)

(likelihood of harm if child returned to home), holding that

respondent’s own behaviors were directly harming the children or

exposing them to harm and that petitioner had expended reason-

able efforts toward reuniting respondent with the children. Re-

spondent appealed, alleging that petitioner failed to provide her

with adequate services regarding her being a victim of domestic

violence.

The Court of Appeals held:

1. When a child is removed from a parent’s custody, the agency

charged with the care of the child must report to the trial court the

efforts made to rectify the conditions that led to the removal of the

270 294 M

ICH

270 [Oct

child. The trial court, before entering an order of disposition, must

state whether reasonable efforts have been made to prevent the

child’s removal from the home or rectify the conditions that caused

the removal of the child. Services are not mandated in all situa-

tions, but the agency must justify any decision not to provide

services.

2. The termination in this case was properly based on the fact

that respondent’s own behaviors were directly harming the chil-

dren or exposing them to harm. The trial court did not err by

determining that reasonable efforts had been exerted by petitioner

toward reunifying respondent with the children.

Affirmed.

Gregory H. Feldman for C. Plump.

Before: M

ARKEY

,P.J., and S

ERVITTO

and R

ONAYNE

RAUSE

,JJ.

ONAYNE

RAUSE

, J. Respondent appeals as of right

the order terminating her parental rights to her two

minor children, SO and EW, pursuant to MCL

712A.19b(3)(c)(ii), (g), and (j). Respondent contends

that petitioner failed to recognize that domestic vio-

lence is an issue in this case and therefore failed to

provide her with adequate services regarding her

being the victim of domestic violence. We disagree

and affirm.

The children in this case were removed from respon-

dent’s care after respondent provided marijuana to a

teenage friend of one of her older children, MG. She

then smoked the marijuana in front of the teenagers

and SO and EW, who were then ages six and four,

respectively. Respondent later pleaded guilty to crimi-

nal charges in connection with that event.

Respondent’s children had previously been removed

from her care because, in addition to her substance

abuse, she had failed to protect her two oldest children

from physical and sexual abuse by her violent partner.

2011] In re P

LUMP

271

At the time of that earlier removal, respondent was

provided with numerous services and the children

thereafter were returned to her care.

After the children were again removed from her care,

this time as a result of the marijuana incident, respon-

dent was again provided with numerous services. Those

services included counseling for victims of domestic

violence. She participated in the services for several

months, but she did not, in the end, persist. She stopped

participating in the domestic-violence-victims’ counsel-

ing, repeatedly tested positive for marijuana use, quit

one of her jobs, had no heat at her residence and was

facing eviction, and was arrested for violating her

probation by associating with the person who had

physically and sexually abused the two oldest children.

At the termination hearing, a foster-care worker testi-

fied that domestic violence was one of the concerns both

times the children were removed and that both times

respondent received numerous services, including coun-

seling for victims of domestic violence, but she had

failed to benefit from those services.

When a child is removed from a parent’s custody, the

agency charged with the care of the child is required to

report to the trial court the efforts made to rectify the

conditions that led to the removal of the child. See In re

Fried, 266 Mich App 535, 542; 702 NW2d 192 (2005).

Before the trial court enters an order of disposition, it is

required to state whether reasonable efforts have been

made to prevent the child’s removal from the home or

to rectify the conditions that caused the child to be

removed from the home. MCL 712A.18f(4). Services are

not mandated in all situations, but the statute requires

the agency to justify the decision not to provide services.

In re Terry, 240 Mich App 14, 25 n 4; 610 NW2d 563

(2000).

272 294 M

ICH

270 [Oct

The evidence shows that petitioner and respondent

were both aware of the numerous barriers to reunifica-

tion in this case, among them respondent’s relationship

with an abusive partner. Petitioner provided respon-

dent numerous services each time the children were

removed from her care, including counseling for victims

of domestic violence, yet respondent failed to benefit

from the services and persisted in her relationship with

the abuser of her children. To be clear, it would be

impermissible for a parent’s parental rights to be ter-

minated solely because he or she was a victim of

domestic violence. However, this termination was prop-

erly based on the fact that respondent’s own behaviors

were directly harming the children or exposing them to

harm. We conclude that the trial court did not err by

determining that reasonable efforts had been exerted

by the agency toward reuniting respondent with the

children.

Affirmed.

ARKEY

,P.J., and S

ERVITTO

, J., concurred with

ONAYNE

RAUSE

,J.

2011] In re P

LUMP

273

PEOPLE v NUNLEY

Docket No. 302181. Submitted July 7, 2011, at Lansing. Decided October 13,

2011, at 9:00 a.m. Precedential effect stayed, 490 Mich 922. Reversed,

491 Mich 686. Certiorari denied, 568 US ___.

Terry Nunley was charged in the 15th District Court with driving

while his license was suspended (DWLS), second offense, MCL

257.904(1) and (3)(b). The prosecution filed a motion in limine,

seeking a ruling that the document certifying that the Secretary of

State had mailed defendant notice that his license was suspended,

which is an element of DWLS, would be admissible at trial. The

district court, Chris Easthope, J., denied the motion, and the

prosecution appealed. The Washtenaw Circuit Court, Melinda

Morris, J., reversed the district court’s ruling that the certificate of

mailing was inadmissible because it lacked a signature, but af-

firmed its ruling that admitting the document without the testi-

mony of its author would violate defendant’s constitutional right

to be confronted with the witnesses against him. The Court of

Appeals granted the prosecution’s application for interlocutory

appeal.

The Court of Appeals held:

The circuit court did not err by ruling that the certificate of

notice was testimonial in nature. Under the Confrontation Clause

of the Sixth Amendment of the United States Constitution, a

person facing criminal prosecution has the right to be confronted

with the witnesses against him or her, and § 20 of article 1 of the

Michigan Constitution provides the same right. These provisions

allow the admission of testimonial statements of witnesses absent

from trial only when the original declarant is unavailable and the

defendant has had a prior opportunity to cross-examine that

declarant. Statements are testimonial if their primary purpose is

to establish or prove past events potentially relevant to later

criminal prosecution. A document need not have been prepared

solely in anticipation of trial in order to be classified as testimo-

nial; rather, it is subject to Confrontation Clause requirements if it

was made under circumstances that would lead an objective

witness reasonably to believe that it would be available for use at

a later trial. In light of the fact that the prosecution was required

274 294 M

ICH

274 [Oct

to prove that defendant had received notice that his license was

suspended as an element of DWLS, the certificate of mailing

satisfies this condition.

Affirmed.

AAD

,P.J., dissenting, would have held that the certificate of

mailing was nontestimonial because it was created independently

of any investigatory or prosecutorial purpose given that no crime

had yet been committed and because cross-examination of its

author would elicit little or nothing to ensure its reliability.

1. C

ONSTITUTIONAL

AW —

VIDENCE —

IGHT OF

ONFRONTATION —

ESTIMONIAL

TATEMENTS

Testimonial statements of witnesses absent from trial are admissible

only when the original declarant is unavailable and the defendant

has had a prior opportunity to cross-examine that declarant; a

statement is considered testimonial if its primary purpose is to

establish or prove past events potentially relevant to later criminal

prosecution; a statement satisfies this condition if it was made

under circumstances that would lead an objective witness reason-

ably to believe that it would be available for use at a later trial (US

Const, Am VI; Const 1963, art 1, § 20).

2. C

ONSTITUTIONAL

AW —

VIDENCE —

IGHT OF

ONFRONTATION —

ESTIMONIAL

TATEMENTS —

OTICE OF

USPENSION OF

RIVER

’

ICENSES —

ERTIFI-

CATES OF

AILING

The document certifying that the Secretary of State mailed a person

notice that his or her driver’s license was suspended is testimonial

in nature; it may only be admitted to prove a charge of driving with

a suspended license without the testimony of its preparer if the

preparer is unavailable and the defendant had a prior opportunity

to cross-examine him or her (US Const, Am VI; Const 1963, art 1,

§ 20; MCL 257.212; MCL 257.904[1]).

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Brian L. Mackie, Prosecuting Attor-

ney, and David A. King, Assistant Prosecuting Attorney,

for the people.

James E. R. Fifelski for defendant.

Before: S

AAD

,P.J., and J

ANSEN

and D

ONOFRIO

,JJ.

2011] P

EOPLE V

UNLEY

275

ONOFRIO

, J. The prosecution appeals by leave

granted the circuit court’s order affirming in part the

district court’s order denying the prosecution’s mo-

tion in limine to admit certain documentary evidence

on the ground that it violated defendant’s right to

confront witnesses against him.

The prosecution

contends that the circuit court erred by affirming in

part the district court’s denial of its motion in limine

because the admission of the Secretary of State’s

certificate of mailing would not have violated the

Confrontation Clause. Because the circuit court did

not abuse its discretion when it affirmed the denial of

the prosecution’s motion in limine for the reason that

the certificate of mailing is testimonial in nature and

would violate the Confrontation Clause if admitted

without witness testimony, we affirm.

On September 9, 2009, a police officer pulled defen-

dant over for failing to properly secure the load in his

truck and for improper identification of a commercial

vehicle. The police officer cited defendant for driving

while license suspended (DWLS), and then released

defendant from the scene.

The prosecutor charged

defendant with DWLS-second offense, MCL 257.904(1)

US Const, Am VI; Const 1963, art 1, § 20. The prosecution applied in

this Court for leave to appeal pursuant to MCR 7.205(E)(1), and this

Court granted leave to appeal. People v Nunley, unpublished order of the

Court of Appeals, entered March 1, 2011 (Docket No. 302181).

The prosecutor, in his applications for leave to appeal in the circuit

court and in this Court, asserts that defendant admitted to the

charging officer that he did not have a valid license. There is no record

evidence or supporting documentation in the lower court record for

this assertion. Further, the record is silent regarding defendant’s

receipt of the notification that his driving privileges had been sus-

pended.

276 294 M

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274 [Oct

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and (3)(b).

The prosecutor obtained defendant’s certi-

fied driving record from the Secretary of State’s office.

Included as part of defendant’s driving record is a

“Certificate of Mailing of Orders and Rest Lics.” The

certificate provides in relevant part:

I CERTIFY THAT I AM EIGHTEEN YEARS OF AGE OR

OLDER AND THAT ON THIS DATE NOTICE OF THE

ORIGINAL ORDER OF SUSPENSION OR RESTRICTED

LICENSE WAS GIVEN TO EACH OF THE PERSONS

NAMED BELOW BY FIRST-CLASS UNITED STATES

MAIL AT LANSING, MICHIGAN AS PROVIDED IN SEC-

TION 212 OF MICHIGAN VEHICLE CODE (MCL 257.212).

DATE 6-22-09 OFFICER OR EMPLOYEE F. Bueter

[handwritten]

On the certificate of mailing, the date is handwritten,

and “F. Bueter” is typed on the “Officer or Employee”

signature line. Defendant’s name and driver’s license

number are listed below the above-quoted language.

On June 3, 2010, the prosecutor brought a motion in

limine before the district court, seeking a ruling that

the certificate of mailing was admissible without both

the signature of the person giving the notice and

without calling a representative of the Secretary of

State as a witness. Defendant objected to the motion in

The prosecutor enhanced defendant’s DWLS charge to DWLS-second

offense pursuant to MCL 257.904(3)(b) because of defendant’s prior

driving record. MCL 257.904(3)(b) provides that if a violation occurs after

a prior conviction, the sentence is enhanced to “imprisonment for not

more than 1 year or a fine of not more than $1,000, or both.” The fact

that defendant is facing a charge of DWLS-second offense rather than

DWLS is of no consequence to our analysis of the issues in this case.

Defendant’s certified driving record shows that defendant had ob-

tained a temporary license or permit pursuant to MCL 257.625g on

February 7, 2009, and was not made aware of its revocation through

means other than the notice sent on June 22, 2009. The record also

establishes an earlier DWLS conviction.

2011] P

EOPLE V

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277

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limine and asserted his right to cross-examine the

issuer of the certificate of mailing.

On July 27, 2010,

the district court held a hearing on the prosecutor’s

motion in limine. The district court held that by its

nature, a “certificate” requires a signature and that

because the court did not “find any other reason why

this document would be used except in litigation,” the

Confrontation Clause in the Sixth Amendment of the

United States Constitution required that, in order for

the certificate to be admitted in defendant’s trial, the

person who prepared the certificate appear and be

subject to cross-examination. In sum, the district court

denied the prosecution’s motion in limine, ruling that a

signature was required on the certificate in order for it

to be effective as a basis for a DWLS charge and that

admission of the certificate without the testimony of its

author would violate defendant’s Confrontation Clause

rights. On September 2, 2010, the prosecutor applied in

the circuit court for leave to appeal pursuant to MCR

7.103.

On December 3, 2010, the circuit court held a hearing

on the prosecutor’s application for leave to appeal. On

January 3, 2011, the circuit court issued an order

granting interlocutory appeal and reversing in part and

affirming in part the district court’s order. First, the

circuit court concluded that “the issues [were] impor-

tant and not otherwise susceptible of review.” Next, it

reversed the district court and held that a signature was

not required for the certificate to be effective as a basis

for a DWLS charge because the court “cannot imply a

requirement for a handwritten signature in the absence

of any express or specific reference to a signature in

MCL 257.212” and because the “[t]he definitions of

From the briefing and argument it is inferred that defendant chal-

lenges receipt of the Order of Action containing the notice of suspension.

278 294 M

ICH

274 [Oct

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‘certify’ and ‘certification’ are not so clear as to make it

obvious from the use of ‘certification’ that a signature is

required.”

Finally, the circuit court affirmed the dis-

trict court’s ruling regarding the Confrontation Clause,

specifically holding that without the testimony of its

author, admission of the certificate would violate defen-

dant’s constitutional right to confront the witnesses

against him.

In reaching its decision regarding the Confrontation

Clause, the circuit court observed that there was no

evidence in the record that the certificate of mailing was

used for anything other than proof of the notice element

for DWLS. The circuit court did not find persuasive the

caselaw that the prosecution cited—People v Hislope,13

Mich App 63; 163 NW2d 675 (1968) (holding that a

certified driving record was admissible for proving facts

documentary in nature), and People v Khoshaba, unpub-

lished opinion per curiam of the Court of Appeals, issued

April 11, 2006 (Docket No. 257484) (holding that the “face

sheet” of a driving record, which contained the seal of the

state of Michigan, was a business record that was not

testimonial in nature)—because the certificate in the

instant case was not simply a multipurpose record or a

record kept by the Secretary of State’s office for its own

purposes. The circuit court distinguished the certificate

from a certificate authenticating a document as an accu-

rate copy of a public record. The circuit court concluded

that the certificate was a document certifying that the

author “took an action, namely, mailing a legal document

to a particular person and place, on a particular date —

facts that [were] essential elements of the criminal offense

with which the defendant [was] charged.”

Apparently because the circuit court ruled in its favor regarding

whether a signature was required, the sole issue the prosecutor raises on

appeal is with regard to the Confrontation Clause challenge.

2011] P

EOPLE V

UNLEY

279

PINION OF THE

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The prosecutor now appeals by leave granted.

Generally, this Court reviews a circuit court’s deci-

sion regarding the admission of evidence for an abuse of

discretion. People v Lukity, 460 Mich 484, 488; 596

NW2d 607 (1999). “When the decision regarding the

admission of evidence involves a preliminary question

of law, such as whether a statute or rule of evidence

precludes admissibility of the evidence, the issue is

reviewed de novo.” People v Washington, 468 Mich 667,

670-671; 664 NW2d 203 (2003). Accordingly, there is an

“abuse of discretion when a trial court admits evidence

that is inadmissible as a matter of law.” People v Katt,

468 Mich 272, 278; 662 NW2d 12 (2003). Also, “whether

the admission of evidence would violate a defendant’s

constitutional right of confrontation is a question of law

that we review de novo.” People v Dinardo, 290 Mich

App 280, 287; 801 NW2d 73 (2010).

III

The Confrontation Clause of the United States Con-

stitution provides that “[i]n all criminal prosecutions,

the accused shall enjoy the right...to be confronted

with the witnesses against him....”USConst, Am VI.

The Michigan Constitution provides the same guaran-

tee for criminal defendants. Const 1963, art 1, § 20;

Dinardo, 290 Mich App at 288. Testimonial statements

of witnesses absent from trial are therefore admissible

only when the original declarant is unavailable and the

defendant has had a prior opportunity to cross-examine

that declarant. Michigan v Bryant, 562 US ___; 131 S Ct

1143, 1153; 179 L Ed 2d 93 (2011); Crawford v Wash-

ington, 541 US 36, 54, 68; 124 S Ct 1354; 158 L Ed 2d

177 (2004). Ordinarily, whether a statement is testimo-

280 294 M

ICH

274 [Oct

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nial in nature depends on whether it constitutes a

“ ‘declaration or affirmation made for the purpose of

establishing or proving some fact.’ ” Crawford, 541 US

at 51 (citation omitted). This Court has explained that

“[s]tatements are testimonial where the ‘primary pur-

pose’ of the statements or the questioning that elicits

them ‘is to establish or prove past events potentially

relevant to later criminal prosecution.’ ” Dinardo, 290

Mich App at 288, quoting People v Lewis (On Remand),

287 Mich App 356, 360; 788 NW2d 461 (2010), quoting

Davis v Washington, 547 US 813, 822; 126 S Ct 2266;

165 L Ed 2d 224 (2006). If a statement is nontestimo-

nial, then “the Confrontation Clause does not restrict

state law from determining admissibility.” People v

Garland, 286 Mich App 1, 10; 777 NW2d 732 (2009),

citing Crawford, 541 US at 68.

A. CRAWFORD AND MELENDEZ-DIAZ

This Confrontation Clause case is governed by the

United States Supreme Court’s recent decision in

Melendez-Diaz v Massachusetts, 557 US 305; 129 S Ct

2527; 174 L Ed 2d 314 (2009). The pertinent facts of the

case are as follows:

Melendez-Diaz was charged with distributing cocaine

and with trafficking in cocaine in an amount between 14

and 28 grams. At trial, the prosecution placed into evidence

the bags seized from [the arrest scene]. It also submitted

three “certificates of analysis” showing the results of the

forensic analysis performed on the seized substances. The

certificates reported the weight of the seized bags and

stated that the bags “[h]a[ve] been examined with the

following results: The substance was found to contain:

Cocaine.” The certificates were sworn to before a notary

public by analysts at the State Laboratory Institute of the

Massachusetts Department of Public Health, as required

under Massachusetts law.

2011] P

EOPLE V

UNLEY

281

PINION OF THE

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Petitioner objected to the admission of the certifi-

cates, asserting that our Confrontation Clause decision

in Crawford v. Washington, 541 U. S. 36 [124 S Ct 1354;

158 L Ed 2d 177] (2004), required the analysts to testify

in person. The objection was overruled, and the certifi-

cates were admitted pursuant to state law as “prima

facie evidence of the composition, quality, and the net

weight of the narcotic...analyzed.” [Melendez-Diaz,

557 US at 308-309 (citations omitted).]

The Court described its previous ruling in Crawford

as follows:

In Crawford, after reviewing the Clause’s historical

underpinnings, we held that it guarantees a defendant’s

right to confront those “who ‘bear testimony’ ” against

him. A witness’s testimony against a defendant is thus

inadmissible unless the witness appears at trial or, if the

witness is unavailable, the defendant had a prior opportu-

nity for cross-examination.

Our opinion described the class of testimonial state-

ments covered by the Confrontation Clause as follows:

“Various formulations of this core class of testimonial

statements exist: ex parte in-court testimony or its

functional equivalent—that is, material such as affida-

vits, custodial examinations, prior testimony that the

defendant was unable to cross-examine, or similar pre-

trial statements that declarants would reasonably expect

to be used prosecutorially; extrajudicial statements...

contained in formalized testimonial materials, such as

affidavits, depositions, prior testimony, or confessions;

statements that were made under circumstances which

would lead an objective witness reasonably to believe

that the statement would be available for use at a later

trial.” [Id. at 309-310, quoting Crawford, 541 US at

51-52 (citation omitted.)]

The Melendez-Diaz Court concluded that the “certifi-

cates of analysis” were actually affidavits, explaining:

282 294 M

ICH

274 [Oct

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The documents at issue here, while denominated by

Massachusetts law “certificates,” are quite plainly affi-

davits: “declaration[s] of facts written down and sworn

to by the declarant before an officer authorized to

administer oaths.” They are incontrovertibly a “ ‘solemn

declaration or affirmation made for the purpose of

establishing or proving some fact.’ ” The fact in question

is that the substance found in the possession of

Melendez-Diaz and his codefendants was, as the prosecu-

tion claimed, cocaine—the precise testimony the ana-

lysts would be expected to provide if called at trial. The

“certificates” are functionally identical to live, in-court

testimony, doing “precisely what a witness does on direct

examination.” [Melendez-Diaz, 557 US at 310-311 (cita-

tions omitted.)]

The Melendez-Diaz Court summed up:

In short, under our decision in Crawford the analysts’

affidavits were testimonial statements, and the analysts

were “witnesses” for purposes of the Sixth Amendment.

Absent a showing that the analysts were unavailable to

testify at trial and that petitioner had a prior opportunity

to cross-examine them, petitioner was entitled to “ ‘be

confronted with’ ” the analysts at trial. [Id. at 311.]

Ultimately, the United States Supreme Court held

that the “certificates of analysis,” which showed the

forensic analysis results for the seized controlled sub-

stances, constituted testimonial statements barred

from admission by the Confrontation Clause. Id. at

308-311. The Melendez-Diaz Court observed that the

“certificates” were made under circumstances that

would lead an objective person to reasonably believe

that they would be available for use at trial and that

under Massachusetts law their sole purpose was to

provide prima facie evidence regarding the analyzed

substance. Id. at 311, citing Crawford, 541 US at 52,

and Mass Gen Laws ch 111, § 13. The Court

2011] P

EOPLE V

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283

PINION OF THE

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concluded that the analysts who created the “certifi-

cates” were witnesses for purposes of the Confrontation

Clause and that the defendants had the right to be

“confronted” by them at trial, absent a showing that

the analyst were unavailable to testify and defendant

had a prior opportunity for cross-examination.

Melendez-Diaz, 557 US at 311.

B. MCL 257.904(1) AND MCL 257.212

MCL 257.904(1) governs the elements of driving with

a suspended or revoked license and is the provision

defendant was charged with violating. It provides:

A person whose operator’s or chauffeur’s license or

registration certificate has been suspended or revoked and

who has been notified as provided in [MCL 257.212] of that

suspension or revocation, whose application for license has

been denied, or who has never applied for a license, shall

not operate a motor vehicle upon a highway or other place

open to the general public or generally accessible to motor

vehicles, including an area designated for the parking of

motor vehicles, within this state. [MCL 257.904(1).]

MCL 257.212 specifically states:

If the secretary of state is authorized or required to give

notice under this act or other law regulating the operation

of a vehicle, unless a different method of giving notice is

otherwise expressly prescribed, notice shall be given either

by personal delivery to the person to be notified or by

first-class United States mail addressed to the person at

the address shown by the record of the secretary of state.

The giving of notice by mail is complete upon the expira-

tion of 5 days after mailing the notice. Proof of the giving of

notice in either manner may be made by the certificate of a

person 18 years of age or older, naming the person to whom

notice was given and specifying the time, place, and manner

of the giving of notice. [Emphasis added.]

284 294 M

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C. APPLICATION

The prosecution argues that in determining that the

admission of the certificate of mailing would violate the

Confrontation Clause, both lower courts erroneously

relied on an expansive and inaccurate interpretation of

Melendez-Diaz. The certificate of mailing states that

defendant had been sent notice of his driver’s license

suspension. As the circuit court stated in its written

opinion, “The parties agree that the proof of giving

notice mandated by MCL 257.212 is a necessary ele-

ment for a charge of DWLS.” The parties are correct.

Again, MCL 257.904(1) states: “A person whose

operator’s...license...has been suspended or re-

voked and who has been notified as provided in [MCL

257.212] of that suspension or revocation...shall not

operate a motor vehicle....” So, in order to convict

defendant of DWLS, the prosecutor must prove that

defendant’s license had been suspended and that defen-

dant had been notified of the suspension as provided in

MCL 257.212. That defendant was notified of the sus-

pension as provided in MCL 257.212 is precisely what

the certificate of mailing that the prosecutor seeks to

have admitted states. Like the lab analyst report at

issue in Melendez-Diaz, the certificate of mailing in this

case is being offered to prove a fact in question.

Melendez-Diaz, 557 US at 310, citing Crawford, 541

US at 51. Indeed, the certificate of mailing here is

being offered to prove an element of the offense: the

notification required by the plain language of MCL

257.904(1). Furthermore, in light of the fact that

notification is an element of the offense, certainly the

certificate of mailing was “made under circumstances

which would lead an objective witness reasonably to

believe that the statement would be available for use

at a later trial....”Melendez-Diaz, 557 US at 311,

2011] P

EOPLE V

UNLEY

285

PINION OF THE

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quoting Crawford, 541 US at 52 (quotation marks omit-

ted). The lower courts did not misinterpret Melendez-

Diaz; to the contrary, the district court and circuit court

properly applied the holding of the case.

The prosecutor also argues that the certificate of

mailing at issue is analogous to a docketing statement

or a clerk’s certification authenticating an official

record and is therefore nontestimonial and admissible.

In support of his argument, the prosecutor relies on the

following passage in Melendez-Diaz:

The dissent identifies a single class of evidence which,

though prepared for use at trial, was traditionally admis-

sible: a clerk’s certificate authenticating an official

record—or a copy thereof—for use as evidence. But a

clerk’s authority in that regard was narrowly circum-

scribed. He was permitted “to certify to the correctness of

a copy of a record kept in his office,” but had “no authority

to furnish, as evidence for the trial of a lawsuit, his

interpretation of what the record contains or shows, or to

certify to its substance or effect.” [Melendez-Diaz, 557 US

at 322 (citations omitted).]

The prosecutor asserts that the situation in the

present case is identical, arguing that Secretary of State

records are similar to a clerk’s certification. The pros-

ecutor has missed a crucial distinction. If the document

at issue were merely a copy of defendant’s driving

record sent along with the certificate of mailing and “F.

Bueter” had merely been certifying the authenticity of

that record, the prosecutor would have an excellent

point. But the copy of the record is not at issue, and

Bueter was not certifying its authenticity. Bueter was

certifying that the notice of suspension had been sent,

the very fact that must be proved to convict defendant

of DWLS. The critical distinction is that the author of

the certificate of mailing, here F. Bueter, is providing

286 294 M

ICH

274 [Oct

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more than mere authentication of documents; he is

actually attesting to a required element of the charge.

Unlike a docketing statement or clerk’s certification,

the certificate of mailing will be used against defendant

to prove an element of DWLS and is necessary for

establishing an essential fact at trial. MCL 257.904(1).

The prosecutor also argues that the certificate of

mailing is admissible because the Secretary of State’s

records are not prepared “solely” for trial. MCL

257.204a(1) states:

The secretary of state shall create and maintain a

computerized central file that provides an individual his-

torical driving record for a person with respect to all of the

following:

(a) A license issued to the person under chapter 3 [of the

Michigan Vehicle Code, MCL 257.301 et seq.].

(b) A conviction, civil infraction determination, or other

licensing action that is entered against the person for a

violation of this act or a local ordinance substantially

corresponding to a provision of this act, or that is reported

to the secretary of state by another jurisdiction.

comply with a suspension issued pursuant to [MCL

257.321a].

(d) A cancellation, denial, revocation, suspension, or

restriction of the person’s operating privilege, a failure to

pay a department of state driver responsibility fee, or other

licensing action regarding that person, under this act or

that is reported to the secretary of state by another

jurisdiction. This subdivision also applies to nonresidents.

(e) An accident in which the person is involved.

(f) A conviction of the person for an offense described in

[MCL 257.319e].

(g) Any driving record requested and received by the

secretary of state under [MCL 257.307].

2011] P

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(h) Any notice given by the secretary of state and the

information provided in that notice under [MCL 257.317(3)

or (4)].

(i) Any other information received by the secretary of

state regarding the person that is required to be main-

tained as part of the person’s driving record as provided by

law.

Careful review of MCL 257.204a reveals that it does

not require creation of the certificates or maintenance

of the certificates in the Secretary of State’s records.

Although MCL 257.204a(1)(h) requires the mainte-

nance of “notices,” it does not require records to be kept

of the certificates verifying the fact that a notice has

been sent. Our review of the record in this case shows

that the certificate of mailing does not appear in defen-

dant’s certified driving record. The Secretary of State

created the certificate of mailing independently of MCL

257.204a.

The prosecutor asserts that the certificate of mailing

cannot be subject to Confrontation Clause require-

ments because it was not prepared solely for litigation.

The prosecutor’s argument is based on the following

passage from Melendez-Diaz:

Here, moreover, not only were the affidavits “ ‘made

under circumstances which would lead an objective witness

reasonably to believe that the statement would be available

for use at a later trial,’ ” but under Massachusetts law the

sole purpose of the affidavits was to provide “prima facie

evidence of the composition, quality, and the net weight” of

the analyzed substance. [Melendez-Diaz, 557 US at 311

(citations omitted).]

As can be seen, however, the last clause addressing the

Massachusetts law was not the main point. Under the

Melendez-Diaz test, the affidavits are subject to Con-

frontation Clause requirements if “made under circum-

288 294 M

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stances which would lead an objective witness reason-

ably to believe that the statement would be available for

use at a later trial.” Id. (citation and quotation marks

omitted). When noting that the sole purpose of the

affidavits under Massachusetts law was to provide

prima facie evidence of the nature and weight of the

substance, the Supreme Court was not narrowing the

rule or augmenting the test. Instead, when read in

context, the Melendez-Diaz Court was just pointing

out that not only do the affidavits meet that test, they

meet it without equivocation. That is, the Court was

referring to a specific fact about the affidavits at issue

in that case; it was not incorporating the notion of

“sole purpose” into the rule. In this case, the sole

purpose of the preparation of the certificate of mail-

ing was to provide proof of notice as required by MCL

257.212, which is necessary for a conviction under

MCL 257.904(1). The primary purpose of the certifi-

cate “is to establish or prove past events potentially

relevant to later criminal prosecution.” Davis, 547 US

at 822; Dinardo, 290 Mich App at 288 (quoting Davis).

Under these circumstances, an objective witness

could reasonably believe that the statement would be

available for use at a later trial. Melendez-Diaz, 557

US at 311.

The prosecutor also argues that “the purpose of this

Secretary of State document is not to create a brand

new record, as would a lab report analyzing controlled

substances.” This argument is made with reference to

the following language from Melendez-Diaz: “A clerk

could by affidavit authenticate or provide a copy of an

otherwise admissible record, but could not do what

the analysts did here: create a record for the sole

purpose of providing evidence against a defendant.”

Melendez-Diaz, 557 US at 322-323. The record belies

this claim. F. Bueter certainly created an original

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record, namely the certificate of mailing the notice of

suspension, for the purpose of providing evidence of

notice as required under MCL 257.904(1).

The prosecutor also argues that because the Secre-

tary of State is required by statute to maintain the

records, the records are not testimonial. The Melendez-

Diaz Court opined:

Business and public records are generally admissible

absent confrontation not because they qualify under an

exception to the hearsay rules, but because—having

been created for the administration of an entity’s affairs

and not for the purpose of establishing or proving some

fact at trial—they are not testimonial. Whether or not

they qualify as business or official records, the analysts’

statements here—prepared specifically for use at peti-

tioner’s trial—were testimony against petitioner, and

the analysts were subject to confrontation under the

Sixth Amendment. [Melendez-Diaz, 557 US at 324.]

Furthermore, in Melendez-Diaz, the Supreme Court

addressed the respondent’s argument that the ana-

lysts’ affidavits were admissible without confronta-

tion because they are “ ‘akin to the types of official

and business records admissible at common law.’ ” Id.

at 321 (citation omitted). The Supreme Court stated

that the affidavits do not qualify as such records, but

“even if they did, their authors would be subject to

confrontation nonetheless.” Id. The Supreme Court

continued: “Documents kept in the regular course of

business may ordinarily be admitted at trial despite

their hearsay status. See Fed. Rule Evid. 803(6). But

that is not the case if the regularly conducted busi-

ness activity is the production of evidence for use at

trial.” Id.

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So, regardless of the fact that the certificate of

mailing here could be considered a public record in the

sense that it is a record setting forth “matters observed

pursuant to duty imposed by law as to which matters

there was a duty to report,” MRE 803(8), it is testimony

against defendant. And the prosecutor concedes that

one purpose of the certificate of mailing is “the produc-

tion of evidence for use at trial,” Melendez-Diaz, 557 US

at 321, because the certificate of mailing will be used to

establish that notice was provided by the Secretary of

State to defendant, an element of DWLS. MCL

257.904(1). Indeed, the certificate of mailing is the only

evidence of proof of notice and is created solely for that

purpose. In other words, even if the certificate of

mailing was prepared in the regular course of the

Secretary of State’s business, the certificate of mailing

is testimonial because it will be used for the purpose of

proving or establishing some fact at trial. Therefore, it

is subject to Confrontation Clause requirements.

The prosecutor also relies on this Court’s conclusion

in Lewis (On Remand), 287 Mich App at 363, that an

autopsy report prepared pursuant to a statutorily im-

posed duty was not testimonial in nature. At issue in

that case was whether an autopsy report prepared by

two nontestifying medical examiners, but admitted

through the testimony of a third medical examiner,

violated defendant’s right to confront witnesses against

him. This Court had originally analyzed the issue under

Crawford and two Michigan cases, but our Supreme

Court directed this Court on remand to reconsider the

issue in light of Melendez-Diaz. This Court stated:

In our previous opinion, we thoroughly discussed this

Court’s applications of Crawford in People v Jambor (On

Remand), 273 Mich App 477; 729 NW2d 569 (2007), and

People v Lonsby, 268 Mich App 375; 707 NW2d 610 (2005).

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On the basis of these decisions, we concluded that the

autopsy report was nontestimonial because it “was ‘not

prepared in anticipation of litigation against defendant,’

but pursuant to a ‘duty imposed by law,’ MRE 803(8).”

[People v] Lewis, [unpublished opinion of the Court of

Appeals, issued April 15, 2008 (Docket No. 274508)], citing

Jambor. We also noted that a medical examiner is required

by statute to investigate the cause and manner of death of

an individual under certain circumstances, including death

by violence, MCL 52.202(1)(a), and thus further concluded

that the admission of the autopsy report through [a differ-

ent medical examiner’s] testimony did not violate defen-

dant’s Sixth Amendment rights under Crawford and

Davis. [Id. at 360.]

On remand, this Court arrived at the same result,

reasoning:

The Supreme Court’s determination that the forensic

analysts’ certificates in Melendez-Diaz were testimonial

was based on characteristics that are not present here.

Unlike the certificates, which were prepared for the “sole

purpose” of providing “prima facie evidence” against the

defendant at trial, Melendez-Diaz, 557 US at [311], the

autopsy report was prepared pursuant to a duty imposed by

statute. Lewis, unpub op at 4-5; MRE 803(8); MCL

52.202(1)(a). As we stated in our previous opinion:

“[W]hile it was conceivable that the autopsy report

would become part of [a] criminal prosecution, investiga-

tions by medical examiners are required by Michigan

statute under certain circumstances regardless of whether

criminal prosecution is contemplated.” [Lewis, unpub op at

4.]

Furthermore, unlike the way the certificates in Melendez-

Diaz were used, [the testifying medical examiner] formed

independent opinions based on objective information in the

autopsy report and his opinions were subject to cross-

examination. See Lewis, unpub op at 5; cf., Jambor, 273

Mich App at 488, and Lonsby, 268 Mich App at 392.

Because the autopsy report was not prepared prima-

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rily for use in a later criminal prosecution and defendant

cross-examined [the testifying medical examiner] regard-

ing his independent opinions based on the autopsy report,

the report is not testimonial evidence and defendant was

not denied the right to be confronted by the two nontesti-

fying medical examiners who prepared it. Davis, 547 US at

822; Lonsby, 268 Mich App at 392. [Id. at 362-363.]

Thus, under Lewis, the facts that the autopsy report

was prepared pursuant to a statutorily imposed duty

and that the report had to be prepared regardless of

whether criminal prosecution was contemplated were

important factors.

And as the prosecutor argues here,

that is also true of driving records. Indeed, under MCL

257.204a, driving records must be compiled and put

into the Secretary of State’s centralized computer file

completely independently of any contemplation of

criminal prosecution.

It is important to keep in mind just what the pros-

ecutor wants to have admitted and what the lower

courts refused to admit. It was not defendant’s driving

record. Nor was it the notice of suspension. It was the

certificate of mailing that the notice of suspension was

in fact mailed to defendant. The key factor in this case

is that the certificate of mailing is proof of notice by

virtue of the plain language of MCL 257.212, which will

indisputably be used to establish an element of the

offense charged. MCL 257.904(1). In this case, unlike in

Lewis, the certificate of mailing is the only proof of

notice, and it is necessary to establish the notice ele-

ment of the DWLS. MCL 257.904(1).

It is of further moment that the independent opinions provided the

proof of elements of the crime and that the author of those opinions was

subject to cross-examination. We also note that the continued viability of

Lewis may be in question given the recent decision of the Supreme Court

in Bullcoming v New Mexico, 564 US ___; 131 S Ct 2705; 180 L Ed 2d 610

(2011), as discussed later in this opinion.

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The certified driving record cannot stand in for the

certificate of mailing because the certified driving record

says nothing about the certification. There is no entry in

defendant’s certified driving record regarding the June

22, 2009, certification of mailing. In fact, the certified

driving record shows that notification occurred on June

11, 2009. And the June 11, 2009, notice itself provides that

defendant’s driving privileges and license were to be

revoked from June 27, 2009, through at least June 26,

2010. The effective date within the notice coincides with

the provision of MCL 257.212 that the giving of notice by

mail is complete upon the expiration of five days after

mailing the notice. The certificate of mailing shows that it

was sent on June 22, 2009, and five days later constitutes

the effective date of June 27, 2009. We cannot ascertain

the effective date of the revocation from the certified copy

of the driving record—the record that the Secretary of

State is required to maintain pursuant to MCL

257.204a(1). It is only the permissive record—the certifi-

cate of mailing—that rounds out the salient dates re-

quired under MCL 257.212. Thus, we conclude that the

certificate of mailing is “functionally identical to live,

in-court testimony, doing ‘precisely what a witness does

on direct examination.’ ” Melendez-Diaz, 557 US at

310-311 (citations omitted).

Finally, the prosecutor directs our attention to this

Court’s decisions in Hislope and Khoshaba.InHislope,

this Court held that the right of confrontation does not

apply to the defendant’s driving record compiled by the

Secretary of State. This Court explained:

In view of the fact that defendant’s driving record

certified by the secretary of State is essentially an abstract

of documents concerning accidents in which defendant was

involved, moving violations of which he was convicted, and

revocations and suspensions of his operating privileges, it

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would be proving facts documentary in nature and so

would be admissible for proving the fact that defendant’s

driver’s license was revoked. [Hislope, 13 Mich App at 67.]

Hislope is completely irrelevant to the present case

because, once again, it is not defendant’s driving record

that is at issue, it is the certificate of mailing that the

notice of suspension was in fact mailed. That defendant

was notified of the suspension in a specific manner is an

essential element of the offense. The certificate of

mailing attests to the personal capacity, knowledge, and

actions of its author. More specifically, the certificate of

mailing contains testimony of F. Bueter that he is of

sufficient age and that the original order of suspension

was mailed. The certificate does not certify the record of

the Secretary of State, but that the Secretary of State

behaved in a certain way. The certificate of mailing is

not a computer-generated record, but instead is a typed

certificate with the operative date handwritten by the

author. Whether the order of suspension was given by

personal delivery or by mail, the certificate of mailing is

offered as a substitute for the testimony of the person or

persons making the delivery to the defendant or mailing

to the address of record for the defendant as required by

MCL 257.212. The proffered certificate of mailing can-

not be confronted about when, where, or how the

statutory obligation to provide notice of suspension of

driving privileges was accomplished.

In Khoshaba, unpub op at 5-6, this Court held that

the “face sheet” of a driving record, which contained the

seal of the state of Michigan, was a business record that

was not testimonial in nature. Unlike the certificate of

mailing in the instant case, the “face sheet” was created

independent of a prosecutorial purpose, and it did not

contain declarations or affirmations made for the pur-

pose of proving a fact at trial. With respect to the

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prosecutor’s reliance on Hislope and Khoshaba, cases

with which we do not quarrel, they are not germane to

the issues presented in this appeal.

We conclude that the certificate of mailing at issue in

this case is a testimonial statement under the Confron-

tation Clause. We point out that contrary to the pros-

ecution’s contention that the lower courts improperly

relied on and interpreted Melendez-Diaz, 557 US 305,

another recent Supreme Court decision supports the

conclusion that the certificate of mailing is testimonial,

Bullcoming v New Mexico, 564 US ___; 131 S Ct 2705;

180 L Ed 2d 610 (2011). In Bullcoming, the defendant

was arrested for driving while intoxicated. The prosecu-

tor presented evidence that the defendant’s blood alco-

hol level was well above the legal limit through a

certified forensic laboratory report recording the re-

sults of a gas chromatograph machine that determined

the blood alcohol level. Id. at ___; 131 S Ct at 2709. The

prosecution did not call as a witness the analyst who

actually completed and signed the certification. Instead,

the prosecution called another analyst who was familiar

with the laboratory’s testing procedures, but had nei-

ther participated in nor observed the test on the defen-

dant’s blood sample. Id. at ___; 131 S Ct at 2709. The

Supreme Court was presented with the question

“whether the Confrontation Clause permits the pros-

ecution to introduce a forensic laboratory report con-

taining a testimonial certification—made for the pur-

pose of proving a particular fact—through the in-court

testimony of a scientist who did not sign the certifica-

tion or perform or observe the test reported in the

certification.” Id. at ___; 131 S Ct at 2710.

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The Supreme Court held “that surrogate testimony

of that order does not meet the constitutional require-

ment. The accused’s right is to be confronted with the

analyst who made the certification, unless that analyst

is unavailable at trial, and the accused had an opportu-

nity, pretrial, to cross-examine that particular scien-

tist.” Id. at ___; 131 S Ct at 2710. The Supreme Court

also stated that its answer to the question presented

was “in line with controlling precedent,” namely, Craw-

ford and Melendez-Diaz. Id. at ___; 131 S Ct at 2713.

The Supreme Court again articulated the rule we must

follow: “As a rule, if an out-of-court statement is testi-

monial in nature, it may not be introduced against the

accused at trial unless the witness who made the

statement is unavailable and the accused has had a

prior opportunity to confront that witness.” Id. at ___;

131 S Ct at 2713. The Supreme Court also rejected the

argument that “unbending application of the Confron-

tation Clause...would impose an undue burden on the

prosecution.” Id. at ___; 131 S Ct at 2717. The Supreme

Court reiterated the notion set out in Melendez-Diaz

that the constitutional requirement at issue “may not

be disregarded at our convenience.” Id. at ___; 131 S Ct

at 2718 (citation, quotations marks, and alterations

omitted).

The dissent in Bullcoming believed that “requiring

the State to call the technician who filled out a form and

recorded the results of a test is a hollow formality.” Id.

at ___; 131 S Ct at 2724 (Kennedy, J., dissenting).

Likewise, in the instant case, it has crossed our minds

that calling F. Bueter to testify that he is of suitable

age and actually mailed the order of suspension in

this case is a “hollow formality” and could cause a

burden on both the prosecutor and the Secretary of

State. Whether a burden is experienced is yet to be

seen. Obviously, a stipulation that the required

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notice of suspension, a predicate element of the crime of

DWLS, is uncontested may be a routine experience and

the burden of presenting the author of the certificate of

mailing a rare occurrence in a select few cases, such as

when a defendant contests the receipt of the notice.

Nevertheless, we are bound by Crawford and its prog-

eny and so hold that the circuit court did not err by

affirming the district court’s denial of the motion in

limine to admit the certificate of mailing without testi-

mony because the certificate is a testimonial statement

under the Confrontation Clause.

Affirmed.

ANSEN

J., concurred with D

ONOFRIO

,J.

AAD

,P.J. (dissenting).

I. INTRODUCTION

I respectfully dissent because the certificate of mail-

ing is nontestimonial. Accordingly, I would reverse the

circuit court’s order.

The majority incorrectly holds that because proof of

notice is an element of driving while license suspended

(DWLS), the certificate of mailing produced by the

Secretary of State is testimonial. This analysis is flawed

because it does not address the context in which the

certificate was created, and it reasons backwards to

conclude that a statement must be testimonial if it

relates to an element of the crime. In Davis v Washing-

ton, 547 US 813; 126 S Ct 2266; 165 L Ed 2d 224 (2006),

the United States Supreme Court held that consider-

ation of context is critical in determining whether

evidence is testimonial. See id. at 822. In this case, the

context in which the certificate of mailing was created

demonstrates that it was made before the commission

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of a crime, and thus independently from any investi-

gatory or prosecutorial purpose. Further, it is not the

rule as articulated in Crawford v Washington, 541 US

36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), and its

progeny that evidence is testimonial merely because

it constitutes proof of an element of a crime. More-

over, to hold that the certificate of mailing here is

testimonial runs contrary to the purpose of the Con-

frontation Clause—to ensure the reliability of evidence

through vigorous cross-examination—because cross-

examination here would elicit little or nothing of value

to ensure that reliability.

II. ANALYSIS

A. TESTIMONIAL EVIDENCE UNDER DAVIS

I disagree with the majority’s conclusion that be-

cause proof of notice is an element of DWLS, the

disputed certificate of mailing is testimonial. The

simple fact that a piece of evidence proves an element of

a crime does not automatically render it testimonial. As

our Supreme Court explained in Davis, it is the context

surrounding the creation of evidence that determines

whether that evidence is testimonial—not whether it

proves an element of the crime charged.

Davis involved a domestic dispute between defendant

Davis and his former girlfriend, Michelle McCottry.

Davis, 547 US at 817. Davis violated a no-contact order

and assaulted McCottry. Id. at 818. McCottry called 911

while the incident was still in progress and, at the

prompting of the 911 operator, gave Davis’s name and a

description of the assault over the telephone. Id. at

817-818. The prosecutor used a recording of the 911 call

at trial. Id. at 819. It was presumably an important

piece of evidence in leading to Davis’s conviction be-

cause the state’s only witnesses in the case were the two

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police officers who responded to the 911 call and Mc-

Cottry did not testify at trial. Id. at 818-819. Davis took

the position that the prosecution’s use of the recorded

911 call violated his constitutional rights because the

recording was testimonial and he did not cross-examine

McCottry. See id. at 819.

The Supreme Court rejected Davis’s argument and

held that the 911 recording was nontestimonial. Id. at

822. In explaining its decision, the Court stressed the

context in which the 911 call was made and contrasted

its provenance with that of a truly testimonial state-

ment:

The question before us in Davis, then, is whether,

objectively considered, the interrogation that took place in

the course of the 911 call produced testimonial statements.

When we said in Crawford that “interrogations by law

enforcement officers fall squarely within [the] class” of

testimonial hearsay, we had immediately in mind (for that

was the case before us) interrogations solely directed at

establishing the facts of a past crime, in order to identify

(or provide evidence to convict) the perpetrator. The prod-

uct of such interrogation, whether reduced to a writing

signed by the declarant or embedded in the memory (and

perhaps notes) of the interrogating officer, is testimonial. It

is, in the terms of the 1828 American dictionary quoted in

Crawford, “ ‘[a] solemn declaration or affirmation made

for the purpose of establishing or proving some fact.’ ” A

911 call, on the other hand, and at least the initial

interrogation conducted in connection with a 911 call, is

ordinarily not designed primarily to “establis[h] or

prov[e]” some past fact, but to describe current circum-

stances requiring police assistance. [Id. at 826-27 (citations

omitted).]

In other words, in the 911 recording, McCottry was

“speaking about events as they were actually happen-

ing, rather than describ[ing] past events.” Id. at 827

(citations and quotation marks omitted). Such a situa-

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tion, the Court ruled, is entirely different from the

police interrogation at issue in Crawford, which “took

place hours after the events [the speaker] described had

occurred.” Id. The Court was careful to note that

McCottry faced “an ongoing emergency” and that the

“circumstances of [her] interrogation objectively indi-

cate its primary purpose was to enable police assistance

to meet an ongoing emergency. She simply was not

acting as a witness; she was not testifying.” Id. at 828.

Thus—despite its critical importance in securing

Davis’s conviction—the 911 call was not testimonial.

Davis, then, stands for two propositions regarding

the classification of evidence as testimonial or nontes-

timonial. First, the context in which the evidence is

created is crucial in determining whether that evidence

is testimonial or nontestimonial. Second, it is inconse-

quential for the purposes of this determination whether

the evidence in question is essential to proving that

defendant committed the charged crime. Accordingly,

we must examine the context of the evidence at issue

here—the context in which the certificate of mailing

was created—to accurately determine whether or not

that certificate is testimonial or nontestimonial.

B. THE CERTIFICATE OF MAILING

As the majority observes, the certificate of mailing at

issue here was created pursuant to MCL 257.212, which

outlines the procedures used in mailing notices of

license status to their recipients. MCL 257.212 fits in

the wider statutory framework created by MCL

257.204a(1), which governs the maintenance of driving

records in Michigan.

And, as the majority points out, a

Note the primarily administrative—not criminal or prosecutorial—

nature of MCL 257.204a(1). Among other things, this provision requires

the Secretary of State to “create and maintain a computerized central file

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notice sent in compliance with MCL 257.212 is a nec-

essary element of DWLS under MCL 257.904(1).

The majority makes much of this link between the

certificate of mailing and MCL 257.904(1), asserting

that the former’s presence in the latter’s elements

automatically makes the former testimonial. The “pri-

mary purpose of the certificate,” the Court states, “ ‘is

to establish or prove past events potentially relevant to

later criminal prosecution.’ ” Ante at 289. The quoted

passage is from Davis, but it is used out of context. The

sentence the majority quotes applies only to statements

made during police interrogations—not documents pro-

duced by the Secretary of State, or evidence in general.

The full quotation reads:

Without attempting to produce an exhaustive classifica-

tion of all conceivable statements...aseither testimonial

or nontestimonial, it suffices to decide the present cases to

hold as follows: Statements are nontestimonial when made

in the course of police interrogation under circumstances

objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an

ongoing emergency. They are testimonial when the circum-

stances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interroga-

tion is to establish or prove past events potentially relevant

to later criminal prosecution. Davis, 547 US at 822 (em-

phasis added).

While the majority is certainly correct that the cer-

tificate of mailing is an essential piece of evidence in

proving defendant’s guilt, it does not follow that this

renders the certificate testimonial. As noted, the ma-

jority’s analysis also ignores the context in which the

evidence is made. At the time the certificate of mailing

that provides an individual historical driving record for a person”—a

central file, hence, that includes every driver (criminal and noncriminal

alike) in the state of Michigan.

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was created, no crime had taken place, nor was there an

ongoing criminal investigation involving the defendant.

Therefore, it was impossible for F. Bueter, or an “objec-

tive witness,” “reasonably to believe” that the certifi-

cate of mailing, at the time of its creation, “would be

available for use at a later trial.” Crawford, 541 US at

52 (citation and quotation marks omitted).

The Secretary of State suspended Nunley’s license

effective June 11, 2009. The corresponding certificate of

mailing is dated June 22, 2009. Nunley was cited for

DWLS on September 9, 2009. Thus, Nunley’s “driving

record was created prior to the events leading up to his

criminal prosecution.” State v Shipley, 757 NW2d 228,

237 (Iowa, 2008).

The certificate of mailing “would

exist even if there had been no subsequent criminal

prosecution.” Id. Indeed, it predated the event that led

to Nunley’s citation by more than two months. It

strains credulity to suggest that the certificate was

“made under circumstances which would lead an objec-

Courts in other states have been careful to note this temporal

distinction in deciding whether evidence is testimonial. In addition to

Shipley, see State v Vonderharr, 733 NW2d 847, 852 (Minn App, 2007)

(contrasting certificates of laboratory analysis prepared exclusively for

prosecutorial use with state-created driving records: “Unlike the labora-

tory report, Vonderharr’s [Department of Public Safety] records were not

prepared for the purpose of prosecuting Vonderharr. The records were

produced before Vonderharr was charged and even before the incident

that lead [sic] to him being charged occurred.”); People v Espinoza, 195

P3d 1122, 1127 (Colo App, 2008) (holding a proof of notice of license

revocation nontestimonial: “Although an objective person who prepared

such a proof of service might reasonably believe it would be available in

the event of a later traffic violation, we conclude that this possibility does

not make the document testimonial where, as here, the document served

a routine administrative function and was created before the charged

crime occurred.”); and State v Dukes, 38 Kan App 2d 958, 963; 174 P3d

914 (2008) (ruling that a driving record is nontestimonial because the

state is statutorily required to create and maintain driving records

regardless of whether they become relevant to a later criminal investi-

gation).

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tive witness reasonably to believe that the statement

would be available for use at a later trial” because

Nunley had not committed a crime and F. Bueter, when

he certified the mailing, had no reason to expect that

Nunley would commit a crime. See Crawford, 541 US at

52. Bueter, or any other state employees who create

certificates of mailing, “cannot be considered wit-

nesses” against Nunley “when no prosecution existed at

the time of data entry.” Shipley, 757 NW2d at 237.

Bueter would likely have suspected that the certificate

of mailing was just that: a certificate of notice, certify-

ing a warning to encourage defendant to comply with

the law, not a piece of evidence for use in a hypothetical

trial.

As such, the certificate of mailing was “created

under conditions far removed from the inquisitorial

investigative function—the primary evil that Crawford

was designed to avoid.” Id. at 238. Therefore, on the

basis of the context in which it was created, the certifi-

cate of mailing is nontestimonial.

C. COMPARISON TO OTHER CONFRONTATION CLAUSE CASES

In Crawford, Davis, People v Lonsby, 268 Mich App

375; 707 NW2d 610 (2005), and Melendez-Diaz v Mas-

sachusetts, 557 US 305; 129 S Ct 2527; 174 L Ed 2d 314

(2009), the statements, affidavits, and laboratory cer-

tificates at issue were made after the alleged commis-

Indeed, the notice itself (which defendant admits receiving) contains

a large header stating “WARNING — DO NOT DRIVE,” suggesting that

the purpose of the notice (and its accompanying certification) is to help

the suspended license-holder comply with the law and avoid any ensuing

consequences, not to serve as a piece of evidence should the suspended

license-holder disregard the notice and break the law. The hundreds (or

thousands) of such certificates of mailing the Secretary of State produces

each month are certainly not all used in criminal trials—in fact, it is more

probable that the vast majority of certificates are never used as evidence

at all, as the recipients of the suspended-license notices comply with the

law and do not drive-unlike defendant here.

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sion of a crime, as part of ongoing criminal investiga-

tions of the defendants.

The “statements” in each case

were held to be testimonial because they were “made

under circumstances which would lead an objective

witness reasonably to believe that the statement would

be available for use at a later trial.” Crawford, 541 US

at 52 (citation and quotation marks omitted). In other

words, at the time the evidence in question was created,

the defendants in Crawford, Davis, Lonsby, and

Melendez-Diaz were already identified as suspects by

the criminal justice system. For that reason, that

evidence—created after the commission of the crime,

with an express prosecutorial purpose—was testimo-

nial. And, accordingly, the defendants in those cases had

the right to confront and cross-examine the individuals

who produced the very evidence used to prove the

crime.

Crawford and its progeny robustly defended the right

of confrontation for good reason: the “crucible of cross-

examination” is essential to assessing the reliability of

evidence. Crawford, 541 US at 61. “The Clause thus

reflects a judgment, not only about the desirability of

reliable evidence (a point on which there could be little

dissent), but about how reliability can best be deter-

mined.” Id. The Confrontation Clause, then, is not a

mere formality that serves “symbolic goals”—instead,

“ ‘[t]he right to confront and to cross-examine wit-

nesses is primarily a functional right that promotes

See Crawford, 541 US at 38-40 (involving a witness’s response to a

police interrogation regarding a stabbing); Davis, 547 US at 822 (holding

that statements made to law-enforcement personnel during a 911 call

immediately after the commission of a crime were nontestimonial);

Lonsby, 268 Mich App at 380-381 (concerning a lab report conducted

after defendant allegedly committed sexual assault); and Melendez-Diaz,

557 US at 308-309 (addressing a forensic analysis of substance in the

defendant’s possession suspected to be cocaine).

2011] P

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reliability in criminal trials.’ ” People v Fackelman, 489

Mich 515, 528; 802 NW2d 552 (2011), quoting Lee v

Illinois, 476 US 530, 540; 106 S Ct 2056; 90 L Ed 2d 514

(1986).

Melendez-Diaz explains why confrontation ensures

the reliability of evidence at trial, in the context of

forensic analysts responsible for testing and assessing

evidence against criminal defendants. First, “neutral

scientific testing” is not necessarily neutral or reliable:

“Forensic evidence is not uniquely immune from the

risk of manipulation.” Melendez-Diaz, 557 US at 318. “A

forensic analyst responding to a request from a law

enforcement official may feel pressure—or have an

incentive—to alter the evidence in a manner favorable

to the prosecution.” Id.

Confrontation, through rigor-

ous cross-examination, can help expose such fraud if it

exists. Second, “[c]onfrontation is designed to weed out

not only the fraudulent analyst, but the incompetent

one as well.” Id. at 319.

Like all expert witnesses, “an

analyst’s lack of proper training or deficiency in judg-

ment may be disclosed in cross-examination.” Id. at

320. Third, confrontation provides the defendant a

chance to question the technician’s methodology. Id. at

320-321.

See also Lonsby, 268 Mich App at 391 (“[T]he State Police crime lab

is an arm of law enforcement and the scientists’ written analyses are

regularly prepared for and introduced in court.”).

See also Lonsby, 268 Mich App at 392 (“Moreover, the evidence at

issue was based on [the analyst’s] subjective observations and analytic

standards that established a fact critical to proving the alleged

offense.”).

See also Lonsby, 268 Mich App at 392 (“Because the evidence was

introduced through the testimony of [the analyst’s superior], who had no

firsthand knowledge about [the analyst’s] observations or analysis of the

physical evidence, defendant was unable, through the crucible of cross-

306 294 M

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None of these concerns is present here. The risks of

inexperience or incompetence inherent in the foren-

sic analyst’s laboratory are not found at the desk of a

driving-record administrator. See State v Murphy, 991

A2d 35, 42 (Me, 2010) (“The certificates of the

Secretary of State, at issue here...,donotinvolve

expert analysis or opinion.”). The certificates are not

made by highly trained experts, who must constantly

retrain and refresh their methodologies. If “[c]on-

frontation is designed to weed out not only the

fraudulent analyst, but the incompetent one as well,”

Melendez-Diaz, 557 US at 319, cross-examination will

do no such weeding here, as there is little, if any, room

for fraud or incompetence in creating certificates of

mailing.

Further, there is no risk of bias in the certification

and dissemination of hundreds of thousands of state

administrative documents, because the state employee

charged with that task reports “neutral information”—

namely, the fact that a notice of suspended license was

sent to a suspended-license holder. Murphy, 991 A2d at

42. In this case, that information was all the more

neutral because the certificate of mailing was made long

before the commission of a crime—and with no advance

knowledge that such a crime would take place. At the

time F. Bueter created the so-called “testimonial” state-

ment, defendant was simply a record—he was not in the

criminal-justice system, as he had committed no crime

and thus could not be charged with one. Accordingly,

Bueter, and the work product that he certified, cannot

be considered a witness against Nunley. See Shipley,

757 NW2d at 237.

examination, to challenge the objectivity of [the analyst] and the accuracy

of her observations and methodology.”).

2011] P

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,P.J.

For these reasons, the cross-examination of F. Bueter

or his colleagues does not serve the fundamental pur-

pose of the Confrontation Clause: to serve as a vehicle

to advance the truth and promote reliability at criminal

trials. Fackelman, 489 Mich at 528.

D. PRACTICAL EFFECTS OF MAJORITY OPINION

If called to testify, it is highly unlikely that an

administrative employee such as F. Bueter would be

able to identify a specific recipient of his mailing. Yet

the majority’s holding—classifying an administrative

document from the Secretary of State as testimonial—

will compel the prosecutor to produce such adminis-

trative employees from Lansing at every suspended-

license trial in the state. Considering the volume of

notices and other documents produced by the Secre-

tary of State’s office, a state employee cannot con-

ceivably remember signing and certifying a particular

notice. The Secretary of State presumably creates

identical certificates for any other driver whose li-

cense is suspended for any number of reasons, which

likely amounts to hundreds of thousands of certifi-

cates a year. And, as discussed, there is almost no

room for bias or fraud on the employee’s part—when

a certificate of mailing is created, the hypothetical

defendant has not yet committed any crime. If the

hypothetical defendant becomes real, the state em-

ployee’s testimony at trial will reveal nothing, much

less offer a substantial benefit to the defendant.

Calling such a witness for cross-examination would

truly be a “hollow formality” and a waste of judicial

resources. Bullcoming v New Mexico, 564 US ___; 131

S Ct 2705, 2724; 180 L Ed 2d 610 (2011) (Kennedy, J.,

dissenting).

308 294 M

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III. CONCLUSION

For the foregoing reasons, I would reverse the ruling

of the circuit court, hold that the Secretary of State’s

certificate of mailing is nontestimonial, and remand the

case for further proceedings.

2011] P

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ELBA TOWNSHIP v GRATIOT COUNTY DRAIN COMMISSIONER

Docket No. 303211. Submitted October 11, 2011, at Lansing. Decided

October 18, 2011, at 9:00 a.m. Leave to appeal granted, 491 Mich

924.

Elba Township brought an action in the Gratiot Circuit Court

against the Gratiot County Drain Commissioner seeking to enjoin

the drain commission from consolidating the #181-0 Drain Drain-

age District’s established tributary drains. Elba Township argued

that the consolidation had violated the Drain Code, MCL 280.1 et

seq. because the #181-0 Drain petition for consolidation lacked the

statutorily required number of freeholder signatures and the

notice of the board of determination hearing had been deficient.

David Osborn, Mark Crumbaugh, Cloyd Cordray, and Rita Cordray

(the Osborn plaintiffs) intervened in the action, seeking declara-

tory relief and claiming that the notice had violated the Drain

Code and their due process rights. The drain commissioner moved

for summary disposition, arguing that the appropriate number of

signatures had been gathered and that the notice given appropri-

ately informed those affected by the proposed drain consolidation

of the date, time, and place of the board of determination meeting.

Elba Township and the Osborn plaintiffs filed a cross-motion for

summary disposition. The court, Randy L. Tahvonen, J., granted

the drain commissioner’s motion finding that under MCL 280.191

only 5 freeholder signatures were required on the petition rather

than the 50 signatures the township claimed were required under

MCL 280.441. Elba Township and the intervening Osborn plain-

tiffs appealed.

The Court of Appeals held:

1. A petition seeking to consolidate two or more drainage

districts must be signed by at least 50 property owners within the

proposed consolidated drainage district, MCL 280.441, but a

petition to clean out, relocate, widen, or straighten a drain need be

signed by only 5 freeholders whose land would be subject to

assessment for the improvements, MCL 280.191. Under MCL

280.194, property owners subject to a proposed assessment need

file only one petition for one proceeding when maintenance,

improvements, and consolidation of drainage districts are being

requested. Reading the three provisions together to avoid a

310 294 M

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construction that would render any part of the statutes surplusage

or nugatory, the more onerous signature requirement of MCL

280.441 indicated the Legislature’s intent that it should be harder

to initiate a consolidation proceeding than one for maintenance

because of the potential for consolidation to affect a much larger

segment of the population than maintenance and improvements to

existing drains. The 50-signature requirement of MCL 280.441

applied to the combined petition and the #181-0 Drain petition

was invalid because it requested consolidation of the drainage

district’s established tributary drains but was signed by only five

freeholders within the drainage district. The circuit court erred by

concluding that the drain commissioner had authority to act on

the petition.

2. Under MCL 280.441(2), the drain commissioner must give

notice of the time, date, and place of the meeting scheduled to

determine whether consolidation of two or more drainage districts

would be conducive to public health, convenience, or welfare. The

notice must not be misleading or make any untrue statement or

fail to explain or omit any fact that would be important to an

affected person when making his or her decision regarding the

consolidation. The notice sent to the Osborn plaintiffs provided

the date, time, and place of the board of determination hearing and

that evidence would be taken regarding the improvements, main-

tenance, and consolidation proposed as well as a specific descrip-

tion of the area where the work would be done. The notice was

misleading because all the districts of the drainage district were

included within the proposed project, but only certain sections

within various townships were listed in the notice as being

included within the consolidation. A person living outside those

sections of the townships listed would not have readily understood

that his or her property would be liable for an assessment if the

consolidation was allowed.

3. Under MCL 280.161, an affected party must challenge

minor errors and irregularities under the Drain Code by filing for

a writ of certiorari in the circuit court within 10 days after the final

order of determination is issued. However, certiorari is not the

exclusive remedy under the Drain Code; equity will provide a

remedy when the drain commissioner acts without jurisdiction

and there is no adequate remedy at law. The circuit court properly

exercised equitable jurisdiction because the Osborn plaintiffs had

challenged the drain commissioner’s authority to act on the

#181-0 Drain petition absent the signatures of 50 property owners

required by MCL 280.441(1). This was not a minor error or

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irregularity under the Drain Code and the type of error that the

Drain Commissioner could correct.

Reversed in part and affirmed in part.

1. D

RAINS —

ONSOLIDATION OF

RAIN

ISTRICTS —

ETITIONS —

IGNATURE

EQUIREMENTS

A petition seeking to consolidate two or more drainage districts must

be signed by at least 50 property owners within the proposed

consolidated drainage district under MCL 280.441, but a petition

to clean out, relocate, widen, or straighten a drain need be signed

only by 5 freeholders whose land would be subject to assessment

for the improvements under MCL 280.191; under MCL 280.194,

property owners subject to a proposed assessment need file only

one petition for one proceeding when maintenance, improvements,

and consolidation of drainage districts are being requested, but the

signatures of 50 property owners are required for combined

petitions that include a request for consolidation.

2. D

RAINS —

ONSOLIDATION OF

RAIN

ISTRICTS —

OARD OF

ETERMINATION

EARING —

OTICE

EQUIREMENT

The drain commissioner must give notice of the time, date, and place

of the meeting scheduled to determine whether consolidation of

two or more drainage districts would be conducive to the public

health, convenience, or welfare; the notice must not be misleading

or make any untrue statement or fail to explain or omit any fact

that would be important to an affected person when making his or

her decision regarding the consolidation (MCL 280.441[2]).

3. D

RAINS —

RAIN

ODE —

IOLATIONS —

QUITABLE

EMEDIES

An affected party must challenge minor errors and irregularities under

the Drain Code by filing for a writ of certiorari in the circuit court

within 10 days after the final order of determination is issued;

however, certiorari is not the exclusive remedy under the Drain Code;

equity will provide a remedy when the drain commissioner acts

without jurisdiction and there is no adequate remedy at law (MCL

280.161).

Smith Bovill, P.C. (by David B. Meyer and Elian E. H.

Fichtner), for Elba Township, David Osborn, Mark

Crumbaugh, and Cloyd and Rita Cordray.

Fahey Schultz Burzych Rhodes, PLC (by Stacy L.

Hissong), and Clark Hill PLC (by Douglas R. Kelly and

Kristin B. Bellar) for the Gratiot County Drain Commis-

sioner.

312 294 M

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Before: M. J. K

ELLY

,P.J., and F

ITZGERALD

and W

HITBECK

JJ.

HITBECK

, J. Plaintiff, Elba Township, and interven-

ing plaintiffs, David Osborn, Mark Crumbaugh, Cloyd

Cordray, and Rita Cordray (the Osborn plaintiffs), ap-

peal as of right the March 8, 2011, order granting

summary disposition in favor of defendant, the Gratiot

County Drain Commissioner. Elba Township filed a

complaint against the Drain Commissioner, seeking to

enjoin the consolidation of 47 drainage districts within

Gratiot County because the petition for consolidation

lacked the requisite number of signatures. Elba Town-

ship, the Osborn plaintiffs, and the Drain Commis-

sioner moved for summary disposition. The circuit

court denied plaintiffs’ motion and granted summary

disposition in the Drain Commissioner’s favor. We re-

verse in part and affirm in part.

I. BASIC FACTS

A. PROJECT SCOPE

This appeal involves the consolidation of 47 drain

districts located in Gratiot County. On May 4, 2010, a

board of determination approved a project for the

consolidation and maintenance of the #181-0 Drain and

all the established tributary drains of the #181-0 Drain

located in Gratiot County. The drainage district bound-

aries for each of the established tributaries proposed to

be consolidated are located wholly within the #181-0

Drain Drainage District. The consolidation and main-

tenance project covers more than 30,000 acres of land

and more than 80 miles of drain, and spans six town-

ships and one village. The consolidated drain system is

known as the No. 181 Consolidated Drain.

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B. THE PETITIONS

In March 2009, Dennis Kellog filed with the Gratiot

County Drain Commission a petition that five freehold-

ers

from North Star Township signed. The petition

sought the consolidation, cleaning out, relocating, wid-

ening, deepening, straightening, tiling, extending, or

relocating along a highway for the “181-0 Drain and all

established tributary drains, located and established in

the Township of Northstar, Washington & Elba, in the

County of Gratiot, State of Michigan.” The #181-0

Drain petition further stated that the consolidation and

maintenance was needed “for the reason that flooding

and erosion problems are occurring” and that the

consolidation and maintenance “of the drains is neces-

sary and conducive to the public health and welfare of

the North Star, Washington & Elba Townships.”

Before receiving the #181-0 Drain petition, the Drain

Commissioner had received petitions for consolidation

and maintenance of two other drains, both of which are

established #181-0 Drain tributaries. Specifically, the

Drain Commissioner received petitions for the consoli-

dation, cleaning out, relocating, widening, deepening,

straightening, tiling, extending, or relocating along a

highway of the #135-0 Drain and the #156-0 Drain and

all established tributary drains. Also, after receiving the

#181-0 Drain petition, the Drain Commissioner re-

ceived a petition for the consolidation, cleaning out,

relocating, widening, deepening, straightening, tiling,

extending, or relocating along a highway of the #192-0

Drain and all established tributary drains. The #192-0

Drain is also an established #181-0 Drain tributary.

A freeholder is defined as, “[o]ne having title to realty; either of

inheritance or for life; either legal or equitable title.” Black’s Law

Dictionary (6th ed).

314 294 M

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C. THE SPICER STUDY

In response to the various petitions, the Drain Com-

missioner retained Spicer Group, Inc., to survey, in-

spect, and evaluate the drainage issues. The survey and

inspection revealed that the drains within the #181-0

Drain Drainage District had generally not been main-

tained for 30 years and had degraded to the point that

the drainage systems within the #181-0 Drain Drainage

District required repairs. The Spicer Group concluded

that maintenance of and improvements to the #181-0

Drain without additional maintenance and improve-

ments on the established tributary drains would not

provide an adequate solution to the drainage problems

that had been identified within the drainage district.

Therefore, it proposed a consolidation of the established

tributary drains within the #181-0 Drain Drainage

District. According to Spicer Group, consolidation of the

established tributary drains within the #181-0 Drain

Drainage District was the most cost- effective way to

address problems that had been identified within the

#181-0 Drain Drainage District.

D. THE BOARD OF DETERMINATION HEARING

On the basis of the Spicer Group’s recommendations,

the Drain Commissioner determined that the best and

most cost-effective way to address the issues raised in

the petitions was to design a project within the #181-0

Drain Drainage District, which necessarily included

consolidation of its tributary drains. The Drain Com-

missioner then appointed a board of determination to

hear evidence and determine whether the actions re-

quested in the #181-0 Drain petition were necessary

and conducive to the public health, convenience, or

welfare. The board of determination convened and held

a hearing on May 4, 2010.

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Before the May 4, 2010 hearing, all the municipalities

located within the #181-0 Drain Drainage District—the

townships of Elba, Fulton, Hamilton, Newark, North

Star, and Washington, and the village of Ashley—were

notified of the date and place of the board of determi-

nation meeting. Additionally, notice of the meeting was

sent to the individual property owners and published in

the Gratiot County Herald. The notice stated:

Notice Is Hereby Given to you as a person liable for an

assessment that the Board of Determination...will meet

on Tuesday, May 4, 2010 at 10:00 A.M., o’clock in the

forenoon, North Star Township Hall located at 2840 E.

Buchanan Road, North Star Township, Michigan to hear

all interested persons and evidence and to determine

whether the drain in Drainage District No. 181-10 Wolf &

Bear known as the #181-10 Wolf & Bear Drain, as prayed

for in the Petition for consolidating, cleaning out, relocat-

ing, widening, deepening, straightening, tiling, extending

or relocating along a highway, and all established tributary

drains, located and established in the Township(s) of Elba,

Sections 18 & 19, North Star Sections 25, 26, 27, 28, 29, 32

and 36, Washington, Sections 1, 12, 23 and 24, County of

Gratiot, State of Michigan. Petition further shows that...

said consolidating, clearing out, relocating, widening, deep-

ening, straightening, tiling, extending or relocating along a

highway of the drains is necessary and conducive to the

public health and welfare of Elba, North Star and Wash-

ington Township(s). Dated March 23, 2009... for the

protection of the public health of the following: Elba, North

Star and Washington Township(s).

***

You Are Further Notified, that persons aggrieved by the

decisions of the Board of Determination may seek judicial

review in the Circuit Court for the County of Gratiot

within ten (10) days of the determination.

[

]

Emphasis added.

316 294 M

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310 [Oct

During the board of determination hearing, the

Spicer Group provided the board and all attendees with

maps, diagrams, and plans that described the current

condition of the drains and the proposed consolidation

project. The board of determination approved the

project by a 2-1 margin. Following the meeting, an order

of necessity was prepared and filed in the Drain Com-

missioner’s office. The order provided that the board

had determined that the work set forth in the #181-0

Drain petition was necessary and conducive to the

public health, convenience, and welfare. The order

listed the “#181-10 drain and all established tributaries

located and established in the Township(s) of Elba,

Sections 18 & 19, North Star Sections 25, 26, 27, 28, 29,

32 and 36, Washington, Sections 1, 12, 23 and 24,

County of Gratiot, State of Michigan.”

E. THE ASSESSMENTS

In September 2010, the Drain Commissioner sent out

notifications of at-large assessments to the townships of

Elba, Fulton, Hamilton, Newark, North Star, and Wash-

ington, and the village of Ashley. According to the Drain

Commissioner, after the notices of assessments were

mailed, the Drain Commissioner determined that add-

ing more land to the drainage district might be neces-

sary, and, accordingly, in November 2010, the Drain

Commissioner issued a notice of reconvened board of

determination. Included in the notice was a list of the

47 drains consolidated at the May 4, 2010 hearing

“known as the No. 181 Consolidated Drain in the

Townships of Elba, Fulton, Hamilton, Newark, North

Star and Washington....” The notice provided that

the reconvened hearing would be held on November 11,

2010, to determine the necessity of adding lands to the

No. 181 Consolidated Drain. The Drain Commissioner

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sent the notice of the reconvened hearing to all the

municipalities and individual property owners within

the drainage district.

F. THE SECOND BOARD OF DETERMINATION HEARING

At the November 11, 2010, hearing, the attendees

were told that the purpose of the hearing was to add an

additional 700 acres of land to the No. 181 Consolidated

Drain project. The reconvened board of determination

approved the addition and a revised order of necessity

was issued that same day. The revised order identified

the 47 drains previously consolidated at the May 4,

2010, hearing. The revised order further stated that it

had been determined that “it is necessary and conduc-

tive to the public health [and] convenience or welfare to

add lands to the Consolidated Drain No. 181 as specified

by the Board of Determination.”

G. THE FINAL ORDER OF DETERMINATION

On December 22, 2010, the Drain Commissioner

issued a final order of determination. The order of

determination listed and described all the drains to be

consolidated into the No. 181 Consolidated Drain.

H. COURT PROCEEDINGS

On November 8, 2010 (before the reconvened board of

determination hearing), Elba Township filed a complaint

against the Drain Commissioner. Elba Township alleged

that the Drain Commissioner’s actions—consolidating the

#181-0 Drain Drainage District’s established tributary

drains—violated the Drain Code.

Specifically, Elba

Township alleged that the Drain Commissioner was

MCL 280.1 et seq.

318 294 M

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310 [Oct

required to reject the #181-0 Drain petition because it

did not have enough signatures. According to Elba

Township, MCL 280.441 requires that at least 50 free-

holders sign a petition for consolidation, but only five

freeholders actually signed the #181-0 Drain petition.

Additionally, Elba Township stated that the notice of

the May 4, 2010, board of determination hearing was

deficient because it failed to refer properly to the

districts affected by the proposed consolidation. Elba

Township requested that the circuit court enjoin the

Drain Commissioner from proceeding with the pro-

posed consolidation and requested a preliminary injunc-

tion until the court could hold a full trial on the merits.

The circuit court held a hearing on Elba Township’s

motion for a preliminary injunction in mid-December

2010. At the hearing, the circuit court declined to grant

Elba Township’s motion for a preliminary injunction

concluding that as the dispute involved only legal

issues, it could be resolved through a motion for sum-

mary disposition. The circuit court signed a written

order denying Elba Township’s motion for a prelimi-

nary injunction in early January 2011.

Thereafter, the Drain Commissioner filed a motion

for summary disposition, arguing that MCL 280.441 did

not apply. Rather, the Drain Commissioner argued,

MCL 280.191 and MCL 280.194 applied and, when

reading those sections together, only five signatures

were required. With respect to notice, the Drain Com-

missioner argued that MCL 280.72 only requires that

notice be given to the public of the date, time, and place

of the board of determination meeting and that such

notice was provided.

In mid-January 2011, the Osborn plaintiffs moved to

intervene as of right. The Osborn plaintiffs also filed a

complaint alleging that by not giving them notice that

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their property was subject to the No. 181 Consolidated

Drain project, the Drain Commissioner had violated the

Drain Code and their due process rights. In early

February 2011, the circuit court granted the Osborn

plaintiffs’ motion to intervene.

The Drain Commissioner then moved for summary

disposition of the Osborn plaintiffs’ claims. The Drain

Commissioner argued that the circuit court must dis-

miss the Osborn plaintiffs’ claims because the Drain

Commissioner had complied with the Drain Code. Ad-

ditionally, the Drain Commissioner argued that the May

4, 2010, notice of the No. 181 Consolidated Drain

project did not violate the Drain Code or the Osborn

plaintiffs’ due process rights.

Elba Township and the Osborn plaintiffs opposed the

Drain Commissioner’s motions for summary disposi-

tion and filed a cross-motion for summary disposition in

their favor. The circuit court held a hearing on the

motions for summary disposition in early March 2011.

After hearing the parties’ arguments, the circuit court

granted the Drain Commissioner’s motions for sum-

mary disposition. Elba Township and the Osborn plain-

tiffs now appeal.

II. THE DRAIN PETITIONS

A. STANDARD OF REVIEW

We review de novo a trial court’s decision to grant or

deny a motion for summary disposition.

We also review de

novo as a question of law the interpretation of a statute.

Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868

(2008).

Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221

(2008).

320 294 M

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“ ‘Proceedings under the [D]rain [C]ode, other than

condemnation proceedings, are administrative proceed-

ings.’ ”

The circuit court reviews “ ‘[a]n administrative

agency decision...todetermine whether the decision was

authorized by law and supported by competent, material,

and substantial evidence on the whole record.’ ”

Addi-

tionally, the Michigan Supreme Court has explained that

it is “not inclined to reverse proceedings taken under the

general drain law absent showing of very substantial

faults.”

B. OVERVIEW

The circuit court erred when it determined only five

signatures were required for the #181-0 Drain petition.

As we noted above, that petition provided: “Petitioners

hereby petition for consolidation, cleaning out, relocating,

widening, deepening, straightening, tiling, extending or

relocating along a highway of the following drains: #181-0

Drain and all established tributary drains, located and

established in the Township of North Star, Washington &

Elba, in the County of Gratiot, State of Michigan.” The

circuit court concluded that the petition was governed

under MCL 280.191 and MCL 280.194 and that MCL

280.441 was inapplicable. This conclusion was erroneous.

C. STATUTORY PROVISIONS

1. MCL

280.191

Contained within chapter 8 of the Drain Code is MCL

Barak v Oakland Co Drain Comm’r, 246 Mich App 591, 597; 633

NW2d 489 (2001) (citation omitted).

Id., quoting Mich Ed Ass’n Political Action Comm, 241 Mich App 432,

443-444; 616 NW2d 234 (2000), citing Const 1963, art 6, § 28 and Ansell v

Dep’t of Commerce (On Remand), 222 Mich App 347, 354; 564 NW2d 519

(1997).

In re Fitch Drain No 129, 346 Mich 639, 647; 78 NW2d 600 (1956).

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280.191, which addresses maintenance and improve-

ment of county drains. It provides in relevant part:

When a drain or portion thereof, which traverses lands

wholly in 1 county, and lands only in 1 county which is

subject to assessment, needs cleaning out, relocating, wid-

ening, deepening, straightening, tiling, extending, or relo-

cating along a highway,...any 5 or at least 50% of the

freeholders if there are less than 5 freeholders whose lands

shall be liable to an assessment for benefits of such work,

may make petition in writing to the commissioner setting

forth the necessity of the proposed work....

[

]

Notably absent from MCL 280.191 is the word “consoli-

dation.”

2. MCL 280.441

Chapter 19 of the Drain Code addresses consolidation

of drainage districts under MCL 280.441, which pro-

vides in relevant part:

Two or more drainage districts located in the same

county and in the same drainage basin or in adjoining

basins, may consolidate and organize as a single drainage

district upon the filing of a petition for consolidation with

the drain commissioner of the county setting forth the

reason for the proposed consolidation. The consolidation

may include land not within an existing drainage district if

requested in the petition. The petition shall be signed by at

least 50 property owners within the proposed consolidated

drainage district.

[

]

3. MCL 280.194

MCL 280.194, however, is the section of the Drain

Code that has caused the confusion in this case. Section

MCL 280.191.

MCL 280.441(1).

322 294 M

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310 [Oct

194 deals with the petitions and proceedings for main-

tenance, improvements, and consolidation and pro-

vides:

In any petition filed under this chapter it shall not be

necessary for the petitioners to describe said drain other

than by its name or to describe its commencement, general

route and terminus. For any work necessary to be done in

cleaning out, widening, deepening, straightening, consoli-

dating, extending, relocating, tiling or relocating along a

highway,...andforanyandallsuch proceedings, only 1

petition and proceeding shall be necessary.

[

]

D. INTERPRETING THE PROVISIONS OF THE DRAIN CODE

The Drain Commissioner argues that MCL 280.194

allows the use of only one petition when petitioning for

maintenance, improvements, and consolidations of ex-

isting drains. Therefore, he contends, the petition re-

quirements of MCL 280.191 apply to the #181-0 Drain

and only five signatures were needed. This argument,

however, ignores the basic principles of statutory inter-

pretation. When construing a statute, courts must read

the provisions in the context of the entire statute, and

the courts should avoid any construction that would

render any part of a statute surplusage or nugatory.

MCL 280.194 does not act to negate the signature

requirements of MCL 280.441. Instead, MCL 280.194

recognizes that improvement and maintenance of

drains is often ancillary to consolidation projects.

Therefore, MCL 280.194 authorizes the use of one

petition and one proceeding when maintenance, im-

provements, and consolidation are being requested.

Otherwise, at least two petitions and two board of

determination proceedings would be required.

MCL 280.194 (emphasis added).

Robinson v City of Lansing, 486 Mich 1, 21; 782 NW2d 171 (2010).

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However, the use of a single petition does not

change the end result, which is both consolidation

and improvements. And if two separate petitions had

in fact been made—one for improvements and one for

consolidation—no one would have questioned the

need for 50 signatures on the petition for consolida-

tion. Therefore, the requirements of MCL 280.191

and MCL 280.441 each apply. Otherwise, the signa-

ture requirements of MCL 280.441 would have no

effect whenever a person petitions for both mainte-

nance and consolidation of a drain. Given that MCL

280.441 contains a significantly more onerous signa-

ture requirement, thus indicating the Legislature’s

intention that it should be harder to initiate a con-

solidation proceeding than a proceeding for mainte-

nance, such a result is incongruous. Had the Legisla-

ture intended this result under MCL 280.441, it could

have easily referred to the signature requirements in

MCL 280.191. Manifestly, however, it did not.

Further, the Drain Commissioner’s argument would

essentially read the word “consolidation” into MCL

280.191. However, we must presume that the omission

of the word “consolidation” in MCL 280.191, and its

inclusion in MCL 280.441, was intentional.

It was also

logical to omit the word “consolidation” in MCL

280.191 because consolidation of drainage districts has

the potential to affect a much larger segment of the

population than maintenance and improvements to

existing drains.

In determining that MCL 280.191 applied, the circuit

court relied, in part, on its mistaken conclusion that

MCL 280.191 and MCL 280.441 cannot be applied

together consistently. The circuit court stated in rel-

evant part:

See People v Monaco, 474 Mich 48, 58; 710 NW2d 46 (2006).

324 294 M

ICH

310 [Oct

What kind of proceeding is necessary under section 194,

is it a section 191 proceeding or is it a section 441

proceeding? The answer to that question has got to be, it’s

a section 191 proceeding.

And what’s the important difference? Two of them.

First, how many signatures do we have to have on the

petition—191 says five signatures, 441 says 50 signa-

tures to consolidate. But just as importantly, who sits on

the board of determination depends upon whether you’re

working under section 191 to improve a drain, or under

section 441 to consolidate drains. Because if we’re work-

ing to improve a drain under section 191, then the people

who sit on the board have to be subject to an assessment

for the improvements. We have to have five people who

are going to have to share in paying the bill, petition to

improve a drain. But under section 441, the people on

the board of determination of necessity of consolidating

drains can’t live in the consolidated districts, they have

to live in the county, but not in the districts, therefore,

they have no direct interest in the outcome of the

request to consolidate and to create a consolidated

district.

You can’t have one proceeding under section 194 involv-

ing consolidation and improvements, unless you make a

decision as to whether or not that proceeding is governed

by section 191 with five signators in the district, or section

441 with 50 signators, and a board comprised of individuals

outside the district. And 194, it seems to me, resolves that

question in a way that, to me at least, is clear. There’s only

one petition needed, that petition has to be in accordance

with the requirements of 191. And there’s only one pro-

ceeding required, and that proceeding is governed by the

requirements of section 191.

Thus, the circuit court’s decision was based, in part,

on its understanding that the board of determination’s

composition would be different under MCL 280.191 and

280.441. The circuit court, however, misstated the law.

MCL 280.441(1) provides in part that “[a]s soon as

practicable after the filing of a petition, the drain

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commissioner...mayappoint a board of determination

composed of 3 disinterested property owners to deter-

mine the necessity of the consolidation.” MCL

280.441(1) further provides that “[m]embers of a board

of determination shall be residents of the county but

not of the proposed consolidated drainage district or of

a drainage district a part of which is to be included in

the proposed consolidation.”

MCL 280.191 does not specifically refer to the com-

position of the board of determination. However, it does

cross-reference MCL 280.72, which provides in relevant

part: “As soon as practicable after the filing of a

petition, the commissioner authorized to act on the

petition...mayappoint a board of determination com-

posed of 3 disinterested property owners.” MCL

280.72(1) goes on to state that “[m]embers of boards of

determination shall be residents of the county but not

of a township, city, or village affected by the drain, and

may not be members of the county board of commis-

sioners of the county.”

Therefore, the circuit court erred when it determined

that the composition of the board members was differ-

ent under each section. Rather, the two sections are

entirely consistent. In fact, MCL 280.441 and MCL

280.72 are consistent in almost every aspect. The only

inconsistency in applying MCL 280.441 and MCL

280.191 is the signature requirement.

The Drain Commissioner contends that this

Court’s decision in Kramer v Dearborn Hts supports

his position.

Kramer, however, dealt with chapters

19 and 20 of the Drain Code, not chapter 8. In

Kramer, the plaintiffs challenged the consolidation of

several drainage districts, arguing that consolidation

Kramer v Dearborn Hts, 197 Mich App 723; 496 NW2d 301 (1992).

326 294 M

ICH

310 [Oct

should have been sought under chapter 19 of the

Drain Code not chapter 20.

This Court found no

merit in the plaintiffs’ claim because chapter 20

provided a basis for the consolidation. This Court

recognized that MCL 280.486 provides that a petition

for consolidation is sufficient if only the city signed

it.

Further, MCL 280.484 specifically provides that

“[i]n operating under the terms of [chapter 20], the

several boards and officials shall not be limited by the

provisions contained in other chapters of this

act....”Chapter 8, however, contains no provisions

allowing the Drain Commissioner to disregard the

signature requirements contained in MCL 280.441.

Therefore, Kramer is simply inapplicable to this case.

The Drain Commissioner’s reliance on a Michigan

Attorney General opinion

to support his argument is

also unpersuasive. In his opinion, the Attorney General

addressed whether it was “legally permissible under the

present drain law to consolidate into one petition a

petition for consolidation of drains and also a petition

for the cleaning out, relocating, widening, etc. of said

drains.”

The Attorney General concluded “that the

procedure for consolidation and improvement work on

the drain are the same in relation to both county and

inter-county drains.”

The Attorney General stated

that “[i]t seems to follow that a petition to consolidate

and to clean out, widen, deepen, straighten or extend

may be combined....”

Id. at 727.

Id.

1 OAG, 1955, No 2314, p 600 (November 3, 1955).

Id.

Id. at 601.

Id.

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Relying on this opinion, the Drain Commissioner

asserts that a single petition may implement all the

actions contemplated in MCL 280.194, including con-

solidation. The Attorney General opinion, however,

interpreted a prior version of the Drain Code. In 1955,

at the time of the opinion, MCL 265.16 as amended by

1955 PA 44, provided that

[a]ny 2 or more drainage districts...maybeconsolidated

and organized as a single drainage district upon the filing

of a petition therefor, which petition and proceed-

ings...shall be subject to the same provisions relating to

petitions contained in [MCL 267.1]....

Former MCL 267.1 (now MCL 280.191) provided that

only five freeholders were required to sign a petition for

maintenance and improvements. Therefore, at the time

of the Attorney General opinion, the signature require-

ments were the same for maintenance, improvements,

and consolidation. That is no longer the case. Since the

Attorney General opinion was written in 1955, former

MCL 265.16 has been amended six times into its cur-

rent version, MCL 280.441, which now requires 50

signatures. Therefore, the Attorney General Opinion

does not apply to this case.

In sum, the Drain Code requires 50 signatures for the

#181-0 Drain petition. MCL 280.194 allows the use of a

single petition and proceeding “[f]or any work neces-

sary to be done in cleaning out, widening, deepening,

straightening, consolidating, extending, relocating, til-

ing or relocating along a highway....” However, the

50-signature requirement of MCL 280.441 still applies

to a combined petition. Therefore, the #181-0 Drain

petition was invalid, and the Drain Commissioner was

without authority to act upon it.

See Grand Rapids&IRCovRound, 220 Mich 475, 478-479; 190

NW 248 (1922).

328 294 M

ICH

310 [Oct

III. NOTICE

A. STANDARD OF REVIEW

We review de novo a trial court’s decision to grant or

deny a motion for summary disposition.

We also re-

view de novo as a question of law the determination

whether a party has been afforded due process.

B. LEGAL REQUIREMENTS

Generally, due process requires notice of the nature

of the proceedings and an opportunity to be heard in a

meaningful time and manner.

Notice must be reason-

ably calculated to apprise interested parties of the

pendency of the action and must afford them an oppor-

tunity to present objections.

“The kind of notice

required depends on the circumstances of the

case....”

C. DEFECTIVE NOTICE

The Osborn plaintiffs do not argue that they did not

receive notice. Rather, they argue that the notice they

received was defective. We have found no caselaw

directly on point, but Alan v Wayne Co has some

persuasive value.

Alan dealt with the validity of sta-

dium bonds issued by Wayne County to finance a new

Latham, 480 Mich at 111.

Reed v Reed, 265 Mich App 131, 157; 693 NW2d 825 (2005).

Hinky Dinky Supermarket, Inc v Dep’t of Community Health, 261

Mich App 604, 606; 683 NW2d 759 (2004).

Dusenbery v United States, 534 US 161, 168, 170; 122 S Ct 694; 151

L Ed 2d 597 (2002); In re Petition by Wayne Co Treasurer, 478 Mich 1, 9;

732 NW2d 458 (2007).

Alan v Wayne Co, 388 Mich 210, 351; 200 NW2d 628 (1972).

Id.

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stadium, which would eventually cost the county $371

million.

Among the many arguments heard by the

Michigan Supreme Court was the issue of notice and

whether the notice of intent to issue the bonds complied

with due process.

The Supreme Court determined that the notice was

“defective in substance because it fail[ed] to inform the

reader of its purpose and because it [was] misleading.”

The Court stated that “[t]he purpose of the notice is to

create and determine a method of objecting to a bond

issue by petitioning for a vote.”

The Court further

explained:

To comport with due process any notice respecting

petition rights on bonds supported by any pledge of tax

power must state to whom the notice is issued and for what

purpose: (a) it must tell, in this case, the electors and

taxpayers of Wayne County that it is issued for their

benefit; (b) it must contain enough information so that it

can be told from its face in plain and understandable

language that the notice concerns some particular right or

obligation respecting the subject matter of the notice; (c)

the notice must explain the nature of the right (or obliga-

tion) and what is required to exercise it and the conse-

quence of not exercising it; (d) regarding the subject matter

of the notice there must be enough information so that a

meaningfully informed decision respecting the right can

reasonably be made from information supplied in plain

language on the face of the notice.

[

]

After review of the notice, the Court noted that the

notice of intent failed to tell the taxpayer (1) what a

revenue bond was, (2) how much the stadium would

Id. at 233.

Id. at 344.

Id. at 351.

Id.

Id. at 352.

330 294 M

ICH

310 [Oct

cost, (3) how the bonds would be paid, especially if the

stadium stood empty, and (4) why the notice was

given.

The Court in Alan concluded that the notice

was defective because the method used was not reason-

able under the circumstances.

The notice was also

defective because it failed to inform the reader of the

bond’s purpose in order to allow the taxpayers a method

of objecting to a bond issue by petitioning for a vote.

The Court further determined that it was misleading

because it failed to inform taxpayers that the bonds

could result in higher taxes.

Therefore, the Court

concluded, the bonds were invalid because there was no

valid notice.

Although Alan does not deal with drain assessments,

we can apply its general principles to this case. The

notice here was not as vague or defective as that in

Alan. The notice here provided the date, time, and place

of the board of determination hearing as MCL 280.72(2)

and MCL 280.441(2) require. It also explained that the

purpose of the board of determination hearing was to

hear all interested parties and take evidence regarding

improvements, maintenance, and consolidation of the

“#181-10 Wolf & Bear Drain.” The notice further

provided that persons feeling aggrieved by the decision

could seek judicial review within 10 days of the deter-

mination.

However, the notice was misleading. In Alan, the

Supreme Court stated that “there must be enough

information so that a meaningfully informed decision

respecting the right can reasonably be made from

information supplied in plain language on the face of

Id. at 341-342.

Id. at 350-351.

Id. at 352.

Id. at 354.

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the notice.”

“As phrased it must not make any mis-

leading or untrue statement; or fail to explain, or omit

any fact which would be important to the taxpayer or

elector in deciding to exercise his right. In short, the

notice may not be misleading under all the circum-

stances.”

While, the notice provided only a very gen-

eral description of the activities sought to be conducted,

it provided a specific description of the area where the

work would be done. The notice stated that the hearing

would be to determine the necessity of

consolidating, cleaning out, relocating, widening, deepen-

ing, straightening, tiling, extending or relocating along a

highway, and all established tributary drains, located and

established in the Township(s) of Elba, Sections 18 & 19,

North Star Sections 25, 26, 27, 28, 29, 32 and 36, Wash-

ington, Sections 1, 12, 23 and 24 ....”

[

]

This description was inaccurate because the project

actually involved all the districts contained within the

“#181-10 Wolf & Bear Drain” Drainage District. A

person not living within the specific sections of the

townships mentioned in the notice would not readily

understand that the project would affect his or her

property as well. Therefore, that person would be

unable to make a meaningful and informed decision

regarding his or her rights. Thus, we conclude, the

notice was misleading.

The Drain Commissioner, however, argues that the

intervening plaintiffs had a duty to inquire whether

their land would be affected. Specifically, the Drain

Commissioner argues that “[r]ecipients of notice have

an affirmative duty to inquire when the notice is

‘worded in a manner which would not mislead a tax-

Id. at 352.

Id. at 353.

Emphasis added.

332 294 M

ICH

310 [Oct

payer or voter in deciding how to respond to the notice

given.’ ” But the Drain Commissioner has failed to

provide any authority to support his argument that the

Osborn plaintiffs had an affirmative duty to inquire

whether their land was affected. Although the Drain

Commissioner quotes Trussell v Decker,

the quotation

is taken out of context.

In Trussell,

this Court held that a notice was

misleading. The notice stated that all objections and

comments to a proposed water project would be heard

at a public hearing. However, the notice failed to inform

the plaintiff that her objections had to be presented in

writing at or before the hearing in order to preserve her

rights. In holding that the notice was misleading, this

Court cited Alan, noting that “the Alan Court stressed

that a notice must be worded in a manner which would

not mislead a taxpayer or voter in deciding how to

respond to the notice given[.]”

Nowhere in the opin-

ion, however, did this Court state that a taxpayer has an

affirmative duty to inquire. Further, the Drain Commis-

sioner’s argument is a contradiction in and of itself. If a

notice is “worded in a manner which would not mislead

a taxpayer,” there would be no reason for the taxpayer

to inquire whether he or she was affected.

The Drain Commissioner’s reliance on Muskegon

Twp v Muskegon Co Drain Comm’r

is similarly unper-

suasive. The Drain Commissioner cites Muskegon Twp

for the proposition that the Osborn plaintiffs had a duty

to inquire into the details of the #181-0 Drain project if

they did not believe the notice was clear. But Muskegon

Trussell v Decker, 147 Mich App 312, 323; 382 NW2d 778 (1985).

Id. at 324-325.

Id. at 323.

Muskegon Twp v Muskegon Co Drain Comm’r, 76 Mich App 714; 257

NW2d 224 (1977).

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Twp did not discuss or address the issue of a notice of

a determination of necessity. Nor did it address the

issue of whether a notice was misleading. Instead, the

issue in Muskegon Twp was whether the Drain Code

was “unconstitutional in that it fails to require that

notice be given upon the filing of the board of

review’s report.”

The appellants had notice of the

board of review meeting, and “[n]o claim [was] made

that they were denied an opportunity to participate.”

Rather, they complained that they “did not officially

receive a notice of when the [board of review] report

was filed.”

This Court stated that “[a]lthough it would

be better for the statute to provide a specific time limit

for the filing of the report so that one would know

exactly when to check for the report, we do not find that

the burden of checking with the drain commissioner is

fatal.”

We do note that this case is somewhat analogous to

Thayer Lumber Co v City of Muskegon.

In Thayer

Lumber Co, the city of Muskegon adopted a resolution

creating and constructing a sewer district, which was to

be funded through a special assessment.

Notice of the

improvement was published in the newspaper. How-

ever, the notice failed to describe the boundaries of the

sewer district or the land that would be affected.

The

Supreme Court held that the notice was invalid and

stated:

Id. at 719.

Id.

Id. at 720.

Thayer Lumber Co v City of Muskegon, 152 Mich 59; 115 NW 957

(1908).

Id. at 61-62.

Id. at 62.

334 294 M

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310 [Oct

Where notice is required to be given, it is imperative

that such notice, when brought to the attention of any

person interested, shall apprise him at least of the approxi-

mate location of the proposed improvement and of the

property to be assessed therefor. This notice contained no

such information. From reading it no person could ascer-

tain in what part of the city the proposed sewers were to be

built, and much less whether or not his property was liable

to be assessed therefor.

[

]

This case presents the inverse of Thayer Lumber Co.

The Drain Commissioner sent notice to the individual

property owners. And the notice apprised the individual

property owners of the location of the proposed drain

project. However, the location of the project was erro-

neous. From reading the notice, no person living out-

side the sections specifically mentioned could have

ascertained whether his or her property was liable to be

assessed. Therefore, we conclude, the notice was mis-

leading.

IV. EQUITABLE JURISDICTION

A. STANDARD OF REVIEW

The Drain Commissioner raised the issue of jurisdic-

tion below, and the circuit court determined that it had

equitable jurisdiction to hear the claim. “Lack of juris-

diction of the subject matter may be raised at any time

and the parties to an action cannot confer jurisdiction

by their conduct or action nor can they waive the

defense by not raising it.”

We review de novo the

determination of whether a circuit court possesses

subject-matter jurisdiction.

To the extent this issue

Id. at 66-67.

Paulson v Secretary of State, 154 Mich App 626, 630-631; 398 NW2d

477 (1986).

People v Glass, 288 Mich App 399, 400; 794 NW2d 49 (2010).

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involves interpretation of the Drain Code, we also

review de novo legal issues concerning statutory inter-

pretation.

B. MCL 280.161

The Drain Commissioner argues that this suit was

barred because of Elba Township’s and the Osborn

plaintiffs’ failure to comply with the Drain Code’s

review procedures. The Drain Code provides several

limited avenues for judicial review, and the Drain Com-

missioner cites three provisions of the Drain Code that

provide review procedures and limitations periods for

drain challenges: MCL 280.72, MCL 280.72a, and MCL

280.161. MCL 280.72 and MCL 280.72a do not apply

because both sections deal with challenges to the order

of determination. Elba Township and the Osborn plain-

tiffs, however, are not challenging the finding of neces-

sity or the order of determination. Rather, they are

challenging the validity of the proceedings themselves.

Therefore, MCL 280.161 is applicable to this case and

provides as follows:

The proceedings in establishing any drain and levying

taxes therefor shall be subject to review on certiorari as

herein provided. A writ of certiorari for any error occurring

before or in the final order of determination shall be issued

within 10 days after a copy of such final order is filed in the

office of the drain commissioner.... If no certiorari be

brought within the time herein prescribed, the drain shall

be deemed to have been legally established, and the taxes

therefor legally levied, and the legality of said drain and the

taxes therefor shall not thereafter be questioned in any suit

at law or equity.... And if any error be found in the

proceedings, the court shall direct the commissioner to

correct such error or errors and then proceed the same as

though no error had been made.

Id.

336 294 M

ICH

310 [Oct

C. INTERPRETING THE STATUTE

Relying on MCL 280.161, the Drain Commissioner

argues that the circuit court lacked jurisdiction to hear

Elba Township’s and the Osborn plaintiffs’ claims. We

find the Drain Commissioner’s argument unpersuasive.

Early Supreme Court precedent recognized that certio-

rari is not the exclusive remedy under the Drain Code.

In Pere Marquette R Co v Auditor General,

the Su-

preme Court stated:

We are unable to accept the proposition that certiorari is

an exclusive remedy under the drain law, for this court has

held under certain circumstances that equity proceedings

to restrain the enforcement of a drain assessment may run

collaterally in aid of certiorari to review a drain commis-

sioner’s action (Drain Commissioner v. Baxter, 57 Mich

[127, 129; 23 NW 711 (1885)]), and that in a proper case

equity has jurisdiction to restrain the return of lands as

delinquent for drain taxes where the proceedings are illegal

and void.

[

]

Later, in Clinton v Spencer,

the Supreme Court held

that when irregularities rendered drain proceedings

void from their inception, so that they could not be

corrected on certiorari, the plaintiffs would not be

limited to certiorari.

Shortly thereafter, the Supreme Court decided Fuller

v Cockerill.

In Fuller, the plaintiffs had filed a suit in

equity to enjoin the Muskegon County Superintendent

of Drains from proceeding with the construction of a

sewer drain entirely within the village of Whitehall.

Pere Marquette R Co v Auditor General, 226 Mich 491, 494; 198 NW

199 (1924).

Id.

Clinton v Spencer, 250 Mich 135, 155-156; 229 NW 609 (1930).

Fuller v Cockerill, 257 Mich 35; 239 NW 293 (1932).

Id. at 35-36.

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The superintendent argued that the plaintiffs’ remedy

was in certiorari and that a court of equity lacked

jurisdiction.

The Supreme Court rejected this argu-

ment

and determined that defendants were without

authority to construct the sewer drain because the

drain was to be located completely within the village

limits.

Therefore, the superintendent was “wholly

without jurisdiction or authority to act, the proceeding

[was] void, and equity [had] power to restrain.”

The

Court stated that if the superintendent was “wholly

without authority to lay this drain, the ultimate result

of assessment of benefits and the collection from plain-

tiffs of the drain tax would be to deprive them of their

property without due process of any sort.”

In Lake Twp v Millar,

the Supreme Court reaf-

firmed its prior holdings that certiorari is not the

exclusive remedy under the Drain Code. The Court

explained that

a drain commissioner may not, by mere assumption of

authority, legally do that which he has no authority to do.

If, upon a petition to do what he has a right to do, he may

do what he has no right to do, the extent of his authority is

measured by his own acts and conduct and not by law. The

extent of the authority of the people’s public agents is

measured by the statute from which they derive their

authority, not by their own acts and assumption of author-

ity. The rule is that errors and irregularities in drain

proceedings must be taken advantage of by certiorari, but

an entire want of jurisdiction may be taken advantage of at

any time. The drain commissioner had no jurisdiction to

Id.

Id. at 38-39.

Id. at 37-38.

Id. at 39.

Id.

Lake Twp v Millar, 257 Mich 135, 141-142; 241 NW 237 (1932).

338 294 M

ICH

310 [Oct

construct a sewer any more than to construct a Covert

road. No one will contend that if the drain commissioner,

when the petition for a drain was filed with him, had laid

out an assessment district, established and constructed a

Covert road, the plaintiffs would have been without rem-

edy. The same legal question is here presented. The pro-

ceedings are void for want of jurisdiction. The decree of the

trial court is reversed, and decree will be entered for

plaintiffs.

[

]

Twenty years later, the Supreme Court in Patrick v

Shiawassee Co Drain Comm’r

again reaffirmed this

precedent. The Court addressed the issue of whether

the drain commissioner was allowed to enlarge a drain

“beyond the determination of the board of determina-

tion[.]”

The Court stated:

In the case at bar [the drain commissioner’s] authority

was limited to cleaning out the drain to its original depth as

authorized by the board of determination. He had no legal

right to deepen or widen the drain or use plaintiffs’ lands

without condemnation of the same. Under the circum-

stances of this case it clearly appears that certiorari was

not an adequate remedy. It follows that plaintiffs had a

right to resort to chancery to restrain defendant from

enlarging the drain or taking plaintiffs’ lands without

condemnation thereof.

[

]

Thus, certiorari is not the exclusive remedy under

the Drain Code. Although minor errors and irregulari-

ties must be challenged by means of certiorari, equity

will still provide a remedy when the drain commissioner

acts without jurisdiction and there is no adequate

remedy at law. A plain reading of MCL 280.161 supports

Id. at 141-142.

Patrick v Shiawassee Co Drain Comm’r, 342 Mich 257; 69 NW2d 727

(1955).

Id. at 263.

Id. at 264.

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such a conclusion. Section 161 provides in relevant part:

“And if any error be found in the proceedings, the court

shall direct the commissioner to correct such error or

errors and then proceed the same as though no error

had been made.”

When an error is so substantial that

a drain commissioner cannot correct it, certiorari is an

inadequate remedy. Therefore, equity must provide

relief.

We note that, although these cases dealt with prior

versions of the Drain Code, the procedures and limita-

tions periods for certiorari were the same as they are

now.

Further, this Court reaffirmed these principles in

Emerick v Saginaw Twp and Blakely Drain Improve-

ments Drainage Dist v City of Woodhaven.

In Emerick,

this Court interpreted a different provision of the Drain

Code, MCL 280.483, which provides as follows:

Neither the final order of determination nor the final

order of apportionment shall be subject to attack in any court,

except by proceedings in certiorari brought within 20 days

after the filing of such order in the office of the chairman of

the board issuing the same. If no such proceeding shall be

brought within the time above prescribed, the drain shall be

deemed to have been legally established and the legality of the

drain and the assessments therefor shall not thereafter be

questioned in any suit at law or in equity, either on jurisdic-

tional or nonjurisdictional grounds.

This Court noted that “mere irregularities in the pro-

ceedings were to be settled under the statute.”

How-

ever, it stated that there are two exceptions to the Drain

MCL 280.161 (emphasis added).

See 1923 PA 316; 1929 CL 4902; 1931 PA 318, and 1948 CL 266.11.

Emerick v Saginaw Twp, 104 Mich App 243, 247; 304 NW2d 536

(1981), and Blakely Drain Improvements Drainage Dist v City of

Woodhaven, 112 Mich App 675; 317 NW2d 220 (1982).

Emerick, 104 Mich App at 247, citing Patrick, 342 Mich 257, and

Kinner v Spencer, 257 Mich 142; 241 NW 240 (1932).

340 294 M

ICH

310 [Oct

Code’s plain language: fraud and lack of jurisdiction. If

either fraud or an entire lack of jurisdiction are properly

pleaded, then equity will allow a plaintiff to bring suit.

In Woodhaven, this Court again recognized that

certiorari is not the exclusive remedy under the Drain

Code. This Court relied on Emerick and stated: “ ‘An

exception to the plain language of the Drain Code has

grown up in Michigan under prior statutory language

for cases where fraud is alleged and properly pled. An

entire lack of jurisdiction could be challenged in a

similar fashion.’ ”

From this precedent, we conclude that the circuit court

properly exercised equitable jurisdiction. Although the

Drain Commissioner argues that Elba Township and the

Osborn plaintiffs complained of mere technical defects in

the proceedings, this argument is unpersuasive. Elba

Township and the Osborn plaintiffs are not alleging mere

technicalities. Rather, they are challenging the Drain

Commissioner’s authority to act on the #181-0 Drain

petition. As discussed, a petition for consolidation requires

50 signatures.

The #181-0 Drain petition only con-

tained five signatures. This is not the type of error that

the Drain Commissioner can correct. Without the requi-

site number of signatures attached to the #181-0 Drain

petition, the Drain Commissioner had no authority or

jurisdiction to act, and the proceedings establishing

the No. 181 Consolidated Drainage District were

void.

Certiorari was not the only remedy under the

Emerick, 104 Mich App at 247.

Woodhaven, 112 Mich App at 684, quoting Emerick, 104 Mich App at

247.

MCL 280.441(1).

See Grand Rapids&IRCo, 220 Mich at 479 (holding that an

application for the cleaning out of a drain was insufficient on its face to

confer jurisdiction on the drain commissioner because it failed to show

that the signers were freeholders liable for the assessment for benefits).

2011] E

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Drain Code, and the circuit court properly exercised

equitable jurisdiction.

We reverse in part and affirm in part. No costs, a

public question being involved and no party having

prevailed in full.

M. J. K

ELLY

,P.J., and F

ITZGERALD

, J., concurred with

HITBECK

,J.

342 294 M

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310 [Oct

SNEAD v JOHN CARLO, INC

SNEAD v DEPARTMENT OF TRANSPORTATION

Docket No. 298575. Submitted September 14, 2011, at Detroit. Decided

October 18, 2011, at 9:10 a.m.

Tracy Snead brought an action in the Macomb Circuit Court against

John Carlo, Inc., seeking damages for personal injuries and

property damage sustained when she drove her vehicle into a large

construction hole located in the roadbed of a highway exit lane.

She claimed that Carlo negligently maintained the construction

site. Snead amended her complaint to add a claim for personal

protection insurance benefits against State Farm Insurance Com-

pany, the insurer of her vehicle. Snead also initiated a separate suit

in the Court of Claims against the Michigan Department of

Transportation (MDOT), alleging, in part, negligence for having

barricaded the construction hole in a defective, unsafe, and con-

fusing manner. A stipulated order for joinder was entered pursu-

ant to which the Court of Claims ordered the joinder of the two

actions and assigned the joined cases to the Macomb Circuit Court,

with the circuit court having concurrent jurisdiction and sitting as

the Court of Claims. The Court of Claims, Richard L. Caretti, J.,

determined that, under the totality of the circumstances, it was

not clear that the area had been in fact closed to traffic and,

therefore, it was not clear that MDOT’s duty to maintain the

highway under MCL 691.1402(1) had been suspended during the

construction activities. The court held that Snead could pursue her

claim under the highway exception to governmental immunity

contained in the statute. The court then denied MDOT’s motion

for summary disposition and granted partial summary disposition

in favor of Snead with regard to the applicability of the highway

exception to governmental immunity. MDOT appealed.

The Court of Appeals held:

1. The statutory duty to maintain a highway creates a duty

with respect to the traveled portion, paved or unpaved, of the

roadbed actually designed for vehicular travel by the public. If the

condition is not located in the actual roadbed designed for vehicu-

lar travel, the narrowly drawn highway exception is inapplicable

and liability does not attach. Allegations concerning a lack of

2011] S

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ARLO

343

warning and traffic-control devices, or allegations of design de-

fects, do not by themselves implicate the highway exception and

the government’s duty to repair and maintain a highway.

2. The condition or hazard that must be examined in this case

is the construction hole in the exit lane, which proximately caused

the accident and any resulting damages. The roadbed of the exit

lane is indisputably part of the improved portion of the highway

designed for vehicular travel. Therefore, if the exit lane was

effectively open for public travel and not closed as reflected by

traffic-control devices, MDOT’s duty to keep the exit lane reason-

ably safe for public travel would be implicated.

3. The construction activities, in and of themselves, do not

support a conclusion that the exit lane was closed. The appropriate

test for determining whether a road is open for public travel is

whether a reasonable motorist, under all the circumstances, would

believe that the road was open for travel. It would be nonsensical

to conclude that a road was closed for public travel in circum-

stances in which a motorist had no notice that construction

activities precluded the safe use of the road, making evasive action

difficult or impossible.

4. The issue concerning traffic-control devices cannot be con-

sidered in isolation; rather, it affects the questions whether the

exit lane was open for public travel and whether MDOT was

negligent, both of which questions relate to the construction hole

in the roadbed that was the direct proximate cause of the accident.

5. The duty to keep a highway in reasonable repair is sus-

pended when the highway is effectively closed by authorities, while

the duty is still owed if the highway, despite undergoing construc-

tion, is not properly closed to the public.

6. A genuine issue of material fact exists with respect to

whether the exit lane was effectively open for public travel at the

time of the accident, as based on the observations of a reasonable

motorist driving down the highway at the time. The trial court

erred by granting partial summary disposition in favor of Snead on

the basis that the highway exception applied as a matter of law.

The applicability of the highway exception on remand will be

dependent on the trier of fact’s finding regarding whether the exit

lane was closed or open for public travel. The part of the trial

court’s order that denied MDOT’s motion for summary disposition

is affirmed, the part of the order granting partial summary

disposition in favor of Snead with respect to the applicability of the

highway exception to governmental immunity is reversed, and the

matter is remanded to the trial court for further proceedings

consistent with the opinion of the Court of Appeals.

344 294 M

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343 [Oct

Affirmed in part, reversed in part, and remanded.

ALBOT

, J., concurring, wrote separately to state that, while he

concurs in the majority’s ultimate ruling, it is unnecessary to

suggest the existence of a new rule of law or test to reach this

correct result. The trial court correctly identified that the primary

issue is whether MDOT had closed the subject area of the highway.

This determination simply comprises a question of fact and does

not necessitate the construction or imposition of a reasonable-

person test. The question whether the roadway was open or closed

comprised a factual determination for the trier of fact.

1. G

OVERNMENTAL

MMUNITY —

IGHWAY

XCEPTION —

RAFFIC

-C

ONTROL

E-

VICES —

ESIGN

EFECTS

Allegations concerning a lack of warning and traffic-control devices

or allegations of design defects do not by themselves implicate the

highway exception to governmental immunity and the govern-

ment’s duty to repair and maintain a highway within its jurisdic-

tion (MCL 691.1402[1]).

2. G

OVERNMENTAL

MMUNITY —

IGHWAY

XCEPTION —

PEN FOR

UBLIC

RAVEL

The appropriate test for determining whether a highway is open for

public travel for purposes of the highway exception to governmen-

tal immunity is whether under all the circumstances a reasonable

motorist traveling along the pertinent section of highway would

believe that the highway was open for travel (MCL 691.1402[1]).

3. G

OVERNMENTAL

MMUNITY —

IGHWAY

XCEPTION —

IGHWAY

MPROVEMENT

AND

EPAIR

A governmental agency’s duty to keep a highway under its jurisdic-

tion in reasonable repair is suspended when the highway is

effectively closed by authorities; the duty is still owed if the

highway, despite undergoing construction, is not properly closed to

the public (MCL 691.1402[1]).

Daniel J. Flaggman and Eric D. Geller for Tracy

Snead.

Ogne, Alberts & Stuart, P.C. (by Dennis D. Alberts,

Special Assistant Attorney General), for the Depart-

ment of Transportation.

Before: M

URPHY

, C.J., and F

ITZGERALD

and T

ALBOT

,JJ.

2011] S

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345

URPHY

, C.J. Defendant Michigan Department of

Transportation (MDOT) appeals the Court of Claims’

order that denied its motion for summary disposition

while granting partial summary disposition in favor of

plaintiff with respect to the applicability of the highway

exception to governmental immunity. This case arose

out of a motor vehicle accident in which plaintiff drove

her car into a large construction hole located in the

roadbed of a highway exit lane, allegedly as a result of

confusing and inadequate traffic-control devices. We

conclude that the relevant condition or hazard for

purposes of determining the applicability of the high-

way exception was the construction hole itself, which

proximately caused the accident and any resulting

damages. Furthermore, we find, as a matter of law, that

the exit lane’s roadbed where the construction hole was

located constituted an improved portion of the highway

and that the exit lane had been designed for vehicular

traffic. We also conclude that a genuine issue of mate-

rial fact exists regarding whether the exit lane was

closed or effectively remained open for public travel at

the time of the accident, as gleaned by a reasonable

motorist traveling along the pertinent section of high-

way. Accordingly, we affirm the trial court’s ruling that

denied MDOT’s motion for summary disposition but we

reverse the court’s determination that plaintiff was

entitled to partial summary disposition with respect to

the applicability of the highway exception to govern-

mental immunity.

I. FACTUAL AND PROCEDURAL HISTORY

In the early morning hours of April 21, 2007, plaintiff

was operating her motor vehicle on eastbound I-94

when she entered the exit lane for westbound M-59/Hall

Road and soon struck a large, unprotected construction

346 294 M

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343 [Oct

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hole in the roadbed of the exit lane.

In January 2009,

plaintiff initially filed suit in the Macomb Circuit Court

solely against defendant John Carlo, Inc. (hereafter

Carlo). Plaintiff alleged that Carlo was hired and del-

egated the task of construction and that Carlo was

responsible for maintaining safe conditions at the con-

struction site and for keeping the site reasonably safe

and convenient for public travel. She contended that

Carlo was negligent because it failed to properly and

adequately maintain the construction site, failed to

adequately design the site to allow for safe use of the

exit lane, failed to adequately warn the public of the

hazardous condition, failed to use reasonable care to

make the site reasonably safe for foreseeable use by

motorists attempting to exit the highway, erected un-

safe and inadequate barricades, and failed to properly

barricade the exit lane, thereby allowing traffic to enter

what should have been a closed exit. Plaintiff main-

tained that she suffered a litany of injuries and incurred

damages as a proximate result of Carlo’s negligence.

A couple of weeks after filing the complaint, plaintiff

filed a first amended complaint in the Macomb Circuit

Court that retained the negligence claim against Carlo

and added a first-party claim for personal protection

insurance (PIP) benefits against defendant State Farm

Insurance Company (hereafter State Farm), which was

plaintiff’s auto insurer.

In February 2009, plaintiff initiated a separate suit

against MDOT in the Court of Claims, alleging negli-

The exit was actually comprised of three lanes of travel, at times

referred to as “flare” lanes by the parties and the police, which trans-

ported motorists off the main highway. To avoid confusion and simplify

matters, we shall refer to the roadway where the hole was located as the

“exit lane” in the singular.

The claims against Carlo and State Farm are not at issue in this

appeal.

2011] S

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gence by MDOT for having barricaded the construction

hole in a defective, unsafe, and confusing manner.

Plaintiff claimed that the construction site was improp-

erly and negligently constructed and maintained by

MDOT, creating a point of hazard or special danger that

uniquely affected vehicular traffic on the improved

portion of the roadway to the extent that travel was

rendered unsafe. Plaintiff additionally set forth allega-

tions of negligence similar to those made against Carlo,

along with a claim that MDOT negligently hired and

failed to properly supervise Carlo.

In April 2009, a stipulated order for joinder was

entered pursuant to which the Court of Claims, under

MCL 600.6421,

ordered the joinder of the two actions

and assigned the joined cases to the Macomb Circuit

Court, with the circuit court “having concurrent juris-

diction and sitting as the Court of Claims.”

In March 2010, MDOT filed a motion for summary

disposition, arguing that plaintiff drove on the wrong

side of orange construction barrels and into a portion of

the road under construction. MDOT maintained that

the construction activities clearly and undeniably en-

tailed the exercise and discharge of a governmental

function; therefore, it was immune from tort liability

under the governmental tort liability act (GTLA), MCL

691.1401 et seq., and more specifically MCL

691.1407(1). MDOT contended that the highway excep-

tion to governmental immunity, MCL 691.1402, did not

apply for the following two reasons: “(1) the accident

MCL 600.6421 provides:

Cases in the court of claims may be joined for trial with cases

arising out of the same transaction or series of transactions which

are pending in any of the various trial courts of the state. A case in

the court of claims shall be tried and determined by the judge even

though the trial court action with which it may be joined is tried to

a jury under the supervision of the same trial judge.

348 294 M

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343 [Oct

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occurred on a closed portion of the road that was not

intended for vehicular travel at the time as a result of

the ongoing construction activities; and (2) Plaintiff’s

claims for negligent placement of barricades and other

traffic control devices does not fit within the highway

exception as a matter of law.”

Plaintiff filed a response to the motion, arguing that

she did not drive on the wrong side of the barrels and

that the barrels were set up in such a manner so as to

not clearly indicate a right or wrong side for vehicular

travel. Plaintiff maintained that she and several other

drivers drove where they were directed by the barrels,

leading them into a construction hole dug across two of

the three exit or flare lanes in the improved portion of

the roadway.

Plaintiff argued that the highway excep-

tion to governmental immunity was thus fully appli-

cable. Documentary evidence submitted by plaintiff

showed that four vehicles, including plaintiff’s car, took

the exit lane that was under construction and struck

the hole. Four separate crash reports indicated that the

accidents occurred around the same time.

The crash

reports further indicated that the vehicles struck or

drove into the large hole in the roadway because of a

confusing road-closure set up. In two of the reports, it

was noted, “Investigation found barrels for construc-

tion confusing.” A couple of the crash reports also

stated that the county road commission was contacted

It was a bit unclear from the record whether plaintiff wanted to take

that particular exit to arrive at her desired destination, whether she had

no such intent but felt that the barrels and barriers forced or directed her

to leave the highway and enter the exit lane, or whether she wished to

take the exit and thought that she was also compelled to exit the highway.

There were several miles of highway in the area that were undergoing

construction.

The reports reflected that one car crashed into the hole at 5:14 a.m.,

that another vehicle also hit the hole at 5:14 a.m., that plaintiff struck the

hole at 5:28 a.m., and that a fourth car drove into the hole at 5:29 a.m.

2011] S

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PINION OF THE

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because of the confusing closure set up, that road

commission personnel arrived, and that the personnel

“made adjustments.”

Plaintiff testified in her deposition that she was

driving slower because of the construction in the gen-

eral area, that she took the exit at issue, and that the

next thing she knew was that the front of her car was at

the bottom of a hole. She did not see the hole before

impact and did not have the opportunity to take any

evasive action. Plaintiff could not recall the placement

of any barrels or barricades near the exit, and she did

not see any exit-closed signs. Plaintiff testified that she

observed a regular exit sign for westbound M-59; she

did not see a sign for a “temporary” M-59 westbound

exit. She stated that she did not see any construction

vehicles or construction equipment in the area around

the hole. Plaintiff observed two other cars in different

parts of the same hole when she crashed. As she

scurried to get out of her car out of fear that other cars

might run into her vehicle before she got out, the fourth

car plowed into another section of the hole.

Officer Gary Venet, who was one of the responding

police officers, testified in his deposition that “it wasn’t

clear that...theroad was - - that that lane was closed.”

Venet further testified that, to the best of his memory,

“the barrels were spaced a little too far apart, and that

there wasn’t a sign specifically indicating that the exit

was closed.” Sergeant Philip Abdoo, who also responded

to the accident scene, testified that the hole was about

the width of one lane and probably six to seven feet

deep. Abdoo also indicated that “[t]he road was marked

with barrels. However, it was somewhat confusing

where the barrels meant to direct traffic.” Documents

from the road construction company, we presume Carlo,

contained a foreman’s diary, which provided:

350 294 M

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343 [Oct

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Note that even after we put type III barricades up at the

EB off ramp for WB Hall two cars still managed to drive

into the open hole where we pulled the concrete for the pipe

crossing at sta. 997+00. Leo from MDOT called to tell me

and we had to re-adjust the barricades again to try and

keep traffic out!! Note that Leo himself drove into the

corner of this proposed pipe crossing and he ended up in

the ditch, and he knew it was there but wasn’t watching

where he was going[.]

Another document from the company included an

entry by a different company foreman, who stated as

follows:

U/G crews working on EB storm sewer X-ings...from

north of RR to 23 Mi. Rd. There was confusion with traffic

overnight after [workers] removed pavement for these

X-ings. Traffic was used to using the long deceleration lane

from EB I-94 to WB M-59 and 4 cars came through the

closure into the pavement removal area. Removals finish

up at 4:00 AM with U/G crews starting at 6:30 AM.

It thus appears that the construction hole at issue was

cut or excavated at or before 4:00 a.m., with the

accidents occurring a little more than an hour later.

Gordon Wall, a safety manager who worked for Carlo,

testified that the police contacted MDOT after the

accidents and that an MDOT inspector contacted Carlo

regarding the need for more barrels. Arnold Beller, an

MDOT employee, made the following comments in a

daily report: “Accident at 5:00 am on EB I94 @ M59 WB

off Ramp. 4 cars came behind the lane closure into the

closed lane and ran off into the open pavement patching

area.” Plaintiff also submitted an affidavit from Tho-

mas Maleck, Ph.D., who averred and opined that the

“accident occurred in the active roadbed designed for

vehicular traffic,” that the hole “constituted a defect,”

that the defect “was within the active roadbed designed

2011] S

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ARLO,

351

PINION OF THE

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for vehicular travel,” and that “the defect...falls

within the highway exception to governmental immu-

nity.”

At oral argument on the motion for summary dispo-

sition, MDOT’s counsel, on questioning by the trial

court, conceded that there was no sign indicating that

the exit taken by plaintiff and the other drivers was

closed to traffic. We note that the parties agree that

there was a temporary exit sign for westbound M-59

located further down eastbound I-94 and past the exit at

issue that was intended to direct motorists to an alter-

nate exit that could be taken to access westbound M-59

for those drivers who would have ordinarily used the

earlier “closed” exit. The trial court took the motion for

summary disposition under advisement and subse-

quently issued a written opinion and order. The court

denied defendant’s motion for summary disposition and

granted, under MCR 2.116(I)(2), partial summary dis-

position in favor of plaintiff with respect to the issue of

governmental immunity. The trial court reasoned:

It is true that a dispute over the mere placement of

traffic signs will not be sufficient for plaintiff to invoke the

“highway exception” to MDOT’s immunity from tort liabil-

ity because such signs are not typically in the roadbed

itself.... Contrary to MDOT’s position, however, this is

not a situation in which mere sign placement is involved.

Instead, the instant controversy involves the overall suffi-

ciency of warnings in the roadbed itself.

The primary issue is whether MDOT had closed the

subject area of the highway. If MDOT had done so, then its

duty under MCL 691.1402(1) to keep the highways in

reasonably good repair and fit for public travel would have

been suspended [under Grounds v Washtenaw Co Rd

Comm, 204 Mich App 453; 516 NW2d 87 (1994)], which, in

turn, means that MDOT would not be subject to tort

liability under the “highway exception,” but instead would

be immune from such liability under MCL 691.1407(1). As

352 294 M

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343 [Oct

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addressed above, the evidence shows that there was a great

deal of confusion as to whether the area containing the hole

was actually closed. Unlike the situation in Grounds,

supra, there is no evidence of a sign that clearly and

specifically marked the area as closed to traffic. Neither

were there any flashing arrows or detour signs. Signifi-

cantly, the area was confusing to several other drivers,

including an MDOT employee, all of whom also drove into

the hole. Even law enforcement personnel express[ed]

confusion as to whether the area was closed. Contrary to

MDOT’s assertion, this dispute does not merely involve the

proper spacing of the orange cones, but also involves the

lack of other warning devices. Under the totality of [the]

circumstances, it was not clear that the area was in fact

closed to traffic. Therefore, it cannot be concluded that

MDOT’s duty under MCL 691.1402(1) was suspended. In

turn, this means that plaintiff may pursue her tort claim

against MDOT under the “highway exception” to govern-

mental immunity.

Accordingly, MDOT is not entitled to summary disposi-

tion pursuant to MCR 2.116(C)(7)....Moreover, plaintiff’s

motion for partial summary disposition should be granted

pursuant to MCR 2.116(I)(2) as to the issue of governmen-

tal immunity since MDOT is not immune from tort liabil-

ity.

[

]

Defendant MDOT appeals as of right the trial court’s

ruling.

II. ANALYSIS

A. STANDARD OF REVIEW AND SUMMARY DISPOSITION TESTS

This Court reviews de novo a trial court’s decision on

a motion for summary disposition. Loweke v Ann Arbor

We note that plaintiff did not actually file a motion for partial

summary disposition. However, under MCR 2.116(I)(2), “[i]f it appears to

the court that the opposing party, rather than the moving party, is

entitled to judgment, the court may render judgment in favor of the

opposing party.”

2011] S

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ARLO,

353

PINION OF THE

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Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809

NW2d 553 (2011); In re Egbert R Smith Trust, 480 Mich

19, 23; 745 NW2d 754 (2008). Further, the determina-

tion regarding the applicability of governmental immu-

nity and a statutory exception to governmental immu-

nity is a question of law that is also subject to review de

novo. Co Rd Ass’n of Mich v Governor, 287 Mich App 95,

117-118; 782 NW2d 784 (2010); Robinson v City of

Lansing, 282 Mich App 610, 613; 765 NW2d 25 (2009),

rev’d on other grounds 486 Mich 1 (2010). Indeed, we

review de novo questions of law in general, including

matters of statutory construction. Loweke, 489 Mich at

162; Feyz v Mercy Mem Hosp, 475 Mich 663, 672; 719

NW2d 1 (2006); Byker v Mannes, 465 Mich 637, 643;

641 NW2d 210 (2002).

Under MCR 2.116(C)(7), an order granting a motion for

summary disposition in favor of a defendant is proper

when the plaintiff’s claim is “barred because of...immu-

nity granted by law....” See Odom v Wayne Co, 482

Mich 459, 466; 760 NW2d 217 (2008). The moving party

may submit affidavits, depositions, admissions, or other

documentary evidence in support of the motion if substan-

tively admissible. Id. The contents of the complaint must

be accepted as true unless contradicted by the documen-

tary evidence. Id. This Court must consider the documen-

tary evidence submitted for purposes of a motion brought

under MCR 2.116(C)(7) relative to governmental immu-

nity in a light most favorable to the nonmoving party.

Herman v Detroit, 261 Mich App 141, 143-144; 680 NW2d

71 (2004). If there is no relevant factual dispute, whether

a plaintiff’s claim is barred under a principle set forth in

MCR 2.116(C)(7) is a question of law for the court to

decide. Huron Tool & Engineering Co v Precision Con-

sulting Servs, Inc, 209 Mich App 365, 377; 532 NW2d 541

(1995). If, however, a pertinent factual dispute exists,

summary disposition is not appropriate. Id.

354 294 M

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B. GENERAL PRINCIPLES—STATUTORY INTERPRETATION

This appeal entails, in part, an issue of statutory

construction. In McCormick v Carrier, 487 Mich 180,

191-192; 795 NW2d 517 (2010), the Michigan Supreme

Court recited the familiar principles that guide our

interpretation of a statute:

The primary goal of statutory construction is to give effect

to the Legislature’s intent. This Court begins by reviewing

the language of the statute, and, if the language is clear and

unambiguous, it is presumed that the Legislature intended

the meaning expressed in the statute. Judicial construction of

an unambiguous statute is neither required nor permitted.

When reviewing a statute, all non-technical words and

phrases shall be construed and understood according to the

common and approved usage of the language, MCL 8.3a, and,

if a term is not defined in the statute, a court may consult a

dictionary to aid it in this goal. A court should consider the

plain meaning of a statute’s words and their placement and

purpose in the statutory scheme. Where the language used

has been subject to judicial interpretation, the legislature is

presumed to have used particular words in the sense in which

they have been interpreted. [Citations and quotation marks

omitted.]

This Court must avoid a construction that would

render any part of a statute surplusage or nugatory.

Zwiers v Growney, 286 Mich App 38, 44; 778 NW2d 81

(2009). We may read nothing into an unambiguous

statute that is not within the manifest intent of the

Legislature as derived from the words of the statute

itself. Id.

C. GENERAL PRINCIPLES—GOVERNMENTAL IMMUNITY

Except as otherwise provided, the GTLA broadly

shields and grants immunity to governmental agencies

from tort liability when an agency is engaged in the

exercise or discharge of a governmental function. MCL

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691.1407(1); Duffy v Dep’t of Natural Resources, 490

Mich 198, 204; 805 NW2d 399 (2011); Grimes v Dep’t of

Transp, 475 Mich 72, 76-77; 715 NW2d 275 (2006).

“The existence and scope of governmental immunity

was solely a creation of the courts until the Legislature

enacted the GTLA in 1964, which codified several

exceptions to governmental immunity that permit a

plaintiff to pursue a claim against a governmental

agency.” Duffy, 490 Mich at 204. A governmental

agency

is potentially liable under the GTLA only if the

case against it falls into one of these enumerated

statutory exceptions to governmental immunity.

Grimes, 475 Mich at 77; Stanton v Battle Creek, 466

Mich 611, 614-615; 647 NW2d 508 (2002). An activity

that is expressly or impliedly authorized or mandated

by constitution, statute, local charter, ordinance, or

other law constitutes a governmental function. Maskery

v Univ of Mich Bd of Regents, 468 Mich 609, 613-614;

664 NW2d 165 (2003). This Court gives the term

“governmental function” a broad interpretation, but

the statutory exceptions must be narrowly construed.

Id. at 614. “A plaintiff filing suit against a governmental

agency must initially plead his claims in avoidance of

governmental immunity.” Odom, 482 Mich at 478-479.

The highway exception to governmental immunity,

MCL 691.1402, provides, in pertinent part:

(1) Except as otherwise provided in section 2a, each

governmental agency having jurisdiction over a highway

shall maintain the highway in reasonable repair so that it

is reasonably safe and convenient for public travel. A

person who sustains bodily injury or damage to his or her

property by reason of failure of a governmental agency to

keep a highway under its jurisdiction in reasonable repair

The state of Michigan is a governmental agency for purposes of the

GTLA, MCL 691.1401(d), and this includes its departments such as

MDOT, MCL 691.1401(c). See Duffy, 490 Mich at 204 n 2.

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and in a condition reasonably safe and fit for travel may

recover the damages suffered by him or her from the

governmental agency.... The duty of the state and the

county road commissions to repair and maintain highways,

and the liability for that duty, extends only to the improved

portion of the highway designed for vehicular travel and

does not include sidewalks, trailways, crosswalks, or any

other installation outside of the improved portion of the

highway designed for vehicular travel. [Emphasis added.]

A “highway” is statutorily defined as “a public high-

way, road, or street that is open for public travel and

includes bridges, sidewalks, trailways, crosswalks, and

culverts on the highway.” MCL 691.1401(e) (emphasis

added). MCL 691.1402(1) and MCL 691.1401(e) must be

read together as a single law, and when they “are read

in pari materia, it is clear that all governmental agen-

cies have a duty to maintain highways within their

jurisdiction in reasonable repair, but that this duty only

extends to ‘highways’ that fall within the definition of

‘highway’ in MCL 691.1401(e).” Duffy, 490 Mich at 207.

In regard to the state and county road commissions

under the highway exception, the statutory language

creates a duty to maintain a highway solely with respect

to the traveled portion, paved or unpaved, of the road-

bed actually designed for vehicular travel by the public.

Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 180;

615 NW2d 702 (2000); Grimes, 475 Mich at 79. “[I]f the

condition is not located in the actual roadbed designed

for vehicular travel, the narrowly drawn highway ex-

ception is inapplicable and liability does not attach.”

Nawrocki, 463 Mich at 162; see also Grimes, 475 Mich

at 79. Our Supreme Court has clearly stated that

allegations concerning a lack of warning and traffic-

control devices, or allegations of design defects, do not

implicate the highway exception and the government’s

duty to repair and maintain a highway. Hanson v

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Mecosta Co Rd Comm’rs, 465 Mich 492, 499; 638 NW2d

396 (2002); Nawrocki, 463 Mich at 183-184.

D. MDOT’S APPELLATE ARGUMENTS

MDOT first argues that the trial court erroneously

ruled that governmental immunity was inapplicable

under the highway exception, because there was no

dispute that plaintiff’s claims solely involved the alleged

inadequacy of traffic-control devices and barricades,

which do not in any way involve the improved portion of

a highway designed for vehicular travel. In addition,

according to MDOT, the trial court’s ruling was in error

because there was no dispute that the area where the

hole was located was neither designed nor intended for

vehicular traffic, given that it was closed during ongo-

ing construction activities. Finally, as an alternative

argument, MDOT maintains that the trial court erro-

neously granted partial summary disposition in favor of

plaintiff on the issue of governmental immunity, be-

cause there were, at the very least, genuine issues of

material fact concerning whether the exit lane was

closed at the time of the accident.

E. HOLDING AND DISCUSSION

We hold that the trial court properly denied MDOT’s

motion for summary disposition, albeit for reasons

slightly different from those expressed by the court. We

initially note that there is no dispute that MDOT was

engaged in the exercise or discharge of a governmental

function; therefore, immunity would shield MDOT ab-

sent application of the highway exception. With respect

to the highway exception and its limitation that the

state’s duty, and the liability for that duty, extends only

to the “improved portion of a highway,” MCL

691.1402(1), we conclude that the condition or hazard

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that must be examined is the construction hole in the

exit lane for purposes of determining whether this case

concerned an improved portion of a highway. The

excavated hole was the direct proximate cause of the

accident; but for the construction hole, there would be

no crash or resulting damages. And the roadbed of the

exit lane wherein the hole was located is indisputably

part of “the improved portion of the highway” and not

an “installation outside of the improved portion of the

highway....”MCL691.1402(1).

Furthermore, it can-

not reasonably be disputed that the exit lane had been

“designed for vehicular travel,” MCL 691.1402(1). In-

deed, the very purpose of designing and constructing

the exit lane was to provide an avenue by which vehicles

could travel off the main highway and head toward a

different destination. Accordingly, and generally speak-

ing, MDOT had a duty under MCL 691.1402(1) to

maintain the exit lane “in reasonable repair so that it

[was] reasonably safe and convenient for public travel.”

However, we must also contemplate the impact of

construction activities on MDOT’s duty, and this issue

necessarily entails consideration of whether the exit

lane could properly be deemed a “highway” at the time

of the accident under the statutory definition of “high-

way” in MCL 691.1401(e), which required the exit lane

to be “open for public travel....”This is the part of the

analysis where the traffic-control devices, i.e., orange

barrels, signs, markers, and barricades, become rel-

evant.

Traffic-control devices generally indicate whether or

not a road is “open for public travel.” Matters concern-

At this juncture in our analysis, we are proceeding on the assumption

that the exit lane fits the definition of a “highway” under MCL

691.1401(e). That issue, however, will be explored in detail later in this

opinion.

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ing the traffic-control devices here cannot be viewed or

examined in a vacuum and must necessarily be consid-

ered in conjunction with, and not independent of, the

construction hole in the exit lane. If the exit lane was

effectively open for public travel and not closed as

reflected by traffic-control devices, MDOT’s duty to

keep the exit lane reasonably safe for public travel

would be implicated.

MDOT argues that it is beyond

rational dispute that the exit lane was in fact closed for

public travel given the construction activities and the

placement of orange barrels. We shall later discuss the

issue concerning whether the exit lane was open or

closed for public travel as indicated by the barrels and

We note that, assuming the existence of a duty, the placement of

traffic-control devices would also be relevant to the issue whether the

excavation and presence of the construction hole constituted a breach of

the duty to maintain the exit lane in reasonable repair, or, stated

otherwise, whether MDOT was negligent. “[T]ort actions against gov-

ernmental agencies generally raise two separate issues: 1) whether the

plaintiff has pleaded a cause of action in avoidance of governmental

immunity, and 2) whether the plaintiff can establish the elements of a

negligence action.” Glancy v City of Roseville, 457 Mich 580, 588; 577

NW2d 897 (1998) (noting that actionable negligence relates to a failure to

keep a highway in reasonable repair). There is some natural overlap in

this case between the issue of negligence and the applicability of the

highway exception in relationship to the traffic-control devices. MCL

691.1402(1) and MCL 691.1401(e) make it relevant in determining the

applicability of the highway exception whether a highway was open for

public travel, thereby requiring consideration of traffic-control devices,

and, if indeed the highway was open, resolution of MDOT’s negligence

would turn, in part, on any negligent conduct in placing the traffic-

control devices in such a manner that they effectively allowed the exit

lane to remain open, thereby making the construction hole a true defect

in the roadbed. It is possible that presumed inadequate traffic-control

devices may have existed because of circumstances beyond MDOT’s

blameworthiness in tort, e.g., perhaps other vehicles recently knocked

down some barrels or vandals removed an “exit closed” sign. And it is also

possible that a jury could allocate fault, in whole or in part, to contractor

Carlo or others. The question of negligence is outside the scope of this

appeal.

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other traffic-control devices. Setting aside for the mo-

ment consideration of the barrels with regard to the

determination whether the exit lane was open for public

travel, we do not find that the construction activities, in

and of themselves, support a conclusion that the exit

lane was closed. Assuming a motorist could observe

from a distance that construction was ongoing on part

of a highway that he or she wished to use, the motorist

could still reasonably proceed to drive through the

construction zone if there were no signs or traffic-

control devices indicating a closure, given that road-

ways through construction zones often remain open,

although there might be some limitations, e.g., only one

lane available. A road is not necessarily closed for public

travel simply because construction work is being per-

formed in the area. We acknowledge that there are

situations in which a construction project so blatantly

blocks any potential use of a roadway that a reasonable

motorist would certainly understand and appreciate

that the roadway was fully closed, even in the absence

of any signage or traffic-control devices. For purposes of

analyzing the applicability of the highway exception to

governmental immunity, we conclude that the appropri-

ate test for determining whether a road is open for

public travel is whether a reasonable motorist, under all

the circumstances, would believe that the road was

open for travel.

It would be nonsensical to conclude

that a road was closed for public travel in circumstances

in which a motorist had no notice that construction

On the possibility that plaintiff had not planned to use the exit but

did so only because she believed that the orange barrels were temporarily

directing her off the main highway because of construction, the test

would be framed in terms of determining whether a reasonable motorist

would have believed that he or she was required to exit the highway,

which would indicate to the motorist that the exit lane had to be open for

use.

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activities precluded the safe use of the road, making

evasive action difficult or impossible.

With its focus placed chiefly on the traffic-control

devices, MDOT’s position in this appeal essentially

ignores the fact that a construction hole existed in the

roadbed of the exit lane. Again, the issue concerning the

traffic-control devices cannot be considered in isolation;

rather, it affects the questions whether the exit lane was

open for public travel and whether MDOT was negli-

gent, both of which questions relate to the construction

hole. The traffic-control devices would be entirely irrel-

evant if the exit lane had no construction hole. It is true

that plaintiff’s allegations in her complaint focused

heavily on MDOT’s management and handling of the

traffic-control devices. But plaintiff also alleged that

her “injuries were the direct and proximate result of the

negligence of...MDOT and the defective, unsafe and

confusing barricading of the construction hole dug in

and at this highway exit lane, which was not obvious to

approaching traffic and created a point of special dan-

ger.” (Emphasis added.) MDOT argues that “[e]ven

assuming the road was not properly barricaded, this has

nothing whatsoever to do with governmental immu-

nity.” This argument fails to take into consideration the

presence of the construction hole. If there were abso-

lutely no barricades blocking access to the exit lane and

a complete absence of signage indicating a closure, one

would simply have a case where a motorist struck a

major defect in the exit lane and the case would easily

fit within the parameters of the highway exception.

We observe that almost any defective condition in a

roadbed could be viewed as creating some type of duty

to warn the public of the condition through signage,

markers, barrels, or other traffic-control devices. For

example, if part of the roadbed of a bridge or overpass

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had become dilapidated to the point that a motor

vehicle could not safely traverse the bridge without

the danger of crashing to the ground below, and a

vehicle did in fact so crash where there was a com-

plete absence of any warnings about the roadbed

defect, it might be argued that governmental immu-

nity applied without implicating the highway excep-

tion. In that scenario, although the improved portion

of the highway, or roadbed, would indisputably be

defective, a subsequent suit would likely entail, to

some degree or in some fashion, allegations of a

negligent failure to employ traffic-control devices.

The same could be said for a case that simply involved

a large, dangerous pothole that caused an accident,

with a defendant arguing that the strategic place-

ment of a barrel would have mitigated the danger and

thus the resulting lawsuit would in essence be an

action concerning traffic-control devices. We, how-

ever, do not find that these hypothetical situations

would justify granting immunity, where the fact

remained that the cases ultimately concerned a road-

bed condition that proximately caused damages. The

case sub judice is not a case where we are merely

talking about, for example, negligence in failing to

repair a malfunctioning stoplight that leads to a

crash in an intersection; we have the added element

and involvement of a roadbed condition that was

ultimately the cause of the crash.

We shall now turn our attention to the cases cited

and relied on by the parties, which we find are entirely

consistent with our approach, reasoning, and analysis.

In Nawrocki, the plaintiff was injured in a motor vehicle

accident at an intersection when his car and another

vehicle collided. The plaintiff sued the defendant, alleg-

ing that the defendant “owed him a duty to install

additional stop signs or traffic signals at the intersec-

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tion.” Nawrocki, 463 Mich at 154.

The issue addressed

by the Court was whether, under the highway exception

to governmental immunity, “the state or a county road

commission ha[d] a duty to install, maintain, repair, or

improve traffic control devices, including traffic signs.”

Id. at 173. The Court held that the highway exception

did not contemplate conditions arising from points of

hazard, areas of special danger, or integral parts of a

highway that were outside the actual roadbed, whether

paved or unpaved, designed for vehicular travel. Id. at

176-177. Further, our Supreme Court elaborated and

ruled:

The state and county road commissions’ duty, under the

highway exception, is only implicated upon their failure to

repair or maintain the actual physical structure of the

roadbed surface, paved or unpaved, designed for vehicular

travel, which in turn proximately causes injury or damage.

A plaintiff making a claim of inadequate signage, like a

plaintiff making a claim of inadequate street lighting or

vegetation obstruction, fails to plead in avoidance of gov-

ernmental immunity because signs are not within the

paved or unpaved portion of the roadbed designed for

vehicular travel. Traffic device claims, such as inadequacy

of traffic signs, simply do not involve a dangerous or

defective condition in the improved portion of the highway

designed for vehicular travel.

[The plaintiff] argues that the [defendant] failed to

install additional traffic signs or signals that might con-

ceivably have made the intersection safer. Because the

highway exception imposes no such duty on the state or

county road commissions, we reverse the decision of the

We note that the Nawrocki opinion involved two consolidated appeals

of separate cases with distinct factual backgrounds. Nawrocki’s compan-

ion case was Evens v Shiawassee Co Rd Comm’rs. Our discussion here

pertains to the Michigan Supreme Court’s review of the facts, its

analysis, and the Court’s holding with respect to Evens, but for reasons

of clarity and to avoid confusion, we shall simply make reference to

Nawrocki for citation purposes.

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Court of Appeals and reinstate the trial court’s grant of

summary disposition to the [defendant]. [Id. at 183-184

(citation omitted).]

Here, there can be no reasonable dispute that, ulti-

mately, the point of hazard or area of special danger was

the construction hole in the actual roadbed of the exit

lane. While this case involves in part a claim of inad-

equate traffic signage and control devices, it also in-

volves an allegedly dangerous or defective condition in

the improved portion of the highway that proximately

caused injury or damage, which condition must be

examined in the context of and in relationship to the

adequacy of traffic-control devices.

In its discussion, the Nawrocki Court overruled Pick

v Szymczak, 451 Mich 607; 548 NW2d 603 (1996), on

the basis that Pick would have plausibly and improperly

allowed a plaintiff to argue the following:

— there should have been yield signs along a highway

instead of no signs;

— there should have been stop signs along a highway

instead of yield signs;

— there should have been a flashing yellow/red traffic

light along a highway instead of stop signs;

— there should have been a fully functional

red/yellow/green traffic signal along a highway instead

of a flashing yellow/red light;

— there should have been an overpass above a highway,

thus eliminating the need for traffic signals altogether;

— there should have been a 25 MPH sign, instead of a 30

MPH sign, nearing an approach to an intersection; or

— there should have been a left turn lane where none

existed. [Nawrocki, 463 Mich at 178.]

Under Nawrocki, these hypothetical scenarios do not

implicate the highway exception because they do not

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concern a condition relative to the improved portion of

a highway designed for vehicular travel. None of them,

however, can be analogized to the factual situation here,

because they do not entail the added element of a

roadbed condition or hazard that proximately caused

injuries. Nawrocki is entirely consistent with our prof-

fered analysis above and does not demand a contrary

result, since the case at bar encompasses a condition

concerning the improved portion of a highway—the

construction hole.

In Grimes, 475 Mich at 73, the Michigan Supreme

Court framed the issue there as whether, for purposes of

the highway exception to governmental immunity, the

shoulder of a highway was part of the improved portion

of the highway designed for vehicular travel. The Court

held:

We believe that, taken as a whole, the language of the

highway exception supports the view that a shoulder,

unlike a travel lane, is not designed for vehicular travel.

Consequently, we adopt a view of “travel” that excludes the

shoulder from the scope of the highway exception. Thus,

we hold that only the travel lanes of a highway are subject

to the duty of repair and maintenance specified in MCL

691.1402(1).

Also, our decision is consistent with Nawrocki....[O]ur

determination that the shoulder is not designed for vehicu-

lar travel reinforces Nawrocki’s reading of the highway

exception that it encompassed only the “ ‘traveled portion,

paved or unpaved, of the roadbed actually designed for

public vehicular travel.’ ” [Grimes, 475 Mich at 91.]

Other than reiterating the principles from Nawrocki,

the opinion in Grimes does not play a significant

relevant role in deciding our case. It does support our

earlier proposition that the exit lane had been designed

for vehicular travel.

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This Court’s decision in Grounds, 204 Mich App 453,

addressed the issue of a closed roadway and its effect on

the duty to maintain the roadway in a safe condition. It

is a rather short opinion; therefore, we shall quote it in

full, omitting some of the general principles on govern-

mental immunity and statutory language that we have

already alluded to above:

These consolidated actions arise from an automobile

accident that occurred at the intersection of Stoney Creek

Road and Platt Road in Washtenaw County on November

10, 1987. Cynthia Kimble was traveling east and Calvin

Grounds was traveling west on Stoney Creek Road. At that

time Stoney Creek was undergoing repairs. There were

eight-foot-wide barricades in the middle of Stoney Creek on

both sides of the intersection with signs warning motorists

that the road was closed to through traffic. Both Cynthia

Kimble and Nancy Grounds, the personal representative of

the estate of Calvin Grounds, brought suit against defen-

dant, alleging that defendant’s negligent placement of the

barricades caused the accident.

Defendant filed a motion for summary disposition with

respect to each plaintiff under MCR 2.116(C)(8) and

(C)(10), alleging that it had no statutory duty to plaintiffs

because Stoney Creek Road was not open to public travel.

Following a hearing on the motion, the court granted

summary disposition in favor of defendant. Plaintiffs now

appeal as of right. We affirm.

***

The key issue here is whether the highway exception to

governmental immunity applies when the road is undergo-

ing repairs or reconstruction and has been marked as

“closed to through traffic.” We find that it does not.

Our Supreme Court has held that a governmental

agency may suspend its duty to keep the streets in good

repair and fit for public travel while the street is being

improved or repaired by closing to public traffic that

portion of the street. Southwell v Detroit, 74 Mich 438; 42

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NW 118 (1889), Beattie v Detroit, 137 Mich 319; 100 NW

574 (1904), and Speck v Bruce Twp, 166 Mich 550; 132 NW

114 (1911). Here, the road was marked by eight-foot

barricades as being closed to through traffic while repairs

and improvements were being made. We find this was

sufficient to suspend the statutory exception to govern-

mental immunity.

In their briefs on appeal, plaintiffs discuss at great

length whether plaintiff Kimble had a right to use the road;

we find that question to be irrelevant to our holding.

[Grounds, 204 Mich App at 454-456.]

It is abundantly clear that Stoney Creek Road was, in

general, closed because of construction and that traffic-

control devices adequately indicated the closure, since

the road was expressly marked closed to through traffic

and huge barriers were in place. More importantly, the

Grounds panel specifically ruled that the highway ex-

ception to governmental immunity was suspended be-

cause “the road was marked by eight-foot barricades as

being closed to through traffic while repairs and im-

provements were being made.” Id. at 456 (emphasis

added). In that same vein, the Court also indicated that

a governmental agency may suspend its duty to keep a

street in good repair and fit for travel by the public

while the street is under construction “by closing to

public traffic that portion of the street.” Id. (emphasis

added). Accordingly, a highway is not open for public

travel when the government “closes” the highway and

“marks” it as being closed, which would typically entail

the use of adequate traffic-control devices. Therefore,

Grounds is consistent with our analysis, and it negates

any stance that, for purposes of analyzing the highway

exception, a road is not open for public travel simply

because it is under construction and regardless of

whether it is sufficiently marked as being closed by the

governmental agency.

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A case relied on by MDOT is Pusakulich v City of

Ironwood, 247 Mich App 80; 635 NW2d 323 (2001),

wherein the plaintiff sustained injuries when she fell on

an allegedly defective city sidewalk that was adjacent to

a street that was temporarily closed for repairs to a

water line running underneath the street. The plaintiff

alleged that “a slab of the sidewalk was missing, the

area filled with water, and the area was unmarked and

unlit.” Id. at 81. She fell while attempting to jump over

the hole that she believed was simply a puddle on the

sidewalk. Id. The Pusakulich panel affirmed the grant

of summary disposition in favor of the defendant city,

but only because it believed that it was required to do so

under prior precedent. Id. This Court stated:

We recognize that the status of a sidewalk for purposes

of governmental immunity depends on whether the adja-

cent highway is covered by the exception. MCL

691.1401(e). The highway in this case was temporarily

closed. Because this Court previously determined...that

temporary closure removed a street itself from the highway

exception, those decisions necessarily also require us to

conclude that any sidewalk connected with the temporarily

closed highway is also removed from the highway exception

along with the highway. In this case, Aurora Street was

temporarily closed and, under the broad holding of

Grounds, supra, that closure removed it from the highway

exception to governmental immunity. Because the sidewalk

on which plaintiff alleged that she sustained injuries was

adjacent to this temporarily closed street, we are com-

pelled... to conclude that it too was removed from the

exception. Although we disagree with that conclusion, we

reluctantly acknowledge that, under existing case law, the

trial court properly granted summary disposition. [Pusaku-

lich, 247 Mich App at 87 (citations omitted).]

We note that a special panel was not convened. Pusaku-

lich v City of Ironwood, 247 Mich App 801 (2001).

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As in Grounds, the panel in Pusakulich was address-

ing a situation in which there was no dispute that the

road, and therefore its adjacent sidewalk, was tempo-

rarily closed. There is such a dispute in the case at bar.

Neither Grounds nor Pusakulich contravene our analy-

sis and instead they provide support for our holding,

because they indicate that the duty to keep a highway in

reasonable repair is suspended when the highway is

effectively closed by authorities, with the necessary

corollary being that the duty is still owed if the highway,

despite undergoing construction, is not properly closed

to the public.

Finally, it must be determined whether the trial court

properly granted partial summary disposition in favor

of plaintiff on the issue of governmental immunity. The

trial court essentially found that the exit lane was open

for public travel as a matter of law because it was not

adequately marked as being closed; therefore, the high-

way exception applied and MDOT was not shielded by

governmental immunity. MDOT argues that, mini-

mally, there was a genuine issue of material fact regard-

ing whether the exit lane was open for public travel.

MDOT contends that it “submitted abundant documen-

tary evidence in support of its position that the area

was, in fact, closed and therefore governmental immu-

nity applied.” MDOT relies on the police crash reports

that referenced “closed lanes” and “lane closures.”

As indicated already, the applicability of governmen-

tal immunity and the highway exception turns on

whether the exit lane, at the time of the accident, was

open for public travel, which is determined on the basis

of the observations of a reasonable motorist driving

down I-94 at the time of the accident. Plaintiff did not

recall seeing any barriers or traffic-control devices that

directed her not to use the exit lane, and there is no

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dispute that there were no signs indicating that the exit

lane was closed. Three other drivers made the same

“mistake” as plaintiff, and a couple of the police crash

reports noted that, upon investigation, the placement of

the construction barrels was confusing. And two of the

reports also indicated that road commission personnel

made adjustments to the traffic-control devices after

the multiple accidents. Deposition testimony by re-

sponding police officers reflected that it was not clear

that the exit lane was closed. The police officers’ testi-

mony further indicated that the orange barrels were

spaced too far apart and that it was somewhat confus-

ing with respect to what direction the barrels were

directing I-94 traffic. Although it is somewhat unclear

from the record of all the surrounding circumstances,

even an inspector from MDOT drove into the hole.

MDOT relies on references to “closed lanes” and

“lane closures” in the crash reports. Although we

believe that little weight should be given to these

descriptive references, there is evidence that orange

barrels were indeed utilized and there were road con-

struction documents indicating that type III barricades

were put in place when the hole was cut in the exit lane.

Additionally, heavy road construction activities

throughout the exit lane area may have provided a

reasonable motorist visual notice that the exit lane was

closed to traffic regardless of the absence or adequacy of

traffic-control devices. And the testimony and reports of

the police officers did not declare that the exit lane

definitively appeared open for travel. While a close call,

we conclude that a genuine issue of material fact exists

with respect to whether the exit lane was effectively

open for public travel at the time of the accident, as

based on the observations of a reasonable motorist

driving down I-94. Accordingly, the trial court erred by

granting partial summary disposition in favor of plain-

2011] S

NEAD V

OHN

ARLO,

371

PINION OF THE

OURT

tiff on the basis that the highway exception applied as a

matter of law. The applicability of the highway excep-

tion will be dependent on the trier of fact’s finding

regarding whether the exit lane was closed or open to

public travel.

III. CONCLUSION

We conclude that the relevant condition or hazard for

purposes of determining the applicability of the highway

exception was the construction hole itself, which proxi-

mately caused the accident and any resulting damages.

Furthermore, we find, as a matter of law, that the exit

lane’s roadbed where the construction hole was located

constituted an improved portion of the highway and that

the exit lane had been designed for vehicular travel. We

also hold that a genuine issue of material fact exists

regarding whether the exit lane was closed or effectively

remained open for public travel at the time of the accident,

as gleaned by a reasonable motorist traveling along the

pertinent section of highway. Accordingly, we affirm the

trial court’s ruling that denied MDOT’s motion for sum-

mary disposition but we reverse the court’s determination

that plaintiff was entitled to partial summary disposition

with respect to the applicability of the highway exception

to governmental immunity.

Affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion. We do

not retain jurisdiction. Neither party having prevailed

in full on appeal, we decline to award taxable costs

under MCR 7.219.

ITZGERALD

, J., concurred with M

URPHY

, C.J.

ALBOT

,J.(concurring). Although I concur with the

majority’s ultimate ruling, I write separately because I

372 294 M

ICH

343 [Oct

ONCURRING

PINION BY

ALBOT

,J.

believe it unnecessary to suggest the existence of a new

rule of law or test to reach this correct outcome.

Tracy Snead was driving her vehicle on eastbound

I-94 near Hall Road, which was under construction.

Snead drove onto an exit ramp where she encountered

a large hole where the concrete had been removed in

part of the exit lane. Snead’s automobile was one of four

vehicles that were involved in accidents at this location

within a very short time. Her allegations against the

Michigan Department of Transportation (MDOT) are

that her injuries are the direct result of the defective,

unsafe, and confusing manner in which the construc-

tion area was barricaded. MDOT contends that Snead’s

claims are barred by governmental immunity and it is

entitled to summary disposition because the highway

exception does not require signage to be placed in a

construction area and the exception is inapplicable

because the roadway was closed to traffic.

The highway exception to governmental immunity is

statutory and provides:

[E]ach governmental agency having jurisdiction over a

highway shall maintain the highway in reasonable repair

so that it is reasonably safe and convenient for public

travel. A person who sustains bodily injury or damage to

his or her property by reason of failure of a governmental

agency to keep a highway under its jurisdiction in reason-

able repair and in a condition reasonably safe and fit for

travel may recover the damages suffered by him or her

from the governmental agency.... The duty of the state

and the county road commissions to repair and maintain

highways, and the liability for that duty, extends only to the

improved portion of the highway designed for vehicular

travel and does not include sidewalks, trailways, cross-

walks, or any other installation outside of the improved

portion of the highway designed for vehicular travel.

[1]

MCL 691.1402(1).

2011] S

NEAD V

OHN

ARLO,

373

ONCURRING

PINION BY

ALBOT

,J.

The Legislature has defined a highway as “a public

highway, road, or street that is open for public

travel....”

Because neither party disputes that

MDOT is a governmental agency

that was engaged in a

governmental function

at the time of the events com-

prising this matter, the focus of the analysis is on

MDOT’s duty to maintain the highway “in reasonable

repair and in a condition reasonably safe and fit for

travel....”

In asserting its entitlement to summary disposition,

MDOT contends that Snead cannot demonstrate that it

had a duty to provide warning signs or barriers since

the duty owed to travelers is recognized by law to be

very limited in scope.

Specifically MDOT notes:

The first sentence of the statutory clause, crucial in

determining the scope of the highway exception, describes

the basic duty imposed on all governmental agencies,

including the state, having jurisdiction over any highway:

“[to] maintain the highway in reasonable repair so that it

is reasonably safe and convenient for public travel.” This

sentence establishes the duty to keep the highway in

reasonable repair. The phrase “so that it is reasonably safe

and convenient for public travel” refers to the duty to

maintain and repair. The plain language of this phrase thus

states the desired outcome of reasonably repairing and

maintaining the highway; it does not establish a second

duty to keep the highway “reasonably safe.”

[7]

To the extent that Snead implies that MDOT had a duty

to place warnings signs or barricades for safety pur-

MCL 691.1401(e).

MCL 691.1401(d).

MCL 691.1401(f).

MCL 691.1402(1).

See Nawrocki v Macomb Co Rd Comm, 463 Mich 143; 615 NW2d 702

(2000).

Id. at 160 (citation omitted).

374 294 M

ICH

343 [Oct

ONCURRING

PINION BY

ALBOT

,J.

poses on the highway, her allegations cannot be sus-

tained. Yet, while there is no affirmative duty to place

barricades to designate a hazardous condition, the use

and placement of barricades can serve as evidence of

whether MDOT’s duty to keep the highway in reason-

able repair was suspended through the closure of the

relevant portion of the highway. This Court has recog-

nized decisions by our Supreme Court “that a govern-

mental agency may suspend its duty to keep the streets

in good repair and fit for public travel while the street

is being improved or repaired by closing to public traffic

that portion of the street.”

As such, the trial court

correctly identified that “[t]he primary issue is whether

MDOT had closed the subject area of the highway.”

Contrary to the majority’s opinion, this determination

simply comprises a question of fact and does not neces-

sitate the construction or imposition of a reasonable-

person test.

As discussed by the trial court, in this case

“there is no evidence of a sign that clearly and specifically

marked the area as closed to traffic. Neither were there any

flashing arrows or detour signs. Significantly, the area was

confusing to several other drivers, including an MDOT

employee, all of whom also drove into the hole. Even law

enforcement personnel expression [sic] confusion as to

whether the area was closed. Contrary to MDOT’s asser-

tion, this dispute does not merely involve the proper

spacing of the orange cones, but also involves the lack of

other warning devices. Under the totality of [the] circum-

stances, it was not clear that the area was in fact closed to

traffic.

Grounds v Washtenaw Co Rd Comm, 204 Mich App 453, 456; 516

NW2d 87 (1994), citing Southwell v Detroit, 74 Mich 438; 42 NW 118

(1889), Beattie v Detroit, 137 Mich 319; 100 NW 574 (1904), and Speck v

Bruce Twp, 166 Mich 550; 132 NW 114 (1911). See also Pusakulich v

Ironwood, 247 Mich App 80, 85-86; 635 NW2d 323 (2001).

2011] S

NEAD V

OHN

ARLO,

375

ONCURRING

PINION BY

ALBOT

,J.

Because of the existence of this question of fact regard-

ing whether the roadway was closed or open to traffic,

the trial court correctly ruled that MDOT was not

entitled to summary disposition based on governmental

immunity. The error committed by the trial court was

the granting of partial summary disposition in favor of

Snead on the issue of governmental immunity because

the overriding question of whether the roadway was

open or closed comprised a factual determination for

the trier of fact.

376 294 M

ICH

343 [Oct

ONCURRING

PINION BY

ALBOT

,J.

PEOPLE v BROWN

Docket No. 297728. Submitted October 11, 2011, at Detroit. Decided

October 20, 2011, at 9:00 a.m. Leave to appeal denied, 492 Mich

852.

Bryan Brown was convicted following a jury trial in the Macomb

Circuit Court of first-degree criminal sexual conduct (CSC-I)

involving a victim under 13 years of age. The court, James M.

Biernat, Sr., J., sentenced defendant to life in prison. Defendant

appealed by leave granted.

The Court of Appeals held:

1. The test of prosecutorial misconduct is whether the defen-

dant was denied a fair and impartial trial. However, a prosecutor’s

good-faith effort to admit evidence does not constitute misconduct.

In this case, defendant failed to show that the prosecution acted in

bad faith when it introduced evidence that defendant was the

subject of a federal child-pornography investigation and that he

had been arrested for possession of marijuana. Thus, defendant

failed to establish prosecutorial misconduct, but even if the

prosecutor had engaged in misconduct, defendant would not have

been entitled to relief because of the strong evidence supporting

his conviction.

2. Under MRE 404(b)(1), evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to

show action in conformity with that character. It may, however, be

admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, scheme, plan, or system in doing an act, knowl-

edge, identity, or absence of mistake or accident when the same is

material, whether such other crimes, wrongs, or acts are contempo-

raneous with, or prior or subsequent to the conduct at issue in the

case. Under MCL 768.27a, in a criminal case in which the defendant

is accused of committing a listed offense against a minor, evidence

that the defendant committed another listed offense against a minor

is admissible and may be considered for its bearing on any matter to

which it is relevant. A defendant’s propensity to commit criminal

sexual behavior can be relevant and admissible to demonstrate the

likelihood of the defendant committing criminal sexual behavior

toward another minor, but the evidence must also be assessed for

whether its probative value is outweighed by its prejudicial effect. In

2011] P

EOPLE V

ROWN

377

this case, the trial court did not abuse its discretion by admitting

evidence that defendant had improperly touched another girl, who at

the time was the same age as the victim in this case. Contrary to

defendant’s assertion, the court recognized its duty to weigh the

probative value of the evidence of other acts against the potential for

unfair prejudice and concluded that the evidence was admissible. And

the length of time between defendant’s conduct toward the other-acts

witness and the charged offense only affected the weight of the

evidence, not its admissibility.

3. To prevail on a claim of ineffective assistance of counsel, a

defendant must show that (1) counsel’s performance fell below an

objective standard of reasonableness under prevailing professional

norms, (2) there is a reasonable probability that, but for counsel’s

error, the result of the proceedings would have been different, and

(3) the resultant proceedings were fundamentally unfair or unre-

liable. Defendant failed to establish that he received ineffective

assistance of counsel based on counsel’s failure to object to the

alleged instances of prosecutorial misconduct given that he failed

to show the existence of prosecutorial misconduct, but regardless,

the claim of ineffective counsel failed in light of the overwhelming

evidence supporting the conviction.

4. A sentencing court cannot base its sentence on a defendant’s

decision to exercise his or her constitutional right to a jury trial.

However, it is not per se unconstitutional for a defendant to

receive a higher sentence following a jury trial than he or she

would have received in exchange for pleading guilty. In this case,

defendant was sentenced to life in prison following his trial, but

the trial court was required by statute to impose that sentence

and, thus, the sentence could not be viewed as punishment for

defendant’s decision to proceed to trial.

5. In deciding if punishment is cruel or unusual, a court

considers the gravity of the offense and the harshness of the

penalty, comparing the punishment to the penalty imposed for

other crimes in Michigan and the penalty imposed for the same

crime in other states. Under 750.520b(2)(c), a defendant over the

age of 17 who commits CSC-I involving a victim less than 13 years

of age when the defendant was previously convicted of a similar

sex crime with a victim less than 13 years of age must be sentenced

to life in prison without the possibility of parole. The penalty of life

in prison for a repeat offender convicted of CSC-I involving a

victim under the age of 13 reflects the gravity of the offense and is

similar to the penalties imposed in other states. The penalty is not

unconstitutionally cruel or unusual. Further, the sentencing

guidelines range does not apply to crimes for which there is a

378 294 M

ICH

377 [Oct

mandatory sentence, and the imposition of a mandated sentence

does not constitute a departure from the guidelines.

Affirmed.

ONSTITUTIONAL

AW —

ENTENCES —

RUEL OR

NUSUAL

UNISHMENT —

IRST

-D

EGREE

RIMINAL

EXUAL

ONDUCT —

EPEAT

FFENDERS —

IFE

MPRISONMENT

In deciding if punishment is cruel or unusual, a court considers

the gravity of the offense and the harshness of the penalty,

comparing the punishment to the penalty imposed for other

crimes in Michigan and the penalty imposed for the same crime

in other states; a defendant over the age of 17 who commits

first-degree criminal sexual conduct (CSC-I) involving a victim

less than 13 years of age when the defendant was previously

convicted of a similar sex crime with a victim less than 13 years

of age must be sentenced to life in prison without the possibility

of parole; the penalty of life in prison for a repeat offender

convicted of CSC-I involving a victim under the age of 13

reflects the gravity of the offense and is similar to the penalties

imposed in other states; the penalty is not unconstitutionally

cruel or unusual (US Const, Am VIII; Const 1963, art 1, § 16;

MCL 750.520b[2][c]).

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Eric J. Smith, Prosecuting Attorney,

and Joshua D. Abbott, Assistant Prosecuting Attorney,

for the people.

Linda D. Ashford, P.C. (by Linda D. Ashford), and

Bryan Brown, in propria persona, for defendant.

Before: O

WENS

,P.J., and J

ANSEN

and O’C

ONNELL

,JJ.

URIAM

. Following a jury trial, defendant was

convicted of one count of criminal sexual conduct in the

first degree (CSC-I), MCL 750.520b(1)(a) (victim under 13

years old). The trial court sentenced defendant to life in

prison. Defendant appeals by leave granted.

We affirm.

People v Brown, unpublished order of the Court of Appeals, entered

September 30, 2010 (Docket No. 297728).

2011] P

EOPLE V

ROWN

379

The complainant in this matter, MO, was born on

September 23, 2002. MO’s mother was in a dating

relationship with defendant and moved in with him in

May 2007, bringing MO with her. Defendant and MO

were often left alone together. On April 16, 2008, MO,

then five years old, was playing with CL, a boy who lived

in her neighborhood. CL went to his brother’s car to get

a toy from the trunk; CL’s little brother and MO

accompanied him. The children found DVDs depicting

naked people on the cover engaging in sex acts. MO

picked up one of the DVDs, and CL indicated that she

should not be looking at it. According to CL, MO said

that her dad made her “suck his wiener every night”

and that he “videotapes them, like, doing it.” CL

understood that MO was referring to defendant as her

dad. MO also told CL that defendant called what they

did together the humping game. Shortly after, defen-

dant arrived to take MO home.

Right after defendant took MO home, CL told his

mother what MO had reported to him. She called the

police. Brent Chisolm and William Ross, officers with

the Warren Police Department, went to defendant’s

residence to investigate the complaint they had re-

ceived. When the officers arrived, MO was sleeping in

defendant’s bed wearing only underpants. According to

Ross, he detected the odor of burnt marijuana in

defendant’s bedroom and saw drug paraphernalia in an

open drawer. Consequently, defendant was arrested for

possession of narcotics and paraphernalia.

Robert Krist, a detective with the Warren Police

Department, was assigned as the co-officer-in-charge

and investigated defendant’s background. He learned

that defendant had been convicted in Illinois of charges

relating to other sexual conduct involving minors. Sub-

sequently, a search warrant for defendant’s home was

380 294 M

ICH

377 [Oct

obtained and executed, resulting in the seizure of a

laptop, a video camera, five Hi8 tapes for the video

camera, and nudist videotapes.

As part of this investigation, Krist worked with

Donald Raymo, a federal agent with the Department of

Homeland Security in the cybercrimes division, which

typically investigates child-pornography allegations.

Raymo had been investigating a person named Bryan

Brown. When he learned defendant was the subject of a

criminal sexual behavior investigation, Raymo agreed

to engage in a joint investigation, offering to process the

electronic evidence related to this case. According to

Raymo, one of the videos seized from defendant’s home

included a 10-minute segment that constituted child

pornography; that section of the video was located

midway through the tape and was preceded by a black

screen, indicating that it had been taped over. It was

followed by footage of a wedding. This tape was played

for the jury at trial.

At trial, MO testified that defendant put his “private

parts” in hers and that it felt bad when he did. MO

indicated this happened in her mother’s bed. However,

MO could not recall ever seeing defendant with a

camera and denied making a movie with defendant.

During the trial, defendant’s Illinois convictions for

sexual misconduct involving minors were introduced

without objection. In addition, the prosecution intro-

duced the testimony of KD, who had been coached by

defendant as a gymnastics student in 1997 when she

was approximately five years old. KD testified that

defendant would grab her and pull her close and then

put his hand underneath her leotard and touch her

vaginal area on the outside.

Defendant testified on his own behalf. He described

his relationship with MO’s mother and MO as a “[v]ery

2011] P

EOPLE V

ROWN

381

loving family” and said that MO was the “daughter [he]

always wished [he] had.” Defendant testified he never

thought about MO sexually. He denied putting his

“privates” in MO’s and further denied ever having MO

perform fellatio on him. Defendant acknowledged that

he had previously been a gymnastics teacher in Illinois

and had pleaded guilty with respect to the convictions

introduced earlier. He denied being sexually attracted

to five-year-old girls or children in general. Defendant

stated that it was a coincidence that MO was close in

age to the girls involved in his prior convictions.

II. PROSECUTORIAL MISCONDUCT

First, defendant claims that the prosecution engaged

in prosecutorial misconduct. We disagree.

In order to preserve a claim of prosecutorial miscon-

duct for appellate review, a defendant must have timely

and specifically objected below, unless objection could

not have cured the error. People v Unger, 278 Mich App

210, 234-235; 749 NW2d 272 (2008). Defendant did not

object at trial to Krist’s or Raymo’s testimony related to

the federal investigation of defendant. Nor did defen-

dant object to any of the testimony related to defen-

dant’s arrest for possession of child pornography. Fi-

nally, defendant did not object to the prosecutor’s

questions and statements that defendant characterizes

on appeal as arguing that defendant is a pedophile.

Thus, this issue was not preserved. Unpreserved claims

of prosecutorial misconduct are reviewed for plain error

affecting substantial rights. People v Thomas, 260 Mich

App 450, 453-454; 678 NW2d 631 (2004).

The test of prosecutorial misconduct is whether the

defendant was denied a fair and impartial trial. People v

Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007).

Prosecutorial misconduct issues are decided on a case-

382 294 M

ICH

377 [Oct

by-case basis, and the reviewing court must examine

the record and evaluate a prosecutor’s remarks in

context. Thomas, 260 Mich App at 454.

Defendant first argues that he was denied a fair trial

when the prosecutor elicited testimony from Krist and

Raymo indicating he was the subject of a federal child-

pornography investigation. Defendant specifically argues

that this evidence was irrelevant and served only to paint

defendant as a bad man by implying that he was the target

of a federal investigation into child pornography.

Evidence is relevant if it has “any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less

probable than it would be without the evidence.” MRE

401. This is a broad definition, allowing the admission

of evidence that is helpful in throwing light on any

material point. People v Aldrich, 246 Mich App 101,

114; 631 NW2d 67 (2001). Despite this broad definition,

that Raymo may have been investigating defendant

relative to child-pornography activity should have no

bearing on a determination whether defendant commit-

ted the charged offense. Thus, this evidence could be

characterized as irrelevant. However, a prosecutor’s

good-faith effort to admit evidence does not constitute

misconduct. Dobek, 274 Mich App at 70. Even if the

evidence could be characterized as irrelevant, defen-

dant has not established bad faith.

Defendant next argues that the prosecutor engaged in

misconduct by injecting other acts evidence for the pur-

pose of showing that defendant had the propensity to

commit crimes. He takes issue with references to his

arrest for possession of marijuana and drug parapherna-

lia. Defendant specifically argues that the subject of drugs

tends to inflame the passions of a jury and thus was

unfairly prejudicial. Evidence is unfairly prejudicial when

2011] P

EOPLE V

ROWN

383

it presents a danger that marginally probative evidence

will be given undue or preemptive weight by the jury.

People v Ortiz, 249 Mich App 297, 306; 642 NW2d 417

(2001). In light of the nature of the charge defendant faced

at trial and evidence of previous instances of child-sexual

abuse, the argument that there was a danger the jury

would give undue weight to defendant’s involvement in

drug use is unpersuasive. Regardless, defendant has not

shown that the prosecutor was motivated by bad faith. See

Dobek, 274 Mich App at 70.

Defendant finally argues that he was a denied a fair

trial when the prosecutor argued he must have commit-

ted the charged offense because he was a pedophile.

This argument is without merit. A review of the record

demonstrates that the prosecutor never referred to

defendant as a “pedophile.” Thus, defendant’s discus-

sion of the diagnostic criteria necessary for such a

diagnosis is superfluous.

In any event, even if this Court were to conclude that

the prosecutor engaged in misconduct, defendant would

not be entitled to a reversal of his conviction. Defendant

cannot show that “the plain, forfeited error resulted in

the conviction of an actually innocent defendant

or...seriously affect[ed] the fairness, integrity or pub-

lic reputation of judicial proceedings independent of the

defendant’s innocence.” People v Carines, 460 Mich 750,

763-764; 597 NW2d 130 (1999) (quotation marks and

citation omitted) (alteration in Carines). The testimony

provided at trial by MO, coupled with the footage shown

to the jury, which defendant conceded depicted himself

and MO, strongly supports the verdict.

III. ADMISSION OF EVIDENCE

Next, defendant claims that the trial court denied

him a fair trial by failing to exercise its duty to ensure

384 294 M

ICH

377 [Oct

that the challenged evidence was not more prejudicial

than probative. We disagree.

A trial court’s decision to admit or exclude evidence

is reviewed for an abuse of discretion. Aldrich, 246 Mich

App at 113. An abuse of discretion occurs when the trial

court chooses an outcome that falls outside the permis-

sible range of principled outcomes. People v Babcock,

469 Mich 247, 269; 666 NW2d 231 (2003).

At trial, the jury heard testimony from defendant’s

former gymnastics student that he had improperly

touched her when she was five years old. The jury was

also informed that defendant had pleaded guilty to four

counts of sexually abusive activity involving minors.

This evidence was introduced pursuant to both MRE

404(b) and MCL 768.27a.

MRE 404(b)(1) provides as follows:

Evidence of other crimes, wrongs, or acts is not admis-

sible to prove the character of a person in order to show

action in conformity therewith. It may, however, be admis-

sible for other purposes, such as proof of motive, opportu-

nity, intent, preparation, 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.

MRE 404(b) is a rule of inclusion rather than a rule of

exclusion. People v Katt, 248 Mich App 282, 303; 639

NW2d 815 (2001). As such, evidence of other crimes,

wrongs, or acts is admissible under MRE 404(b)(1) if

such evidence is (1) offered for a proper purpose, (2)

relevant under MRE 402 to a fact of consequence at

trial, and (3) the danger of unfair prejudice does not

substantially outweigh the probative value of the evi-

dence. People v Knox, 469 Mich 502, 509; 674 NW2d 366

(2004).

2011] P

EOPLE V

ROWN

385

MCL 768.27a provides in pertinent part that, “in a

criminal case in which the defendant is accused of

committing a listed offense against a minor, evidence

that the defendant committed another listed offense

against a minor is admissible and may be considered for

its bearing on any matter to which it is relevant.” MCL

768.27a(1). “A defendant’s propensity to commit crimi-

nal sexual behavior can be relevant and admissible

under the statutory rule to demonstrate the likelihood

of the defendant committing criminal sexual behavior

toward another minor.” People v Petri, 279 Mich App

407, 411; 760 NW2d 882 (2008). However, the court

must still employ the balancing test of MRE 403. See

People v Mann, 288 Mich App 114, 118 n 12; 792 NW2d

53 (2010).

Defendant primarily argues that the challenged evi-

dence should have been excluded because the trial court

“[a]bdicated” its duty to evaluate and balance the

probative value of the proposed evidence against its

prejudicial effect in deciding whether to admit it. A

review of the record demonstrates that this claim

cannot succeed.

The trial court specifically recognized its duty to

weigh the probative value of defendant’s past convic-

tions against the potential for unfair prejudice, and it

determined that the record before it provided no reason

to exclude the evidence. Defendant’s argument that the

trial court failed to appropriately analyze the proffered

evidence is without merit.

Defendant also argues that KD’s testimony describ-

ing defendant’s conduct toward her was not sufficiently

similar to the charged conduct. A showing of similarity

might be required if the evidence had simply been

admitted pursuant to MRE 404(b). However, this argu-

ment fails to recognize that the evidence was also

386 294 M

ICH

377 [Oct

admitted under MCL 768.27a. Moreover, the testimony

indicated that defendant targeted girls of MO’s specific

age and accordingly, was arguably more probative than

prejudicial.

Likewise, defendant’s intimation that the length of

time between his conduct toward KD and the charged

offense should have been a factor in determining its

admissibility is not persuasive. MCL 768.27a does not

contain a temporal limitation. The remoteness of the

other act affects the weight of the evidence rather than

its admissibility. People v McGhee, 268 Mich App 600,

611–612; 709 NW2d 595 (2005).

IV. EFFECTIVE ASSISTANCE OF COUNSEL

Next, defendant claims that he was denied the effec-

tive assistance of counsel when trial counsel failed to

object to misconduct on the part of the prosecution. We

disagree.

A claim of ineffective assistance of counsel presents a

mixed question of law and fact. People v LeBlanc, 465

Mich 575, 579; 640 NW2d 246 (2002). This Court

reviews a trial court’s findings of fact, if any, for clear

error, and reviews de novo the ultimate constitutional

issue arising from an ineffective assistance of counsel

claim. Id. However, this Court’s review of unpreserved

claims of ineffective assistance of counsel is limited to

mistakes apparent on the record. People Matuszak, 263

Mich App 42, 48; 687 NW2d 342 (2004).

To prevail on a claim of ineffective assistance of

counsel, defendant must show that (1) counsel’s perfor-

mance fell below an objective standard of reasonable-

ness under prevailing professional norms, (2) there is a

reasonable probability that, but for counsel’s error, the

result of the proceedings would have been different, and

(3) the resultant proceedings were fundamentally un-

2011] P

EOPLE V

ROWN

387

fair or unreliable. People v Rodgers, 248 Mich App 702,

714; 645 NW2d 294 (2001). Defendant must also over-

come a strong presumption that counsel’s actions were

the product of sound trial strategy. People v Carbin, 463

Mich 590, 600; 623 NW2d 884 (2001).

Defendant’s claim that he was denied the effective

assistance of counsel is premised on his assertion that

the prosecution engaged in misconduct to which coun-

sel posed no objection. The alleged misconduct centered

on the admission of evidence pertaining to the federal

investigation of child pornography and evidence of drug

and drug paraphernalia possession. It is noteworthy

that defendant’s ineffective assistance claim is not

premised on the failure to object to this evidence, but on

the failure to assert that its elicitation constituted

prosecutorial misconduct. Defendant has not estab-

lished that the prosecutor engaged in misconduct. Ac-

cordingly, it is doubtful that an objection on this ground

would have been fruitful. People v Snider, 239 Mich App

393, 425; 608 NW2d 502 (2000) (stating that defense

counsel is not required to advocate a meritless position).

However, even if this Court were to agree that trial

counsel should have objected to any of the alleged

instances of misconduct, defendant is not entitled to a

new trial when he cannot demonstrate that the alleg-

edly deficient performance affected the outcome of trial.

In light of the overwhelming evidence establishing

defendant’s guilt of the charged offense, notably MO’s

testimony and the video footage that defendant con-

cedes depicts him and MO, defendant’s claim cannot

succeed.

V. RIGHT TO TRIAL

Next defendant argues that he was punished by the

trial court for exercising his right to trial. We disagree.

388 294 M

ICH

377 [Oct

A sentencing court cannot base its sentence on a

defendant’s decision to exercise his constitutional right

to a jury trial. People v Earegood, 383 Mich 82, 85; 173

NW2d 205 (1970). However, it is not per se unconstitu-

tional for a defendant to receive a higher sentence

following a jury trial than he would have received had

he pleaded guilty. People v Rivers, 147 Mich App 56,

60-61; 382 NW2d 731 (1985). In this case, the trial court

was required by statute to impose the sentence defen-

dant received. Accordingly, the sentence cannot be

viewed as punishment for defendant’s decision to pro-

ceed to trial, but rather, must be viewed as the risk he

faced by not accepting a plea deal.

VI. LIFE IMPRISONMENT FOR CSC-I

Finally, defendant claims that his sentence of life

imprisonment without the possibility of parole consti-

tutes cruel and unusual punishment or that, in the

alternative, his sentence constitutes an impermissible

departure from the sentencing guidelines. We disagree

with both arguments.

Defendant failed to challenge the constitutionality of

MCL 750.520b(2)(c) below. Thus, this claim is not

preserved for appellate review. People v Eccles, 260 Mich

App 379, 385; 677 NW2d 76 (2004). This Court gener-

ally reviews constitutional questions de novo. People v

Conat, 238 Mich App 134, 144; 605 NW2d 49 (1999).

However, because this issue is unpreserved it will be

reviewed for plain error affecting defendant’s substan-

tial rights. Carines, 460 Mich at 763-764. Questions of

statutory interpretation are reviewed de novo. People v

Schaub, 254 Mich App 110, 114-115; 656 NW2d 824

(2002).

Defendant’s sentence was imposed pursuant to MCL

750.520b(2)(c), which mandates the penalty of life im-

2011] P

EOPLE V

ROWN

389

prisonment without the possibility of parole for a de-

fendant over the age of 17 who commits CSC-I involving

a victim less than 13 years of age when the defendant

was previously convicted of a similar sex crime with a

victim less than 13 years of age. Legislatively mandated

sentences are presumptively proportional and presump-

tively valid. People v Williams, 189 Mich App 400, 404;

473 NW2d 727 (1991). In deciding if punishment is

cruel or unusual, this Court looks to the gravity of the

offense and the harshness of the penalty, comparing the

punishment to the penalty imposed for other crimes in

this state, as well as the penalty imposed for the same

crime in other states. People v Poole, 218 Mich App 702,

715; 555 NW2d 485 (1996).

In People v Hall, 396 Mich 650, 657-658; 242 NW2d

377 (1976), the Supreme Court held that life without

the possibility of parole is not cruel and unusual pun-

ishment. However, this ruling was made with respect to

the crime of felony murder. Id.; see also People v

Launsburry, 217 Mich App 358, 364; 551 NW2d 460

(1996) (concluding that it was not a cruel or unusual

punishment to sentence a juvenile to prison for life

without parole for first-degree murder); People v

Fernandez, 427 Mich 321, 335; 398 NW2d 311 (1986)

(concluding that life imprisonment without parole is

not cruel and unusual punishment for conspiracy to

commit first-degree murder). These cases are, however,

distinguishable from the issue before this Court be-

cause murder and criminal sexual conduct are distinctly

different types of crimes.

Our Supreme Court has held that the graduated

system of punishment adopted by the Legislature dem-

onstrates a careful consideration and balancing of the

age of the victim and the nature of the sexual conduct.

People v Cash, 419 Mich 230, 242-243; 351 NW2d 822

390 294 M

ICH

377 [Oct

(1984). The fact that the Legislature adopted harsher

punishment for those crimes involving penetration of a

victim under the age of 13, even for a first-time offense,

indicates that such crimes are indeed grave.

In addition, a number of states authorize or mandate

life in prison without parole for similar offenses. Texas

requires a mandatory life sentence without the possi-

bility of parole for repeat sexual offenders involving a

victim who is a minor. See Tex Penal Code Ann

12.42(c)(4). Similarly, Louisiana mandates life in prison

at hard labor without the possibility for parole for

aggravated rape, which includes penetration of a minor,

even for a first time offense. See La Rev Stat Ann

14:42(D)(1).

Montana also requires mandatory life

imprisonment without parole for a repeat sexual of-

fender if a serious bodily injury is inflicted. Mont Code

Ann 45-5-503(3)(c)(ii). Oklahoma requires punishment

by life in prison without parole for a repeat offender

who commits “forcible anal or oral sodomy, rape, rape

by instrumentation, or lewd molestation of a child

under fourteen (14) years of age....”Okla Stat tit 21,

§ 843.5(K). South Carolina requires life in prison if the

criminal sexual conduct involves a statutory aggravat-

ing circumstance. SC Code Ann 16-3-655(D). Florida

requires life in prison without parole for a recidivist

child sexual offender. Fla Stat 775.082(3)(a)(4)(b). Geor-

gia authorizes life in prison without parole for rape. Ga

Code Ann 16-6-1. Notably, in Norris v Morgan, 622 F3d

1276, 1295-1296 (CA 9, 2010), the court concluded that

Such crimes are punishable by imprisonment for life or any term of

years, but not less than 25 years. MCL 750.520b(2)(b).

In Kennedy v Louisiana, 554 US 407; 128 S Ct 2641; 171 L Ed 2d 525

(2008), the United States Supreme Court held that the Eighth Amend-

ment bars Louisiana from imposing the death penalty, as authorized by

La Rev Stat Ann 14:42(D)(2), for the rape of a child when the crime did

not result, and was not intended to result, in the victim’s death.

2011] P

EOPLE V

ROWN

391

a sentence of life in prison without parole for a recidi-

vist child sex offender was not a violation of the Eight

Amendment protection against cruel and unusual pun-

ishment. See also Adaway v Florida, 902 So 2d 746 (Fla,

2005) (concluding that a sentence of life without parole

for a sex offender that victimized a child did not violate

Florida’s constitutional ban on cruel and unusual pun-

ishment).

In light of the foregoing, defendant has failed to

overcome the presumption that his legislatively man-

dated sentence was proportional and valid in this case.

Williams, 189 Mich App at 404.

Defendant’s claim that his sentence constituted a

departure from the sentencing guidelines without being

supported by substantial and compelling reasons is

without merit. Although the sentencing information

report related to this case included a recommendation

for a minimum sentence range of 126 to 210 months in

prison, defendant’s argument fails to recognize that the

sentencing guidelines range does not apply to crimes for

which there is a mandatory sentence. MCL 769.34(5).

Moreover, imposition of a mandated sentence does not

constitute a departure from the guidelines. See People v

Izarraras-Placante, 246 Mich App 490, 497; 633 NW2d

18 (2001). Thus, it is not necessary to address defen-

dant’s argument that the trial court failed to provide

substantial and compelling reasons to justify a depar-

ture in this case.

Affirmed.

WENS

,P.J., and J

ANSEN

and O’C

ONNELL

, JJ., con-

curred.

392 294 M

ICH

377 [Oct

PUGH v ZEFI

Docket No. 299034. Submitted October 12, 2011, at Detroit. Decided

October 20, 2011, at 9:05 a.m.

Johnetta Pugh brought an action in the Oakland Circuit Court

against Fran Zefi and Farmers Insurance Exchange, seeking to

recover underinsured-motorist benefits from Farmers. Pugh had

suffered injuries in a car accident while a passenger in a car owned

by a third party and insured by Farmers. The underinsured-

motorist provision of the policy excluded coverage for bodily

injuries sustained by a person while occupying the car when it was

being used to carry persons or property for a charge; the exclusion

did not apply to shared-expense carpools, however. The owner of

the car drove Pugh and a colleague to work in exchange for a

weekly payment of $20. The owner of the car maintained that the

arrangement was a carpool and that the money had been used to

help pay for gas. Pugh did not have a driver’s license and did not

take a turn driving the group to work. Farmers moved for partial

summary disposition, arguing that because Pugh had hired the

car’s owner to drive her around, the carry-for-charge exclusion in

the policy barred Pugh’s recovery of underinsured-motorist ben-

efits. The court, Daniel Patrick O’Brien, J., denied Farmer’s

motion, concluding that the driving arrangement could fit the

definition of a carpool. Farmers appealed.

The Court of Appeals held:

For purposes of interpreting the term when not defined by the

insurance policy, the phrases “shared-expense carpool” and “carpool”

are defined as requiring only that the associated driving costs be

shared, not cars. There is no need for members of the carpool to know

each other socially and no requirement that the members of the

carpool work at the same exact location. Because Pugh’s weekly

payment was used by the car’s owner to help defray the cost of

gasoline, and not to generate a profit, Pugh was not being carried for

a charge within the meaning of the policy’s exclusion. The exclusion

for bodily injury sustained while carrying persons or property for a

charge had accordingly not applied, and the trial court properly

denied Farmers’ motion for partial summary disposition.

Affirmed.

2011] P

UGH V

EFI

393

NSURANCE —

NDERINSURED

-M

OTORIST

ENEFITS —

XCLUSIONS —

HARED

XPENSE

ARPOOLS

For purposes of interpreting the term when not defined by the

automobile insurance policy, the phrases “carpool” or “shared-

expense carpool” describe an arrangement wherein the associated

driving costs are shared, but not necessarily the cars; there is no

need for members of the carpool to know each other socially and no

requirement that the members of the carpool work at the same

exact location.

Liss & Shapero (by Anthony D. Shapero and Scott M.

Mitnick) for Johnetta Pugh.

Cory & Associates (by Andrew R. Biscoglia) for

Farmers Insurance Exchange.

Before: O

WENS

,P.J., and J

ANSEN

and O’C

ONNELL

,JJ.

URIAM

. Defendant Farmers Insurance Exchange

(defendant) appeals by right, challenging the circuit

court’s denial of its motion for partial summary dispo-

sition on the issue of underinsured-motorist coverage.

We affirm.

Defendant insures a vehicle owned by Orlander

Meadows, Jr., which was involved in an accident while

Plaintiff argues that this Court lacks jurisdiction over the present

appeal because the parties “have stipulated to place this matter into

binding arbitration.” We agree with plaintiff’s assertion that the parties

stipulated that the underinsured motorist claim “will be placed into

Binding Arbitration.” But plaintiff fails to mention that the parties’

stipulation also provided that “[t]his does not preclude [defendant] from

pursuing its appellate rights.” As plaintiff acknowledges in her brief on

appeal, the circuit court’s order of dismissal, from which defendant has

appealed, was a final order appealable by right. Moreover, as noted, the

stipulation specifically reserved defendant’s right to appeal on the issue

of underinsured-motorist coverage. Pursuant to MCR 7.203(A)(1), this

Court has jurisdiction over an appeal of right filed by an aggrieved party

from a final order of the circuit court. Defendant was clearly aggrieved by

the circuit court’s denial of its partial motion for summary disposition,

and plaintiff’s jurisdictional challenge is therefore without merit.

394 294 M

ICH

393 [Oct

plaintiff was a passenger. Plaintiff suffered injuries

and sought underinsured-motorist benefits from de-

fendant. The underinsured-motorist provision of the

insurance policy included an exception providing:

“This coverage does not apply to bodily injury

sustained by a person...[w]hile occupying your

insured car when used to carry persons or property

for a charge. This exclusion does not apply to shared-

expense car pools.”

Meadows drove plaintiff and a colleague to work in

his vehicle, in exchange for which plaintiff gave Mead-

ows approximately $20 a week. Meadows maintained

that he was not hired and that he had never entered

into a contract by which money would be exchanged for

his driving services. Instead, Meadows maintained, he

was involved in a carpool. Meadows argued that he

never charged or billed plaintiff for his driving services,

but that plaintiff would occasionally “chip in” money to

help pay for gasoline. Meadows stated that any money

he collected “was used primarily for gas and was not

earned income.” Plaintiff had no driver’s license and

thus never took turns driving.

Defendant argued before the circuit court that plain-

tiff had “hired...Meadows...to drive her around”

and that she was accordingly not entitled to

underinsured-motorist benefits. Defendant maintained

that this was unequivocally a “carry for charge situa-

tion,” and not a carpool situation. The circuit court

ruled that the arrangement could fit into the definition

of a carpool and therefore denied defendant’s motion

for partial summary disposition.

We review de novo the circuit court’s grant or denial

of a motion for summary disposition. Woodman v Kera

LLC, 486 Mich 228, 236; 785 NW2d 1 (2010). Summary

disposition is appropriate under MCR 2.116(C)(10) if

there is no genuine issue of material fact except as to

2011] P

UGH V

EFI

395

the amount of damages and the moving party is entitled

to full or partial judgment as a matter of law. The court

must consider the pleadings, affidavits, depositions,

admissions, and other evidence in a light most favorable

to the nonmoving party. Radtke v Everett, 442 Mich 368,

374; 501 NW2d 155 (1993).

Viewing the documentary evidence in a light most

favorable to plaintiff, the circuit court correctly con-

cluded that the arrangement at issue in this case

qualified as a “shared-expense car pool[]” within the

meaning of the insurance policy.

Preliminarily, we note that this case involves the

interpretation of Meadows’s insurance policy only. It

does not concern the no-fault act because underinsured-

motorist coverage is optional and thus solely contrac-

tual. Rory v Continental Ins Co, 473 Mich 457, 465-466;

703 NW2d 23 (2005). Insurance contracts are inter-

preted like any other contract, and their construction

and interpretation are questions of law for the court.

Farm Bureau Mut Ins Co v Buckallew, 246 Mich App

607, 611; 633 NW2d 473 (2001). The court will read the

contract as a whole and enforce the written terms

according to their plain and ordinary meaning. Id.

“Clear and specific exclusionary clauses must be given

effect, but are strictly construed in favor of the in-

sured.” McKusick v Travelers Indemnity Co, 246 Mich

App 329, 333; 632 NW2d 525, 528 (2001).

The insurance policy at issue in the present case does

not define “car pools” or “shared-expense car pools.”

Therefore, it is appropriate to consult a dictionary to

determine the ordinary or commonly used meaning of

these terms. Morinelli v Provident Life & Accident Ins

Co, 242 Mich App 255, 262; 617 NW2d 777 (2000).

The parties disagree concerning the definition of “car

pool” and whether plaintiff was being “carr[ied]...for

396 294 M

ICH

393 [Oct

a charge” in this case. Defendant argues that in order

for a given arrangement to qualify as a “car pool,” all

the parties involved must take turns driving. Defendant

further argues that plaintiff was being carried for a

charge because she paid Meadows approximately $20 a

week to drive her to work. In contrast, plaintiff argues

that a given arrangement can qualify as a car pool even

if the parties do not share driving responsibility. Plain-

tiff also contends that Meadows, plaintiff, and the other

passenger in this case were merely “shar[ing] in the

expenses.” For the reasons that follow, we agree with

plaintiff.

It is true that Random House Webster’s College

Dictionary (1997) defines a “carpool” as “an arrange-

ment among automobile owners by which each in turn

drives the others to and from a designated place.”

However, Ballentine’s Law Dictionary (3d ed) clarifies

that a “car pool” can also be “[a]n arrangement

whereby two or more persons ride to work...on a

share-the-expense agreement if only the car of one is

used.” Courts in other jurisdictions that have inter-

preted analogous insurance policy language have found

no requirement that carpool participants take turns

driving. For instance, in Aetna Cas & Surety Co v

Mevorah, 149 Misc 2d 1011, 1013-1015; 566 NYS2d 842

(1991), the court considered a situation in which a

driver regularly drove several individuals to work, al-

ways in the driver’s own van. The Mevorah court

explained that

a fair and reasonable definition of the term ‘share-the-

expense’ car pool extends to the situation herein, wherein

[the driver] traveled to work on a daily basis and trans-

ported a small group of approximately eight regular riders,

friends and nonfriends, over a period of time, charging

them a sufficient amount to cover the expenses incurred

2011] P

UGH V

EFI

397

for gas, tolls, insurance and other expenses incident to

their use of the van. [Id. at 1015.]

The court further noted that the driver “did not solicit

the general public as passengers on her van, and her

uncontroverted testimony indicated that her use of the

van was not a profit-making or motivated enterprise.”

Id. at 1015-1016. Similarly, in Gen Accident Ins Co of

America v Gonzales, 86 F3d 673, 674 (CA 7, 1996), the

United States Court of Appeals for the Seventh Circuit

considered an arrangement in which one man drove

four of his coworkers to work each day, always in his

own car, for a daily fee of $5 per passenger. The

Gonzales court observed that even though the driver

charged his passengers for the trip, this charge “did not

exceed [the driver’s] actual expenses” and was not even

enough to “cover the expenses borne by [the driver].”

Id. at 678-679. The Gonzales court ultimately concluded

that the arrangement in question was “a ‘share-the-

expense car pool’ type of arrangement” and “thus an

exception to the policy exclusion against carrying per-

sons for a fee.” Id. at 679.

The passengers in Mevorah and Gonzales rode in the

same driver’s vehicle each day and did not take turns

driving their own cars. Moreover, although the passen-

gers in Mevorah and Gonzales paid a regular fee to the

driver, both the Mevorah court and the Gonzales court

ultimately concluded that the arrangement at issue

qualified as a “share-the-expense car pool.” Mevorah,

149 Misc 2d at 1016; Gonzales, 86 F3d at 679. Like the

courts in Mevorah and Gonzales, we conclude that

“shared-expense car pools” require only the sharing of

costs—not the sharing of cars. We also conclude that,

because plaintiff’s weekly payment of $20 was used

merely to help defray the cost of gasoline, and not to

398 294 M

ICH

393 [Oct

generate a profit for Meadows, plaintiff was not being

“carr[ied]...foracharge” within the meaning of the

insurance policy.

Nor are we persuaded by defendant’s argument that

a different result is compelled by our Supreme Court’s

decision in Burgess v Holder, 362 Mich 53; 106 NW2d

379 (1960). The insurance policy at issue in Burgess

contained an exclusion providing that “ ‘[t]he company

shall not be liable for any loss or claim arising while the

automobile shall be rented or used for the transporta-

tion of passengers for a specific charge.’ ” Id. at 54-55.

Turning back to the present case, the fact that plaintiff

“chip[ped] in” the same amount of money each week to

help defray the cost of gasoline does not in any way

establish that Meadows charged plaintiff a fixed

amount for his services, especially given Meadows’s

explicit testimony to the contrary. Indeed, as this Court

has explained, “evidence of payment by a passenger to a

driver, in and of itself, is not sufficient to characterize

the passenger as a matter of law as a passenger for

hire.” Perlmutter v Whitney, 60 Mich App 268, 275; 230

NW2d 390 (1975).

We also reject defendant’s argument that a given

arrangement does not qualify as a “car pool” unless the

persons involved are “friends” or “coworkers.” For

example, the Mevorah court classified the arrangement

at issue in that case as a carpool even though some of

the passengers were the driver’s “nonfriends.” Mevo-

rah, 149 Misc 2d at 1012, 1015. Despite defendant’s

assertion to the contrary, there is simply no require-

ment that members of a carpool know one another

We further note that participants in a “share-the-expense” carpool

need not share costs with absolute, mathematical certainty. Shared-

expense carpools can encompass other, less formal arrangements. Mevo-

rah, 149 Misc 2d at 1015.

2011] P

UGH V

EFI

399

socially. See Dutcher v Rees, 331 Mich 215, 219; 49

NW2d 146 (1951) (concluding that “[t]he fact that [the

parties] had not met each other until the evening in

question does not in itself make the tender of a ride a

commercial transaction”).

Lastly, defendant takes issue with the fact that

plaintiff and Meadows were not going to the same exact

destination. Many carpool arrangements involve per-

sons who work at different locations in the same city or

general geographic area. While the general location is

likely the same, the precise destination for each mem-

ber of a carpool need not be identical. This argument

lacks merit.

In sum, we conclude that plaintiff and Meadows were

participants in a shared-expense carpool. Accordingly,

the insurance policy’s exclusion for “bodily injury sus-

tained...[w]hile...carry[ing] persons or property for

a charge” did not apply in this case. The circuit court

properly denied defendant’s motion for partial sum-

mary disposition with respect to the issue of

underinsured-motorist coverage.

In light of this conclusion, we need not address the

remaining arguments raised by the parties on appeal.

Affirmed. As the prevailing party, plaintiff may tax

costs pursuant to MCR 7.219.

WENS

,P.J., and J

ANSEN

and O’C

ONNELL

, JJ., con-

curred.

Although not specifically called upon to define the term carpool, this

Court has previously characterized an arrangement in which two college

students paid $25 for a ride home from a third student with whom they

were “previously unacquainted” as a “carpooling” arrangement. Thomas

v Tomczyk, 142 Mich App 237, 239, 241; 369 NW2d 219 (1985).

400 294 M

ICH

393 [Oct

HOPKINS v DUNCAN TOWNSHIP

Docket No. 300170. Submitted October 11, 2011, at Marquette. Decided

October 20, 2011, at 9:10 a.m. Leave to appeal denied, 491 Mich

908.

Douglas Hopkins brought an action in the Houghton Circuit Court,

alleging that Duncan Township violated Michigan’s Freedom of

Information Act (FOIA), MCL 15.231 et seq., when defendant

failed to produce handwritten notes taken during meetings of the

Duncan Township Board of Trustees by a board member for his

personal use in response to plaintiff’s FOIA request. The court,

Charles R. Goodman, J., granted summary disposition in favor of

defendant, holding that the notes were not part of the public

record and, thus, the notes were not subject to disclosure under

FOIA. Plaintiff appealed.

The Court of Appeals held:

Under FOIA, a public body must disclose all public records

which are not specifically exempt under the act. A writing can

become a public record after its creation if used by a public body in

the performance of an official function, regardless of who prepared

it. In this case, a member of the township’s board of trustees

habitually took notes in a personal journal to enhance his memory

of events, including notes regarding township board meetings. The

notes had not been read by other officials, had not been consulted

by the member in the course of the board’s decision-making, had

not been used by the board, and had been retained at the

member’s sole discretion. Accordingly, the notes had not been used

by a public body in the performance of an official function and had

not become a public record subject to disclosure. Instead, the notes

were personal in nature. The trial court properly granted sum-

mary disposition.

Affirmed.

ECORDS —

REEDOM OF

NFORMATION

CT —

ORDS AND

HRASES —

UBLIC

ECORDS —

ERSONAL

OTES

Under the Freedom of Information Act, a public body must disclose

all public records which are not specifically exempt under the act;

a writing can become a public record after its creation if used by a

public body in the performance of an official function, regardless of

2011] H

OPKINS V

UNCAN

401

who prepared it; handwritten notes taken by a member of a

township board of trustees for his or her personal use, not

circulated among other board members, not used in the creation of

the minutes of any meetings, and retained or destroyed at the

member’s sole discretion are not public records subject to disclo-

sure under the act (MCL 15.232[e]).

Hahner Law Offices, P.C. (by Mikael G. Hahner), for

Douglas Hopkins.

Vairo, Mechlin & Tomasi, PLLC (by David R. Mech-

lin), for Duncan Township.

Before: S

TEPHENS

,P.J., and S

AWYER

and K. F. K

ELLY

JJ.

URIAM

. Plaintiff appeals as of right an order

granting summary disposition in favor of defendant on

plaintiff’s claim that defendant violated Michigan’s

Freedom of Information Act (FOIA), MCL 15.231 et seq.

We affirm, holding that handwritten notes of a town-

ship board member taken for his personal use, not

circulated among other board members, not used in the

creation of the minutes of any of the meetings, and

retained or destroyed at his sole discretion, are not

public records subject to disclosure under FOIA.

I. THE PARTIES’ PLEADINGS

On March 18, 2010, plaintiff filed a complaint alleg-

ing a FOIA violation. Plaintiff, a Duncan Township

resident, claimed that defendant had failed to produce

records plaintiff had requested on September 9, 2009,

specifically “Copies of any notes taken by any elected

official during any Duncan Township Board or Zoning

Board meetings over the past 12 months[.]” Although

defendant claimed that no zoning board meetings had

been held, it did not address meetings held by the

402 294 M

ICH

401 [Oct

Duncan Township Board of Trustees. Plaintiff alleged

that a videotape revealed board members taking notes

during the meetings.

Defendant filed a motion for summary disposition

pursuant to MCR 2.116(C)(10). Defendant provided the

affidavits of the township board members, which re-

vealed that only one individual—Frank Pentti—took

notes at the meeting. Because the notes were strictly for

his personal use, kept in his personal journal, not

shared with other members of the board, and never

placed in defendant’s files, defendant argued that Pent-

ti’s notes did not constitute “public records.” MCL

15.232(e). Pentti specifically averred that “[a]ny notes

that I may have taken during Township Meetings were

written in my personal diary, which also includes notes

of meetings that [I] had with other groups such a [sic]

local historical society.”

Plaintiff filed a response to defendant’s motion, ar-

guing that Pentti’s notes were, in fact, public records.

Pentti acknowledged that he took notes at the meetings,

and video footage from such meetings confirmed that he

went back into his notes to advise the board of his

recollection of what they had discussed at earlier meet-

ings. Additionally, plaintiff argued, defendant never

claimed that the notes were exempt and never specifi-

cally denied plaintiff’s FOIA request, as was required.

Plaintiff asserted that defendant had failed to prove

that defendant’s refusal to disclose the notes was cor-

rect. Included in plaintiff’s response were DVDs of

defendant’s meetings for August, September, and Octo-

ber 2009.

At his deposition, Pentti testified that he was a

trustee on the Duncan Township Board of Trustees.

Pentti was also secretary of the Kenton Historical

Society. The township board had two trustees, a super-

2011] H

OPKINS V

UNCAN

403

visor, a clerk and a treasurer. The clerk conducted her

business from her residence and from a store that she

owned. The town’s records were held jointly with the

clerk and in the treasurer’s office, which consisted of a

desk and a chair in the Sidnaw town hall. There was

also a building next door to the town hall where other

“ancient” records were found, but “certainly, all active

township records would be either with the clerk or the

treasurer.” Pentti brought his notebook to the deposi-

tion, which he referred to as his personal diary. The

notebook contained a “mishmash of everything.” Pentti

did not use the notes in the performance of his duties as

a trustee; rather, “it’s something I started doing in

college; and I found out that if I write things down, they

stick—things stick with me better.” Pentti did not refer

to the notes in the course of participating in township

board meetings. He did not believe that he used the

notes for any purpose other than the “mnemonic thing.

I—seems that if I write it down, it goes in up here.”

Pentti saw other members jot down notes on copies of

budgets and similar memoranda, but had no idea what

the other board members did with their notes. Pentti

deposited copies of the budget, agenda, and other notes

in the garbage. Pentti did not believe that he ever

referred to his notes during a township meeting with

other board members, nor had he ever referred to his

notes in discussing matters with any citizen. He had

never been asked to refer to his notes by the clerk in

preparation of the minutes. During direct examination

by plaintiff’s attorney, Pentti testified:

Q. Okay. The notes that you make at the meetings,

you’re making those notes while you’re participating as a

trustee for Duncan Township, correct?

A. I would not say they’re an inherent part of my

participation; it’s just the way I have existed since college.

404 294 M

ICH

401 [Oct

Q. Okay.

A. I jot things down.

Q. But when you do that, you’re acting as a trustee of

the township?

A. At the board meeting, yes.

During cross-examination by defense counsel, Pentti

testified:

Q. Mr. Pentti, the preparation of your personal notes

that were made during these township board meetings,

were they prepared in any way in connection with either

your role or responsibilities as a member of the township

board.

A. No, I think they’re just personal notes.

At her deposition, Shirley Wittingen testified that

she was the township clerk. Wittingen also owned a

convenience store. She was responsible for bookkeep-

ing, recordkeeping, taking minutes of the meetings, and

running elections. All of the board’s files were kept in

Wittingen’s store. Some were in storage in a building

next to the town hall. When Wittingen got plaintiff’s

request for documents, she went into her files to see if

anything was there. She also asked the board members

whether they had any notes. Pentti “was the only one

that said that he had some notes. But they were his

personal notes; they were not in the files.” Wittingen

had never reviewed Pentti’s notes. Wittingen had not

received official training about FOIA, but had a refer-

ence book that she consulted. She admitted that she

never told plaintiff about Pentti’s notes because she

believed that they were not subject to disclosure.

David Johnson provided an affidavit, averring that

he had attended several township board meetings,

including those that took place in September and Octo-

2011] H

OPKINS V

UNCAN

405

ber 2009. Johnson witnessed Pentti “making notes in a

spiral bound notebook.” Additionally:

5. During one of the meetings I attended Skye Johnson

inquired of the Board whether her home was in compliance

and to what agencies she had been referred to.

6. At that meeting, I observed Frank Pentti refer to his

notebook and turn pages back and he told her the agencies

she was referred to.

II. HEARING ON DEFENDANT’S MOTION

At the motion hearing, defense counsel relied on

Howell Ed Ass’n MEA/NEA v Howell Bd of Ed, 287

Mich App 228; 789 NW2d 495 (2010), arguing that

Pentti’s notes were not public documents because they

were not stored or retained by the township in the

performance of an official function. Instead, plaintiff

sought disclosure of Pentti’s personal journal. Defen-

dant did not argue that the documents were exempt

from disclosure, but that they were not public in the

first place.

In response, plaintiff claimed there was never a

proper denial given; rather, defendant had made it

appear as if no notes existed. Plaintiff asked the court to

conduct an in camera review of Pentti’s notebook.

Plaintiff contended that because there was no central-

ized filing and recordkeeping system, defendant could

not argue that the documents needed to be under the

control of the township and that the heart of the matter

was that Pentti had taken notes in his official capacity

and the clerk was under an obligation to search for

them. Citing Walloon Lake Water Sys, Inc v Melrose

Twp, 163 Mich App 726; 415 NW2d 292 (1987), plaintiff

argued that an otherwise personal item may become a

public record.

406 294 M

ICH

401 [Oct

Defendant argued that an in camera review would

only be appropriate if the trial court first determined

that the notes were public records.

The trial court declined to review the notes in cam-

era. It ruled:

Here’s what I’m thinking; Your motion is a (C)(10)

motion. Um, I’m wondering if (C)(8)—I don’t think that

personal notes are public records. All right. Um, I think

personal notes are just that. Personal notes. They’re not

intended to be a public record. They’re intended to aid the

maker of the note for whatever reason, maybe doesn’t feel

like he’s got a good memory, or she’s got a good memory;

just a note taker. Some people are note takers, they’re

writing all the time.

***

And I don’t think that that person’s, um, the way they

function means that everything that they write down is all

of a sudden part of the public record. Um, the notes of

meetings that become a part of the record are the clerk’s.

That’s within the official duty of the clerk, so obviously

those minutes are public record. But someone who’s a

member of the board or whatever, and who’s saying–writes

down a note, ah, Mr. Smith from the audience indicated

he’s not for this ordinance, or whatever, just to keep track

so when he wants to talk about it later he can reference Mr.

Smith out there. I don’t think that becomes a public record.

That’s a record of an individual member for the individu-

al’s own personal use. I don’t think it’s in furtherance,

really, of the official business. And I think the Howell case

used that language. Um, where was that, in talking about

the emails they said, “However, the school district does not

assert that its backup system was purposely designed to

retain and restore personal emails, or that those emails

have some official function.” So I got the impression there

has to be some official function. And I don’t see an official

function to an individual member’s notes. It’s to assist that

individual member.

2011] H

OPKINS V

UNCAN

407

The trial court entered judgment in defendant’s favor.

Plaintiff now appeals as of right.

III. STANDARD OF REVIEW

Although the trial court made some indication that it

would entertain an MCR 2.116(C)(8) motion, it is clear

from the record that, in fact, the motion was granted

pursuant to MCR 2.116(C)(10) because the court had to

go beyond the mere pleadings in order to conclude that

the notes at issue were not subject to disclosure. See

Capitol Props Group, LLC v 1247 Center Street, LLC,

283 Mich App 422, 425; 770 NW2d 105 (2009). This

Court reviews de novo a trial court’s decision on a

motion for summary disposition. Latham v Barton

Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008).

Summary disposition under MCR 2.116(C)(10) is appro-

priate only when the moving party can demonstrate

there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law.

Rose v Nat’l Auction Group, 466 Mich 453, 461; 646

NW2d 455 (2002). This Court also reviews de novo a

trial court’s legal determination in a FOIA case. Herald

Co, Inc v Eastern Mich Univ Bd of Regents, 475 Mich

463, 470-472; 719 NW2d 19 (2006).

IV. STATUTORY LAW AND CASELAW

MCL 15.231(2) provides that

[i]t is the public policy of this state that all persons, except

those persons incarcerated in state or local correctional

facilities, are entitled to full and complete information

regarding the affairs of government and the official acts of

those who represent them as public officials and public

employees, consistent with this act. The people shall be

informed so that they may fully participate in the demo-

cratic process.

408 294 M

ICH

401 [Oct

Under FOIA, a public body must disclose all public

records that are not specifically exempt under the act.

MCL 15.233(1); Coblentz v City of Novi, 475 Mich 558,

571, 573; 719 NW2d 73 (2006). The exemptions are

specifically enumerated in MCL 15.243, but are inap-

plicable to this case because defendant does not claim

that the information sought was exempt from disclo-

sure; rather, defendant maintains that the information

was not a public record subject to disclosure, obviating

the need to address whether the information was pro-

tected by any of the enumerated exemptions.

MCL 15.232(e) defines “public record” as follows:

“Public record” means a writing prepared, owned, used,

in the possession of, or retained by a public body in the

performance of an official function, from the time it is

created. Public record does not include computer software.

This act separates public records into the following 2

classes:

(i) Those that are exempt from disclosure under [MCL

15.243].

(ii) All public records that are not exempt from disclo-

sure under [MCL 15.243] and which are subject to disclo-

sure under this act.

A “writing” includes all means of recording or retaining

meaningful content, including handwriting. MCL

15.232(h); Patterson v Allegan Co Sheriff, 199 Mich App

638, 639-640; 502 NW2d 368 (1993). A writing can

become a public record after its creation if possessed by

a public body in the performance of an official function,

or if used by a public body, regardless of who prepared

it. MacKenzie v Wales Twp, 247 Mich App 124, 129; 635

NW2d 335 (2001); Detroit News, Inc v Detroit, 204

Mich App 720, 723-724; 516 NW2d 151 (1994). Mere

possession of a record by a public body does not,

however, render it a public record; a record must be

2011] H

OPKINS V

UNCAN

409

used in the performance of an official function to be a

public record. Howell Ed Ass’n, 287 Mich App at 236.

At the heart of this case is whether Pentti’s notes

were taken in the performance of an official function. If

so, then the notes are subject to disclosure under FOIA.

The goal in interpreting a statute is to ascertain the

Legislature’s intent. Shinholster v Annapolis Hosp, 471

Mich 540, 548–549; 685 NW2d 275 (2004). The first step

in doing so is looking to the language used. Id. at 549.

Effect must be given to each word, reading provisions as

a whole, and in the context of the entire statute. Green

v Ziegelman, 282 Mich App 292, 301–302; 767 NW2d

660 (2009). If the language is clear and unambiguous,

the statute must be applied as written. Id. at 302. In

such instances, judicial construction is neither neces-

sary nor permitted. People v Shakur, 280 Mich App 203,

209; 760 NW2d 272 (2008). Further, because FOIA is a

prodisclosure statute, it must be broadly interpreted to

allow public access. Practical Political Consulting, Inc v

Secretary of State, 287 Mich App 434, 465; 789 NW2d

178 (2010).

Plaintiff relies on Walloon Lake, 163 Mich App 726,

as well as this Court’s unpublished opinion WDG In-

vestment Co, LLC v Mich Dep’t of Mgt & Budget,

unpublished opinion per curiam of the Michigan Court

of Appeals, issued October 25, 2002 (Docket No.

229950), in support of his position that Pentti’s per-

sonal notes were transformed into public documents.

In Walloon Lake, the plaintiff sought disclosure of a

personal letter that had been read into the record at a

township meeting. This Court concluded that because

the letter was read into the record at a public meeting

and its contents were considered by the township board,

it became a public record subject to disclosure under

FOIA. Walloon Lake, 163 Mich App at 729.

410 294 M

ICH

401 [Oct

Without opining as to what extent an outside commu-

nication to an agency constitutes a public record, we

believe that here, once the letter was read aloud and

incorporated into the minutes of the meeting where the

township conducted its business, it became a public record

“used...intheperformance of an official function.” [Id. at

730.]

In deciding that the letter had been “used” for purposes

of the FOIA, this Court explained:

To be fully aware of the affairs of government, inter-

ested citizens are entitled to know not only the basis for

various decisions to act, but also for decisions not to act. To

further this purpose, we must construe the FOIA in such a

manner as to require disclosure of records of public bodies

used or possessed in their decisions to act, as well as of

similar records pertaining to decisions of the body not to

act. Under this holding, not every communication received

by a public body will be subject to disclosure. But where, as

here, the content of a document is made part of the

minutes of the body’s meeting where it conducts its official

affairs and the content of the document served as the basis

for a decision to refrain from taking official affirmative

action, that document must be considered a “public

record,” as defined by the FOIA. [Id. at 730-731.]

Thus, a private letter became public because it was read

into the record of the township meeting and used by the

township board to resolve a specific issue. In this case,

Pentti’s notes were never read into the record, nor is

there any evidence that the notes were used in the

township’s decisions. The notes were kept for Pentti’s

personal use and were not provided to any of the other

board members.

In WDG, the plaintiffs sought “all notes or other

writings” of those individuals who participated in

evaluating submitted proposals in connection with the

construction of a public facility, regardless of whether

individuals were employed by the agency. WDG, unpub

2011] H

OPKINS V

UNCAN

411

op at 7. The defendants argued that there was no duty

to disclose such “personal” notes. In a footnote, this

Court stated, “It is not at all clear from the record what

defendants mean by ‘personal’ notes. We therefore

decline to address this argument at this time.” Id.at7

n 4. This Court went on to hold that the defendants had

failed to meet their burden to justify the nondisclosure

given that the defendants only argued that the notes

were located in other departments. Id. at 8. “[E]ven if

the requested records were not retained by the DMB,

the DMB was still under a duty to conduct a reasonable

search to request and locate the records.” Id. at 7.

Again, the case is not helpful to plaintiff. This Court

specifically declined to decide whether personal notes

could be considered public documents; instead, the

focus was on the duty of the defendants to conduct a

reasonable search to request and locate documents,

which they clearly did not do. In contrast, the township

clerk asked the individual township board members if

they had any notes from the year’s meetings. Only

Pentti had notes, which he claimed were in his personal

diary.

During the motion hearing, the parties and the trial

court referred to the Howell Ed Ass’n case, but the trial

court hesitated in relying too heavily on the case, as the

matter had been appealed to the Michigan Supreme

Court. Since that time, however, the Michigan Supreme

Court has denied leave to review.

Though not directly

on point, Howell Ed Ass’n is instructive. It involved a

“reverse” FOIA issue, in which a teacher’s union ob-

jected to the release of e-mails between the union and

its members, arguing, among other things, that per-

sonal e-mails were not “public records.” Howell Ed

Howell Ed Ass’n MEA/NEA v Howell Bd of Ed, 488 Mich 1010 (2010),

recon den 489 Mich 976 (2011).

412 294 M

ICH

401 [Oct

Ass’n, 287 Mich App at 232. The plaintiffs’ appeal was

limited to whether the trial court properly concluded

that the e-mails generated through the school district’s

e-mail system, retained and stored by the district, were

public records subject to disclosure. Id. at 235. This

Court found that the e-mails at issue had nothing to do

with the essential operations of the schools and declined

to find that they were equivalent to student informa-

tion. Id. at 236-237. Further, this Court noted that

“unofficial private writings belonging solely to an indi-

vidual should not be subject to public disclosure merely

because that individual is a state employee.” We believe the

same is true for all public body employees. Absent specific

legislative direction to do so, we are unwilling to judicially

convert every e-mail ever sent or received by public body

employees into a public record subject to FOIA. [Id. at 237,

quoting Kestenbaum v Mich State Univ, 414 Mich 510, 539;

327 NW2d 783 (1982).]

The fact that the district maintained and saved the

e-mails did not render e-mails sent by its employees while

at work subject to release under FOIA. Howell Ed Ass’n,

287 Mich App at 237. This Court easily reconciled its

finding with Walloon Lake, finding that it is possible that

a personal document can become public, but only because

“[the document’s] subsequent use or retention ‘in the

performance of an official function...rendered [it] so.”

Id. at 243. This Court also referred to WDG, and noted

that while the case declined to define the word “personal,”

it nevertheless offered “limited guidance.” Id. at 244.

“[T]o the degree [WDG] is helpful, it indicates that indi-

vidual notes taken by a decisionmaker on a governmental

issue are still public records when they were taken in

furtherance of an official function.” Id.

Defendant also cites Porter Co Chapter of the Izaak

Walton League of America, Inc v United States Atomic

2011] H

OPKINS V

UNCAN

413

Energy Commission, 380 F Supp 630 (D Ind, 1974), in

support of its position. Federal court decisions regard-

ing whether an item is an “agency record” under the

federal freedom of information act, 5 USC 552, are

persuasive in determining whether a record is a “public

record” under the Michigan FOIA. MacKenzie, 247

Mich App at 129, n 1. In Porter, the plaintiffs requested

“[a]ssorted generally untitled, undated and uncircu-

lated handwritten personal notes of [Atomic Energy

Commission (AEC)] and Argonne National Laboratory

personnel[.]” Porter, 380 F Supp at 632. In granting the

defendant’s motion for summary judgment, the district

court noted that uncirculated handwritten personal

notes were not subject to disclosure:

In executing their responsibilities relating to the AEC’s

health and safety and environmental reviews, individual

AEC staff members frequently prepare assorted handwrit-

ten materials for their own use. Such materials are not

circulated to nor used by anyone other than the authors,

and are discarded or retained at the author’s sole discretion

for their own individual purposes in their own personal

files. The AEC does not in any way consider such docu-

ments to be ‘agency records,’ nor is there any indication in

the record that anyone other than the author exercises any

control over such documents. [Id. at 633.]

V. APPLICATION OF LAW TO THE FACTS

Plaintiff argues that Pentti took his notes while

acting in his official capacity as an elected official at a

public meeting. Defendant does not dispute that Pent-

ti’s handwritten notes are a “writing” for purposes of

FOIA. MCL 15.232(h). Nor does defendant argue that a

writing that is otherwise private may become a public

record subject to disclosure if the writing is possessed

by the public body in the performance of an official

function or if it is used by the public body. Defendant’s

414 294 M

ICH

401 [Oct

argument is simply that Pentti’s handwritten notes

were not in furtherance of an official function; rather,

Pentti’s notes, taken voluntarily, not circulated among

other board members, not used in the preparation of

meeting minutes, and retained at his sole discretion

were private writings not subject to disclosure under

FOIA. We agree.

The town’s records were held jointly with the clerk

and in the treasurer’s office, which consisted of a desk

and a chair in the Sidnaw town hall. There was also a

building next door to the town hall where other “an-

cient” records were found, but “certainly, all active

township records would be either with the clerk or the

treasurer.” The clerk conducted her business from her

residence and from a store that she owned. When

plaintiff’s FOIA request was made, the clerk immedi-

ately went to those records. Finding nothing there, she

then asked each board member whether they had notes

of the meetings. Pentti reported that he had kept notes

in his personal diary, where he also kept notes of his

other affairs, including as secretary of the Kenton

Historical Society and a “mishmash of everything.”

Pentti took notes in hopes that in so doing, he would

better retain information. Pentti did not refer to the

notes in the course of participating in township board

meetings. Plaintiff claims otherwise, pointing to the

sworn affidavit of David Johnson, who specifically

averred that during one of the meetings he saw Pentti

refer to his prior notes in answer to an inquiry from a

citizen who asked to whom she had been previously

referred for bringing her home into compliance with

local building ordinances. Even accepting the averment

as true, it appears that Pentti did little other than offer

the citizen contact information. Such information had

nothing to do with substantive decision-making.

2011] H

OPKINS V

UNCAN

415

Pentti saw other township board members jot down

notes, but had no idea what the other board members

did with their notes. For his part, Pentti often deposited

copies of the budget, agenda, and other notes in the

garbage. None of the board members shared notes with

one another. The clerk never asked Pentti to refer to his

notes in her preparation of the minutes, nor were the

notes circulated among other board members. When

asked if the notes were prepared in connection with his

responsibilities as a member of the board, Pentti testi-

fied, “No, I think they’re just personal notes.”

The foregoing facts demonstrate that Pentti’s

notes were never in the township’s possession, nor

were they used in the performance of an official

function. Regardless of plaintiff’s opinion regarding

the township’s loose recordkeeping, the fact remains

that all of the public records relative to the township

board meetings were kept and retained by the town-

ship clerk, either at her home or the convenience

store she owned. The clerk was responsible for pre-

paring the minutes of the meetings and admitted that

she never saw nor read any of Pentti’s notes. The fact

that Pentti’s notes were not for substantive decision-

making or recordkeeping is supported by the fact that

Pentti, alone, retained the records at his sole discre-

tion. Unlike Walloon Lake, in which a private letter

was read into the record and incorporated into the

board’s substantive decision-making, there is abso-

lutely no support that anyone other than Pentti read

the notes. Howell Ed Ass’n presented the opposite

situation, in which the documents (e-mails) at issue

were retained by the agency. This Court found that

the mere possession of the material sought did not

convert an otherwise private writing into a public

document subject to disclosure. Quite the opposite:

416 294 M

ICH

401 [Oct

“[U]nofficial private writings belonging solely to an

individual should not be subject to public disclosure merely

because that individual is a state employee.” We believe the

same is true for all public body employees. Absent specific

legislative direction to do so, we are unwilling to judicially

convert every e-mail ever sent or received by public body

employees into a public record subject to FOIA. [Howell Ed

Ass’n, 287 Mich App at 237, quoting Kestenbaum, 414 Mich

at 539 (citation omitted).]

Just as not every e-mail prepared and sent by a teacher

on school-owned computer equipment was subject to

disclosure, not every handwritten note prepared by a

member of a public body, not otherwise used by the

body’s remaining members, should be subject to disclo-

sure. Instead, individual notes taken by a decision-

maker on a governmental issue are only a public record

when the notes are taken in furtherance of an official

function. Howell Ed Ass’n, 287 Mich App at 244.

We believe that the case most on point is Porter,

which concluded that untitled, undated and uncircu-

lated handwritten personal notes were not subject to

disclosure under the federal freedom of information act.

Porter, 380 F Supp at 633. Notes not considered by

other members of the board and retained or disposed of

at the discretion of the writer cannot be anything other

than personal in nature. Porter also states:

Disclosure of such personal documents would invade the

privacy of and impede the working habits of individual staff

members; it would preclude employees from ever commit-

ting any thoughts to writing which the author is unpre-

pared, for whatever reason, to disseminate publicly. Even if

the records were ‘agency records,’ their disclosure would be

akin to revealing the opinions, advice, recommendations

and detailed mental processes of government officials. Such

notes would not be available by discovery in ordinary

litigation. [Id.]

2011] H

OPKINS V

UNCAN

417

Finally, given that Pentti’s notes were not public

records subject to disclosure under FOIA, plaintiff’s

claims that defendant failed to properly respond to the

FOIA inquiry pursuant to MCL 15.235(2) and (3) are

without merit. Plaintiff’s claim that the trial court

should have conducted an in camera review of the notes

under MCL 15.240(4) is also without merit because the

statute specifically provides that a “court, on its own

motion, may view the public record in controversy in

private before reaching a decision.” Because Pentti’s

notes are not public records kept in the furtherance of

a governmental function, an in camera review was

unnecessary.

VI. CONCLUSION

Handwritten notes of a township board member

taken for his personal use, not circulated among other

board members, not used in the creation of the minutes

of any of the meetings, and retained or destroyed at his

sole discretion are not public records subject to disclo-

sure under FOIA.

The trial court did not err in granting defendant

summary disposition.

Affirmed.

TEPHENS

,P.J., and S

AWYER

and K. F. K

ELLY

,JJ.,

concurred.

418 294 M

ICH

401 [Oct

PETIPREN v JASKOWSKI

JASKOWSKI v PETIPREN

Docket Nos. 298088 and 301125. Submitted July 6, 2011, at Detroit.

Decided October 20, 2011, at 9:15 a.m. Leave to appeal granted,

491 Mich 913.

Thomas J. Petipren brought an action in the Sanilac Circuit Court

against Rodney Jaskowski, who was the police chief for the village of

Port Sanilac, and the village of Port Sanilac, alleging that Jaskowski

had assaulted and wrongfully arrested him for resisting and obstruct-

ing and disorderly conduct (Docket No. 298088). Jaskowski filed a

separate suit against Petipren, alleging assault and negligent and

intentional infliction of emotional distress, and Petipren filed a

counterclaim in the separate lawsuit, alleging claims of negligence,

negligent infliction of emotional distress and intentional infliction of

emotional distress against Jaskowski (Docket No. 301125). Petipren’s

band had been scheduled to perform at a fundraiser hosted by the

village of Port Sanilac. Attendees complained about the style of music

performed before Petipren’s arrival and performance. Jaskowski was

called to the event, which was cancelled at some point. Jaskowski

arrested Petipren while he was warming up on his drum set, but the

parties’ respective versions of the circumstances surrounding the

arrest were completely different. Petipren alleged that he did not

resist arrest, but Jaskowski barged through the drum set and pushed

him several times. Jaskowski alleged that Petipren refused to stop

playing, swore at him, struck him in the jaw, and repeatedly resisted

the arrest. Jaskowski filed motions for summary disposition pursuant

to MCR 2.116(C)(7) in both cases on the basis that under MCL

691.1407(5), Petipren’s claims were barred by governmental immu-

nity. The court, Donald A. Teeple, J., denied Jaskowski’s motions.

Jaskowski appealed both orders, and this Court consolidated the

appeals.

The Court of Appeals held:

Under MCL 691.1407(5), judges, legislators, and the elective or

highest appointive executive officials of all levels of government are

immune from tort liability for injuries to persons or damage to

property if they are acting within the scope of their judicial, legisla-

tive, or executive authority. While a police chief is recognized as the

highest appointive official in the police department, he or she would

2011] P

ETIPREN V

ASKOWSKI

419

not be immune from tort liability unless the challenged acts fell

within the scope of his or her executive authority. Whether the

highest executive official of a local government was acting within his

or her authority depends on (1) the nature of the acts, (2) the position

held by the official, (3) the local law defining the official’s authority,

and (4) the structure and allocation of powers at that particular level

of government. The official’s motive is irrelevant. The trial court

properly denied Jaskowski’s motions for summary disposition. Jas-

kowski’s duties as chief of police generally involved policy, procedure,

administration, and personnel matters and were distinct from the

nature of the duties of an ordinary police officer. Jaskowski was not

acting within the scope of his executive duties when he performed the

ordinary police act of arresting Petipren and was thus not entitled to

absolute immunity. The fact that Jaskowski occasionally performed

the duties of an ordinary police officer did not place those functions

within the scope of the executive duty of the police chief; rather, they

remained within the scope of the functional responsibilities of the

police department generally.

Affirmed.

URRAY

,P.J., dissenting, would have reversed and remanded for

entry of an order granting Jaskowski’s summary disposition

motions on the basis that as the chief of police, Jaskowski was the

highest executive official of a level of government and had acted

within the scope of his employment when arresting Petipren.

Jaskowski averred in his affidavit that arresting offenders was one

of the functional responsibilities of his position as chief of police

and Petipren failed submit any evidence to dispute this fact. On

these facts, Judge M

URRAY

would have held that Jaskowski was

entitled to absolute immunity under MCL 691.1407(5).

1. G

OVERNMENTAL

MMUNITY —

XECUTIVE

FFICIALS —

HIEFS OF

OLICE

Judges, legislators, and the elective or highest appointive executive

officials of all levels of government are immune from tort liability

for injuries to persons or damage to property if they are acting

within the scope of their judicial, legislative, or executive author-

ity; a chief of police is generally recognized as the highest appoint-

ive official in a police department; if the duties of an ordinary

police officer—such as effecting arrests—are outside the scope of

the police chief’s executive authority, a police chief acting as an

ordinary police officer is not entitled to absolute immunity simply

because he or she is also the police chief, even if he or she

occasionally performs those ordinary duties, but would be entitled

to the immunity provided to governmental employees if all the

420 294 M

ICH

419 [Oct

statutory requirements for that immunity are satisfied (MCL

691.1407[2], [5].)

2. G

OVERNMENTAL

MMUNITY —

XECUTIVE

FFICIALS —

XECUTIVE

UTHORITY

Whether an elective or highest executive official of a level of local

government was acting within his or her authority and therefore

immune from tort liability depends on (1) the nature of the acts, (2)

the position held by the official, (3) the local law defining his or her

authority, and (4) the structure and allocation of powers at that

particular level of government; the official’s motive is irrelevant.

Cutler & Associates, P.C. (by Michael H. Cutler), for

Thomas J. Petipren.

McGraw Morris, P.C. (by G. Gus Morris and D.

Randall Gilmer), and Stephens & Moore (by Phoebe J.

Moore) for Rodney Jaskowski.

Before: M

URRAY

,P.J., and F

ITZGERALD

and R

ONAYNE

RAUSE

,JJ.

ITZGERALD

, J. In Docket No. 298088, plaintiff, Tho-

mas Petipren, alleged that defendant Rodney Jas-

kowski, the police chief for the village of Port Sanilac,

assaulted him without provocation and wrongfully ar-

rested him for resisting and obstructing and disorderly

conduct. In Docket No. 301125, Petipren filed a coun-

terclaim in a separate lawsuit brought by Jaskowski,

alleging that Jaskowski negligently and intentionally

inflicted emotional distress upon Petipren and acted

negligently. Jaskowski appeals as of right the orders

denying his motions for summary disposition that were

brought pursuant to MCR 2.116(C)(7) on the basis of

governmental immunity. We affirm.

I. FACTS AND PROCEDURAL HISTORY

On July 19, 2008, the village of Port Sanilac hosted a

fundraising event in a park that included a number of

2011] P

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musical acts and a beer tent; Petipren and his band were

scheduled to perform at the event. Complaints regarding

the style of music being played at the event had been

voiced to volunteers working at the beer tent before

Petipren’s band played. Words were exchanged between

individuals listening to the prior band and those patron-

izing the beer tent. Brown City Police Chief Ron Smith

reported to the park after receiving a “call from individu-

als” requesting that he stop by the park “because the band

that was performing was playing offensive music.” The

organizer of the event also returned to the event after

being contacted by a volunteer at the beer tent. Upon his

arrival, Smith was approached by several citizens who

found the music “offensive, disturbing, and not appropri-

ate for the crowd.” Smith then contacted Village of Port

Sanilac Police Chief Ronald Jaskowski and requested that

Jaskowski come to the park because trouble appeared to

be brewing between those who wanted the band to play

and those who did not. By the time Jaskowski arrived, the

organizer of the event was resolving the situation. At

some point, a decision was made that the bands would no

longer play.

From here, the parties’ portrayals of the facts

sharply diverge. Petipren testified that he had been

busy assembling his drum set on stage and did not know

that the concert had been canceled. Petipren was in the

midst of playing his usual warmup routine when he

observed Jaskowski for the first time. Jaskowski ap-

peared to be very angry, so Petipren stopped playing to

determine what Jaskowski wanted. Petipren asserted

that he held his drumsticks in his lap and did not say

anything. According to Petipren, Jaskowski barged

through Petipren’s drum set, knocked over a cymbal,

grabbed Petipren’s drumsticks, and flung them away.

Jaskowski then grabbed Petipren by the collar and

pushed him backward off of his seat and into a pole.

422 294 M

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Petipren testified that no words were exchanged and

that he put his arms straight up in the air to be

completely clear that he was not resisting. Petipren

stated that he began asking, “What did I do?” and

Jaskowski then pushed him off the stage and shoved

him down onto the grass. Jaskowski yelled at Petipren

to stop resisting, and Petipren again responded that he

was not resisting. When a bass player from another

band asked Jaskowski why Petipren was being arrested,

Jaskowski had him arrested as well. The prosecutor

declined to press any charges against Petipren.

Testimony from the organizer of the event and the

statements of other witnesses generally corroborated

Petipren’s account of the incident. Jaskowski, on the

other hand, reported that when he told Petipren to stop

playing, Petipren refused, swore at him, and punched

him in the jaw when he tried to take Petipren’s drum-

sticks. Jaskowski stated that Petipren continued to

resist while Jaskowski attempted to handcuff him.

Petipren filed suit against Jaskowski individually and

as the police chief for assault and battery and false arrest.

Jaskowski filed his own suit against Petipren, alleging

assault, intentional infliction of emotional distress, negli-

gence, and negligent infliction of emotional distress. Peti-

pren filed a countercomplaint in that case alleging inten-

tional and negligent infliction of emotional distress and

negligence against Jaskowski. Jaskowski moved for sum-

mary disposition of the claims against him in each case.

The trial court denied both motions.

II. STANDARD OF REVIEW

We review de novo a trial court’s determination

regarding a motion for summary disposition. Odom v

Petipren also filed suit against the village of Port Sanilac. The trial

court dismissed the claims against the village.

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Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). A

trial court properly grants summary disposition under

MCR 2.116(C)(7) when a claim is barred because of

immunity granted by law. Maiden v Rozwood, 461 Mich

109, 118; 597 NW2d 817 (1999). “When reviewing a

motion under MCR 2.116(C)(7), this Court must accept

all well-pleaded factual allegations as true and construe

them in favor of the plaintiff, unless other evidence

contradicts them.” Dextrom v Wexford Co, 287 Mich

App 406, 428; 789 NW2d 211 (2010). If any documen-

tary evidence is submitted, we must view it in the light

most favorable to the nonmoving party to determine

whether there is a genuine issue of material fact. Zwiers

v Growney, 286 Mich App 38, 42; 778 NW2d 81 (2009).

“If no facts are in dispute, and if reasonable minds could

not differ regarding the legal effect of the facts, the

question whether the claim is barred is an issue of law

for the court.” Dextrom, 287 Mich App at 431. Con-

versely, if a factual dispute exists regarding whether

immunity applies, summary disposition is not appropri-

ate. Id.

III. STATUTORY INTERPRETATION

This appeal involves, in part, an issue of statutory

construction. The primary goal of statutory interpreta-

tion is to “ascertain the legislative intent that may

reasonably be inferred from the statutory language

itself.” Griffith v State Farm Mut Auto Ins Co, 472 Mich

521, 526; 697 NW2d 895 (2005), citing Sotelo v Grant

Twp, 470 Mich 95, 100; 680 NW2d 381 (2004). “The

first step in that determination is to review the lan-

guage of the statute itself.” In re MCI Telecom Com-

plaint, 460 Mich 396, 411; 596 NW2d 164 (1999), citing

House Speaker v State Admin Bd, 441 Mich 547, 567;

495 NW2d 539 (1993). Unless statutorily defined, every

424 294 M

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word or phrase of a statute should be accorded its plain

and ordinary meaning, MCL 8.3a; Robertson v Daimler-

Chrysler Corp, 465 Mich 732, 748; 641 NW2d 567

(2002), taking into account the context in which the

words are used, 2000 Baum Family Trust v Babel, 488

Mich 136, 175; 793 NW2d 633 (2010). We may consult

dictionary definitions to give words their common and

ordinary meaning. Halloran v Bhan, 470 Mich 572, 578;

683 NW2d 129 (2004). When given their common and

ordinary meaning, Veenstra v Washtenaw Country Club,

466 Mich 155, 160; 645 NW2d 643 (2002), citing MCL

8.3a, “[t]he words of a statute provide ‘the most reliable

evidence of its intent,’ ” Sun Valley Foods Co v Ward,

460 Mich 230, 236; 596 NW2d 119 (1999), quoting

United States v Turkette, 452 US 576, 593; 101 S Ct

2524; 69 L Ed 2d 246 (1981).

IV. GOVERNMENTAL IMMUNITY

The governmental tort liability act (GTLA), MCL

691.1401 et seq., shields a governmental agency from

tort liability “if the governmental agency is engaged in

the exercise or discharge of a governmental function.”

MCL 691.1407(1). “The existence and scope of govern-

mental immunity was solely a creation of the courts

until the Legislature enacted the GTLA in 1964, which

codified several exceptions to governmental immunity

that permit a plaintiff to pursue a claim against a

governmental agency.” Duffy v Dep’t of Natural Re-

sources, 490 Mich 198, 204; 805 NW2d 399 (2011). The

statutory exceptions must be narrowly construed.

Maskery v Univ of Mich Bd of Regents, 468 Mich 609,

614; 664 NW2d 165 (2003). A plaintiff bringing suit

against the government must plead in avoidance of

governmental immunity. Odom, 482 Mich at 478-479.

However, the immunity of an individual governmental

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employee is an affirmative defense that the employee

must raise and prove. Id. at 479.

V. MCL 691.1407(5)

Jaskowski argues that he is absolutely immune from

plaintiff’s claims because he holds the highest appoint-

ive office at the pertinent level of government and his

actions were taken within the scope of his authority.

Governmental immunity from tort liability is governed

by MCL 691.1407. Of particular relevance in this case,

MCL 691.1407(5) provides:

A judge, legislator, and the elective or highest appointive

executive official of all levels of government are immune

from tort liability for injuries to persons or damages to

property if he or she is acting within the scope of his or her

judicial, legislative, or executive authority.

A police chief is generally recognized as the highest

appointive official in the police department. See Payton

v Detroit, 211 Mich App 375, 394; 536 NW2d 233 (1995).

However, under MCL 691.1407(5), the highest appoint-

ive executive officials of a level of government are not

immune from tort liability unless their acts fall within

the scope of their executive authority. American Trans-

missions, Inc v Attorney General, 454 Mich 135, 144;

560 NW2d 50 (1997); Marrocco v Randlett, 431 Mich

700, 710-711; 433 NW2d 68 (1988). Whether the highest

executive official of a local government was acting

within his or her authority depends on a number of

factors, including the nature of the acts, the position

held by the official, the local law defining the authority,

and the structure and allocation of powers at that

particular level of government. American Transmis-

sions, 454 Mich at 141; Bennett v Detroit Police Chief,

274 Mich App 307, 312; 732 NW2d 164 (2006). The

426 294 M

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official’s motive is irrelevant.

American Transmis-

sions, 454 Mich at 143-144; Brown v Detroit Mayor, 271

Mich App 692, 722; 723 NW2d 464 (2006), aff’d in part

and vacated in part on other grounds 478 Mich 589

(2007).

The Port Sanilac Village Council set forth the “Es-

sential Duties and Responsibilities” of the police chief

in the job description for the position:

• Recruit, train, and monitor officers[’] performance.

• Coordinates activities by scheduling work assign-

ments, setting priorities, and directing the work of subor-

dinate employees.

• Plan, develop, and monitor work schedules to ensure

efficient use of personnel.

In American Transmissions, 454 Mich at 140 n 5, the Supreme Court

quoted from this Court’s opinion in American Transmissions, Inc v

Attorney General, 216 Mich App 119, 125 n 3; 548 NW2d 665 (1996):

“When the Legislature was considering amendments of the

governmental immunity statute in 1985 and 1986, it always

provided for immunity for judges, legislators, elective officials, and

the highest appointive executive officials when they are acting

within the scope of their judicial, legislative, or executive author-

ity. See House Legislative Analysis, HB 5163 Substitute H-2,

November 19, 1985; Senate Analysis, HB 5163 (S-3), March 20,

1986; House Legislative Analysis, HB 5163, July 23, 1986. This is

in direct contrast to the treatment of lower level governmental

employees. With respect to lower level governmental employees,

the Legislature considered various intent-based standards, such as

‘acting in good faith’ and ‘not acting in bad faith.’ See House

Legislative Analysis, HB 5163 Substitute H-2, November 19, 1985;

House Legislative Analysis, HB 5163, January 16, 1986. The

proposed intent requirements were in addition to other prerequi-

sites to immunity in lower level employees; the employee’s ‘rea-

sonable belief’ that he was acting within the scope of his authority

and the ‘gross negligence’ standard. Id. Ultimately, however, the

specific intent requirement for lower level governmental employ-

ees was omitted from the bill as passed. See MCL 691.1407(2);

MSA 3.996(107)(2). Thus, although the Legislature considered

various intent-based factors for lower level governmental employ-

ees, such an intent factor was never considered or included with

respect to high level governmental employees.”

2011] P

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• Makes decisions and takes necessary actions. Identi-

fies and solves administrative problems.

• Communicates effectively with others.

• Identify staff development and training needs and

ensures that training is obtained.

• Oversees communication and public relations prac-

tices, and directs the dissemination of requested informa-

tion and/or materials to requestors.

• Maintains records, prepares reports, and composes

correspondence relative to the work to include but not

limited to; [Michigan Incident Crime Reporting] state

report, death and custody reports, officers killed report,

[1982 PA 302 criminal justice training] fund expenditures

report.

• Prepares and presents a monthly report to council at

regular council meetings and attends monthly finance

committee meeting.

• Reviews request for service, determines feasibility of

requests according to resource capabilities; then proceeds

to either execute the request or suggest other means to

secure the requested service.

• Provides input into the development of long-range

budget and planning information.

• Issues various licenses and permits handled by the

police department (ie., Liquor licenses)[.]

• Prepares time sheets and presents to bookkeeper in a

timely manner in accordance with pay dates for all officers.

• Maintains and updates policies and procedures within

the police department.

• Maintains complete inventory and requisitions of ma-

terials and supplies.

• Vehicle fleet maintenance.

• Maintains records of all vehicles to establish

repair/replacement.

• Maintains inventory of department of vehicles.

428 294 M

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• Provide leadership and mentoring to subordinate em-

ployees while carrying out police activities.

• Record and secure all evidence.

[

]

A review of the duties assigned to the chief of police

reveals that the chief’s duties generally involve policy,

procedure, administration, and personnel matters.

Generally, opinions interpreting MCL 691.1407(5) have

involved either defamation lawsuits that arose from

public comments made by the highest executive official

of a level of government or lawsuits that arose from

personnel or employment decisions made by the highest

executive official of a level of government. Those cases

have concluded that acts such as commenting on an

official governmental matter and making personnel or

employment decisions clearly fall within the scope of

the executive authority of the highest executive officials

of local government. For example, in Bennett, a sus-

pended police officer brought an action for wrongful

discharge against the chief of police and the mayor. This

Court concluded that the chief had express legal author-

ity to suspend police officers from duty and, therefore,

was entitled to governmental immunity for suspending

the police officer for operating an Internet website in

violation of police department rules and regulations.

Bennett, 274 Mich App at 313-315. This Court also

concluded that the mayor, who had authority to termi-

nate or suspend employees, was immune from the

plaintiff’s tort allegations. Id. at 319.

In Washington v Starke, 173 Mich App 230; 433

NW2d 834 (1988), the personal representative of a

fleeing burglar shot by a Benton Harbor police officer

brought a wrongful death action against the city’s

public safety director, who is the highest executive

The specific job duties of the police chief do not refer to making

arrests.

2011] P

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official in Benton Harbor’s police department. The

plaintiff alleged that the public safety director had

failed to properly supervise the officer who used deadly

force in shooting the burglar. This Court concluded that

the public safety director’s “supervision of departmen-

tal employees is conduct within his executive authority,

and therefore immune from suit.” Id. at 241.

In Meadows v Detroit, 164 Mich App 418; 418 NW2d

100 (1987), a police officer brought suit against the police

chief

for the chief’s participation in a board hearing

that resulted in the suspension of the police officer and

for allegedly defamatory comments the chief wrote in a

letter to the effect that the officer’s failure to report

that his partner had accepted a bribe amounted to

“criminal misconduct.” This Court noted that the city

charter gave the police chief the authority to suspend

and discharge employees of the department. Thus, the

Court concluded that the chief was acting within the

scope of his executive authority when he discharged the

plaintiff without pay and was therefore absolutely im-

mune for his action. Id. at 427. The Court also con-

cluded that the police chief was entitled to absolute

immunity for the allegedly defamatory comments he

made in the letter written in response to a citizen

complaint concerning the officer’s discharge. The Court

found that “as a part of his duties as chief of police, [the

chief] was implicitly authorized [by the city charter] to

respond to and, if possible, to resolve complaints con-

cerning the police department, even complaints regard-

ing the discharge of a police officer.” Id. at 428.

We note that in Meadows two different defendants functioned as chief

police during the relevant time period. Although one defendant was

responsible for the police officer’s suspension and another for the

allegedly defamatory remarks, it was irrelevant with respect to the

governmental immunity analysis as both were acting as chief of police

during the complained about actions.

430 294 M

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None of the published decisions in this state have

considered a situation involving conduct by a police

chief that occurred when the chief was acting as an

ordinary police officer rather than within his or her

capacity as the highest executive official of a level of

government. Jaskowski relies on an unpublished and

thus nonbinding decision in which a panel of this Court

concluded “that a police chief’s ‘executive authority’

includes his duties as a high ranking executive as well

as his ordinary duties as a police officer.” Lewkowicz v

Poe, unpublished opinion per curiam of the Court of

Appeals, issued May 15, 2001 (Docket No. 216307), p 2.

After specifically noting that the police chief was di-

rected to attend a city council meeting in his official

capacity as police chief, this Court found that the police

chief “acted within the authority granted him by law as

a police officer when he arrested and detained plaintiff,

and was entitled to absolute immunity under MCL

691.1407(5)...by virtue of his status as the highest

law enforcement official for the city of Romulus.” Id.at

2-3 (emphasis added). However, in Scozzari v City of

Clare, 723 F Supp 2d 945, 967 (ED Mich, 2010), the

federal district court concluded that a police chief was

not entitled to absolute immunity under MCL

691.1407(5) from an assault-and-battery claim brought

by the estate of a deceased victim of a police shooting

because the chief “appears to have been acting in his

capacity as an officer on patrol, rather than performing

any tasks particular to his position as the ‘highest

appointive official.’ ”

We find that the Scozzari reasoning best reflects the

legislative intent expressed in the words of MCL

691.1407(5). Scozzari was more faithful in construing

the plain language of the statute and recognized that it

refers to immunity for acts taken by the highest execu-

tive official of a level of government when the official is

2011] P

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acting within the scope of his or her executive authority.

When a police chief acts as an ordinary police officer—

that is, when the nature of the act is outside the scope

of his or her executive duties—the chief is not entitled

to absolute immunity simply because he or she is also

the police chief. Indeed, the essential duties of the police

chief as set forth in the job description for the police

chief of the village of Port Sanilac are administrative in

nature and are clearly distinct from the nature of the

duties of an ordinary police officer.

Although a police

chief may occasionally perform the duties of an ordi-

nary police officer, the police chief is not acting within

the scope of his or her executive authority as the highest

executive official in the police department when doing

so.

Rather, the nature of the act is that of an ordinary

police officer. As an ordinary police officer, he would be

entitled to the immunity provided to governmental

employees under MCL 691.1407(2) if all the statutory

The duties of an ordinary police officer can be gleaned from the

responsibilities of the police department generally as set forth by the Port

Sanilac Village Council:

Patrol the streets of the Village of Port Sanilac,... observe and

investigate persons, situations or things which require attention

and which affect enforcement of laws or prevention of crime.

Preserve the peace and protect life and property, control public

gatherings and perform miscellaneous services relative to public

health and safety including property checks of private residences

(upon request) and commercial establishments. Receive and pro-

cess complaints by citizens, arrest offenders, prepare reports and

testify in court. Traffic duties shall consist of enforcing the traffic

ordinances of the Village of Port Sanilac and the State of Michi-

gan....Investigate traffic accidents and prepare proper reports.

We acknowledge that Jaskowski submitted an affidavit in which he

averred that he did at times perform those functions that are within the

scope of the duties of employees of the police department generally. This

fact is not in dispute. However, the fact that Jaskowski performed those

functions does not place the functions within the scope of the executive

duty of the police chief; rather, they remain within the scope of the

functional responsibilities of the police department generally.

432 294 M

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requirements were satisfied.

Indeed, it would lead to

an illogical result to limit a plaintiff’s intentional-tort

claims arising from the conduct of a police officer in

those cases in which the police officer was also the

police chief who was acting as an ordinary police officer

at the time he or she allegedly committed the tortious

act.

Affirmed.

ONAYNE

RAUSE

, J., concurred with F

ITZGERALD

,J.

URRAY

,P.J. (dissenting). The trial court held that

defendant Rodney Jaskowski was not entitled to abso-

lute governmental immunity under MCL 691.1407(5)

because (1) Jaskowski acted outside the scope of his

executive authority as chief of police and (2) Jaskowski

was motivated by a “personal vendetta” against plain-

tiff. Because Michigan law provides no support for such

a conclusion under the undisputed material facts pre-

sented to the trial court, I respectfully dissent from the

majority’s decision to affirm the trial court’s order

denying Jaskowski’s motion for summary disposition.

As acknowledged by the majority, MCL 691.1407(5)

provides that judges, legislators, “and the elective or

highest appointive executive official of all levels of

Under MCL 691.1407(2) employees of a governmental unit are

immune from state tort claims if all the following conditions are met:

(a) The officer, employee, member, or volunteer is acting or

reasonably believes he or she is acting within the scope of his or

her authority.

(b) The governmental agency is engaged in the exercise or

discharge of a governmental function.

does not amount to gross negligence that is the proximate cause of

the injury or damage.

2011] P

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,P.J.

government are immune from tort liability for injuries

to persons or damages to property if he or she is acting

within the scope of his or her judicial, legislative, or

executive authority.” Bennett v Detroit Police Chief, 274

Mich App 307, 311; 732 NW2d 164 (2006). Thus, the

test for whether a chief of police is entitled to absolute

immunity is whether the official (1) is “the highest

appointed or elected executive of a level of government,”

Grahovac v Munising Twp, 263 Mich App 589, 596; 689

NW2d 498 (2004), and if he is, (2) whether the chief’s

acts at issue in this case were within his executive

authority, Payton v Detroit, 211 Mich App 375, 394; 536

NW2d 233 (1995). As the majority correctly recognizes,

Jaskowski, as the Chief of Police for the village of Port

Sanilac, is the highest executive official of a level of

government. See Payton, 211 Mich App at 394 (MCL

691.1407(5) applies to a municipal police chief because

he is the highest level official within a political subdi-

vision).

However, the majority errs in its conclusion that

Jaskowski acted outside the scope of his authority when

he arrested plaintiff. Whether the highest official acted

within the scope of his authority depends on the nature

of the specific acts alleged, the position held by the

official, the laws defining the official’s authority, and

the structure and allocation of powers in that level of

Contrary to plaintiff’s arguments, the conclusion that the police

department is a level of government emanates from the definitions

contained within the governmental tort liability act, MCL 691.1401 et

seq. A police department is a level of government because a “department”

of a municipal corporation is a “political subdivision,” MCL 691.1401(b),

and a “political subdivision” is a “governmental agency” for purposes of

governmental immunity, MCL 691.1401(d). Mack v Detroit, 467 Mich

186, 204; 649 NW2d 47 (2002); Grahovac, 263 Mich App at 599 (G

RIFFIN

J., dissenting). Hence, although it may seem strange from a common-

sense perspective to consider a police department a “level of govern-

ment,” the statute and caselaw support this conclusion.

434 294 M

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,P.J.

government. American Transmissions, Inc v Attorney

General, 454 Mich 135, 141; 560 NW2d 50 (1997),

quoting Marrocco v Randlett, 431 Mich 700, 710-711;

433 NW2d 68 (1988).

Jaskowski submitted an affidavit in which he at-

tested that his executive authority as the chief of police

included, amongst many other things, the duty to

“arrest offenders.” This testimony was based in part on

the job description for the chief of police (which was also

submitted to the trial court), which sets forth both the

“functional responsibilities of the Police Department”

as well as the “essential duties and responsibilities” of

the position. The majority has quoted the “essential

duties” but ignores the “functional responsibilities,”

which, according to the chief’s affidavit, included the

general aspects of the job he actually performed while

serving as chief. And as noted, Jaskowski testified that

some of the tasks he was expected to, and did perform,

were to “control public gatherings and perform miscel-

laneous services relative to public health and safety

including...[t]o arrest offenders.” Importantly, plain-

tiff failed to submit any evidence to contradict Jaskows-

ki’s affidavit and documentary evidence, so the material

facts about what Jaskowski was expected to do (and

actually did) as chief of police were undisputed before

the trial court.

Furthermore, the Legislature has given all police

officers the authority to pursue, arrest, and detain

persons suspected of committing a crime. See Payton,

211 Mich App at 392, citing MCL 117.34 (“The author-

The majority has effectively ignored Jaskowski’s affidavit, preferring

instead to rely on its own reading of the job description. However, because

Jaskowski’s affidavit is undisputed and it reveals that his actual duties

extended to those matters listed under the “functional responsibilities”

of the department, we must accept as true the factual statements of his

actual job duties.

2011] P

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,P.J.

ity of the city’s police officers to ‘pursue, arrest and

detain’ those suspected of violating the laws of Michi-

gan is expressly granted.”); see also MCL 70.16 (grant-

ing village police officers power to preserve quiet and

good order). Because Jaskowski was the highest execu-

tive official within the police department and the au-

thority granted to that executive position included the

ability to arrest offenders, he acted within the scope of

his executive authority when he arrested plaintiff.

Plaintiff spends a significant amount of time arguing

that Jaskowski was not entitled to absolute immunity

because he was motivated by a “personal vendetta”

against plaintiff and because Jaskowski “was acting

upon his personal biases against individuals who looked

different from him and played music that was unaccept-

able to him.” And as noted earlier, the trial court’s

decision was in part based on Jaskowski being moti-

vated by this perceived “personal vendetta.” However,

whether any of these allegations are true is of no

moment, and any facts pertaining to these allegations

are certainly not material, for they have no bearing on

the legal issue presented. A unanimous Supreme Court

held more than a decade ago that there is no “malevo-

lent heart” exception to absolute immunity, American

Transmissions, 454 Mich at 143-144, and we have more

recently held that in light of American Transmissions,

whether a defendant acted with “an improper motive

While the majority finds that the reasoning of Scozzari v City of Clare,

723 F Supp 2d 945 (ED Mich, 2010), “best reflects the legislative intent

expressed in the words of MCL 691.1407(5),” ante at 431, Scozzari is not

persuasive. Lee v Nat’l Union Fire Ins Co, 207 Mich App 323, 328; 523

NW2d 900 (1994). The pivotal basis of the court’s holding was that the

defendant failed to address whether his authority extended to those also

exercised by a patrol officer. Scozzari, 723 F Supp 2d at 967. To the

contrary, Jaskowski has provided undisputed evidence of his authority to

arrest, both as a matter of fact and law.

436 294 M

ICH

419 [Oct

ISSENTING

PINION BY

URRAY

,P.J.

and purpose in” committing the acts at issue was

“meaningless,” Armstrong v Ypsilanti Twp, 248 Mich

App 573, 594; 640 NW2d 321 (2001). Consequently, to

the extent the trial court’s decision rested on a per-

ceived “personal vendetta” against plaintiff, that ruling

had no legal support under Michigan law.

Based on the foregoing, Jaskowski was entitled to

absolute immunity under MCL 691.1407(5), and I

would reverse and remand for entry of an order grant-

ing Jaskowski’s motion for summary disposition.

2011] P

ETIPREN V

ASKOWSKI

437

ISSENTING

PINION BY

URRAY

,P.J.

PEOPLE v MEISSNER

Docket No. 298780. Submitted October 11, 2011, at Detroit. Decided

October 25, 2011, at 9:00 a.m. Leave to appeal denied, 491 Mich

938.

A jury in the Oakland Circuit Court convicted Christopher M.

Meissner of domestic violence, second offense, MCL 750.81(3);

first-degree home invasion, MCL 750.110a(2); and obstruction of

justice, MCL 750.505, for breaking into the complainant’s home,

assaulting her, and sending her threatening text messages when

he learned that she was in the process of reporting his conduct to

the police. The court, Nanci J. Grant, J., admitted into evidence

pursuant to MCL 768.27c the complainant’s verbal description to

the police of the incident that gave rise to the charges, as well as a

written description she had prepared at the police station that

included additional incidents from months earlier. Defendant

appealed.

The Court of Appeals held:

1. The trial court properly admitted the complainant’s state-

ments to the police under MCL 768.27c. MCL 768.27c allows trial

courts to admit a hearsay statement into evidence if (1) the

statement purports to narrate, describe, or explain the infliction or

threat of physical injury on the declarant, (2) the action in which

the evidence is offered is an offense involving domestic violence,

(3) the statement was made at or near the time of the infliction or

threat of physical injury and not more than five years before the

current action or proceeding was filed, (4) the statement was made

under circumstances that would indicate its trustworthiness, and

(5) the statement was made to a law enforcement officer. The

complainant’s statements met the factual requirements of MCL

768.27c(1)(a) because they described text messages that threat-

ened physical injury and previous incidents in which defendant

had choked her and pushed her down the stairs, and met the

temporal requirements of MCL 768.27c(1)(c) because she made

the statements at or very near the time she received one or more

of the threatening text messages. The trial court was not required

to calculate or consider the number of hours that elapsed between

the time of the charged offense and the time the complainant gave

the statements to the police.

438 294 M

ICH

438 [Oct

2. MCL 768.27c(2) provides that circumstances relevant to the

issue of trustworthiness include, but are not limited to, whether

the statement was made in contemplation of pending or antici-

pated litigation in which the declarant was interested, whether

and to what extent the declarant has a bias or motive for

fabricating the statement, and whether the statement is corrobo-

rated by evidence other than statements that are admissible only

under MCL 768.27c. Given that these circumstances are not the

sole means by which to establish trustworthiness, a trial court is

not required to make factual findings regarding them or to exclude

a statement because they have not been established. In this case,

the complainant’s statements were corroborated in part by the

police officer who had responded to the choking incident and

observed red marks on both sides of complainant’s neck. The trial

court also asked about the complainant’s demeanor when she

made the statements and about whether she contemporaneously

indicated any fear of defendant. The trial court then made a valid

determination that the complainant’s statements were trustwor-

thy. When the declarant is an alleged domestic violence victim, the

statutory reference to statements in contemplation of litigation

does not pertain to the victim’s report of the charged offense; it

pertains to litigation in which the declarant could gain a property,

financial, or similar advantage, such as divorce, child custody, or

tort litigation. In this case, there was no evidence that the

complainant’s statements could give her an advantage in any

related litigation.

3. The trial court did not err by admitting evidence of defen-

dant’s prior acts despite the fact that those acts differed from the

charged offense. MCL 768.27b(1) provides that in a criminal

domestic violence action, evidence of the defendant’s commission

of other acts of domestic violence is admissible for any purpose for

which it is relevant if it is not otherwise excluded under MRE 403.

Evidence may be excluded under MRE 403 if its probative value is

substantially outweighed by the danger of unfair prejudice, con-

fusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative

evidence. Because evidence offered against a criminal defendant is

prejudicial by its very nature, exclusion of evidence otherwise

admissible under MCL 768.27b is appropriate only when there is a

danger that the evidence will be given undue or preemptive weight

by the jury or if admitting it would be inequitable. Prior acts of

domestic violence may be admissible under MCL 768.27b regard-

less of whether the acts were identical to the charged offense. The

trial court was within its discretion in concluding that any

potential unfair prejudice to defendant was substantially out-

2011] P

EOPLE V

EISSNER

439

weighed by the probative value of the evidence, which illustrated

the nature of defendant’s relationship with complainant and

assisted the jury in assessing her credibility.

4. Viewing the evidence in the light most favorable to the

prosecution, a rational trier of fact could have found beyond a

reasonable doubt that defendant assaulted complainant, which is

an essential element of both home invasion and domestic violence.

An assault is generally defined as either an attempt to commit a

battery or an unlawful act that places another in reasonable

apprehension of receiving an immediate battery. A battery is an

intentional, nonconsensual, and harmful or offensive touching of

another person. In this case, the prosecution presented sufficient

evidence to prove that defendant threw coins at complainant and

pushed her, which constituted an offensive touching.

5. Obstruction of justice is a common-law charge that can be

prosecuted under MCL 750.505 and is generally understood as an

interference with the orderly administration of justice. Obstruc-

tion of justice is considered a category of offenses; a common

example is witness coercion. Coercion involves an attempt to

dissuade a witness from testifying, and words alone may be

sufficient to constitute the crime. The prosecutor presented evi-

dence that defendant sent several harassing text messages to the

complainant shortly after breaking into her apartment and as-

saulting her, and the messages indicated that he would harm her

if she made a statement to the police. A reasonable jury could find

that by sending these messages defendant willfully and corruptly

hampered, obstructed, and interfered with a proper and legitimate

criminal investigation.

6. The prosecutor did not unduly appeal to the jury’s sympathy

by reading complainant’s written statement to the police during

his opening statement. The prosecutor was stating facts that he

intended to prove at trial, which is permissible in opening state-

ments, and the statement was not so inflammatory that reading it

prejudiced defendant. Further, the prosecutor did not use the

prestige of his office to bolster a police witness’s credibility; his

comments merely summarized testimony elicited by defense coun-

sel during cross-examination. To the extent the prosecutor may

have improperly denigrated defense counsel by stating that he

could tell the defense was in trouble and arguably introduced facts

that were not in evidence by stating that domestic violence victims

recant or explain their initial accusations of abuse, reversal is not

required because the trial court instructed the jury that the

lawyers’ statements are not evidence and jurors are presumed to

follow instructions.

440 294 M

ICH

438 [Oct

7. Defendant has not established that his counsel’s perfor-

mance was ineffective. To establish ineffective assistance of coun-

sel, defendant must show that counsel’s performance was deficient

and that he was prejudiced by the deficiency. Although defense

counsel failed to object to the prosecutor’s comments during

opening statements and closing argument, any resulting prejudice

was cured by the jury instructions. Further, defense counsel

adequately presented defendant’s position that defendant had

permission to be in complainant’s apartment because he lived

there, notwithstanding counsel’s decision not to subpoena evi-

dence, call additional witnesses, or request a special jury instruc-

tion on that point.

Affirmed.

1. E

VIDENCE —

EARSAY —

OMESTIC

IOLENCE —

EMPORAL

EQUIREMENTS

A hearsay statement is admissible if (1) the statement purports to

narrate, describe, or explain the infliction or threat of physical

injury on the declarant, (2) the action in which the evidence is

offered is an offense involving domestic violence, (3) the statement

was made at or near the time of the infliction or threat of physical

injury and not more than five years before the current action or

proceeding was filed, (4) the statement was made under circum-

stances that would indicate its trustworthiness, and (5) the

statement was made to a law enforcement officer; a court is not

required to calculate or consider the number of hours that elapsed

between the time of the charged offense and the time the com-

plainant gave the statements to the police (MCL 768.27c[1]).

2. E

VIDENCE —

EARSAY —

OMESTIC

IOLENCE —

RUSTWORTHINESS

A hearsay statement in which a declarant describes to a law

enforcement officer a threat or incident of domestic violence

inflicted on him or her is admissible if it meets certain temporal

requirements and is trustworthy; circumstances relevant to deter-

mining trustworthiness include but are not limited to whether the

statement was made in contemplation of pending or anticipated

litigation in which the declarant was interested, whether and to

what extent the declarant has a bias or motive for fabricating the

statement, and whether the statement is corroborated by evidence

other than statements that are admissible only under MCL

768.27c; a court is not required to make factual findings regarding

these circumstances or to exclude a statement because they have

not been established; the statutory reference to statements in

contemplation of litigation does not pertain to a domestic violence

victim’s report of the charged offense but rather to litigation in

2011] P

EOPLE V

EISSNER

441

which the declarant could gain a property, financial, or similar

advantage (MCL 768.27c[1], [2]).

3. E

VIDENCE —

OMESTIC

IOLENCE —

RIOR

CTS —

REJUDICE

Evidence of a defendant’s commission of other acts of domestic

violence is admissible in a criminal domestic violence action for

any purpose for which it is relevant if it is not otherwise excluded

under MRE 403 because its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence;

because evidence offered against a criminal defendant is prejudi-

cial by its very nature, exclusion of the evidence is appropriate only

when there is a danger that the evidence will be given undue or

preemptive weight by the jury or if admitting it would be inequi-

table; prior acts of domestic violence may be admissible regardless

of whether the acts were identical to the charged offense (MCL

768.27b).

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Jessica R. Cooper, Prosecuting Attor-

ney, Thomas R. Grden and Tanya L. Nava, Assistant

Prosecuting Attorneys, for the people.

State Appellate Defender (by Chari K. Grove) and

Christopher Meissner, in propria persona, for defen-

dant.

Before: O

WENS

,P.J., and J

ANSEN

and O’C

ONNELL

,JJ.

O’C

ONNELL

, J. Following a jury trial, defendant ap-

peals by right his convictions of second-offense domestic

violence, MCL 750.81(3); first-degree home invasion,

MCL 750.110a(2); and obstruction of justice, MCL

750.505. We affirm.

I. FACTS AND PROCEDURAL HISTORY

On November 28, 2009, Candace Worthington ap-

peared at the Waterford police station, visibly shaken

442 294 M

ICH

438 [Oct

and upset. She reported that defendant, with whom she

had a relationship, had broken her door and had sent her

threatening text messages. She showed a police officer the

text messages, which included “You trying to die?” and

“now you will reap the repercussions,” as well as defen-

dant’s pointed message in response to Worthington’s

telling him that she had gone to the police: “...I am

going to beat the shit out of you.” Worthington described

to the police several experiences she had with defendant

over the prior months, including one in which defendant

had destroyed her phone, another in which he pushed her

down the stairs, and another in which he put her in a

chokehold. Worthington wrote a statement recounting the

threatening text messages, the prior physical injuries, and

the other information she had given to the police.

Worthington’s statement also described an incident

that had occurred just that morning, when Worthington

had been awakened by a crashing noise and saw defen-

dant in her bedroom. Defendant pushed her shoulder,

asked for a cigarette, tossed coins at her, and then left.

The prosecutor subsequently charged defendant with

home invasion, obstruction of justice, and domestic

violence.

Before trial, the prosecutor filed a notice of intent to

use verbal and written statements Worthington had

given to police on two separate occasions in August and

November 2009. Defendant filed motions in limine to

suppress Worthington’s statements and to suppress

information about a prior incident of abuse defendant

had inflicted on a different woman. The trial court

granted the motion concerning the incident with the

other woman, but denied the motion concerning Wor-

thington’s August and November statements to the

police.

2011] P

EOPLE V

EISSNER

443

By the time of trial in May 2010, Worthington was

pregnant with defendant’s child. When the prosecutor

called her to testify, Worthington recast and recharac-

terized many of the facts from her November state-

ments. She testified that when she went to the police in

November, she was enraged because defendant was

having a relationship with another woman. She further

testified that because of her anger she had embellished

and exaggerated the facts in her statement. For ex-

ample, she testified that although defendant was living

with her, she had told the police he was not living with

her. She also testified that the text messages she had

shown the police were out of context. She attempted to

justify the text message that said, “You trying to die?”

by explaining that the message was his response to her

text message informing him that she would be walking

home from a bar late at night. Similarly, she minimized

the conduct that had occurred on the morning she

wrote the statement and testified that defendant was

just checking on her to make sure she was all right. At

the close of the prosecutor’s direct examination, Wor-

thington testified that defendant had never beaten her

and had never threatened her.

II. ADMISSIBILITY OF PRIOR STATEMENTS AND

PRIOR ACTS EVIDENCE

A. STANDARD OF REVIEW

Defendant’s appeal requires interpretation and appli-

cation of MCL 768.27c and MCL 768.27b. We review de

novo issues of statutory interpretation. People v Swafford,

483 Mich 1, 7; 762 NW2d 902 (2009). We also review de

novo defendant’s assertion that as a matter of law, MCL

768.27c precluded the admission of Worthington’s state-

ments. People v Roper, 286 Mich App 77, 91; 777 NW2d

483 (2009). We review the trial court’s ultimate decision to

444 294 M

ICH

438 [Oct

admit the evidence for abuse of discretion. People v Feezel,

486 Mich 184, 192; 783 NW2d 67 (2010).

B. ADMISSIBILITY OF STATEMENTS MADE TO THE POLICE

1. APPLICABLE LAW

Our Legislature enacted MCL 768.27c as a substan-

tive rule of evidence reflecting specific policy concerns

about hearsay in domestic violence cases.

See generally

People v Pattison, 276 Mich App 613, 619-620; 741

NW2d 558 (2007) (addressing MCL 768.27a). In MCL

768.27c, the Legislature determined that under certain

circumstances, statements made to law enforcement

officers are admissible in domestic violence cases. The

statute allows trial courts to admit hearsay statements

into evidence if all the following conditions apply:

(a) The statement purports to narrate, describe, or

explain the infliction or threat of physical injury upon the

declarant.

(b) The action in which the evidence is offered under

this section is an offense involving domestic violence.

infliction or threat of physical injury. Evidence of a state-

ment made more than 5 years before the filing of the

current action or proceeding is inadmissible under this

section.

(d) The statement was made under circumstances that

would indicate the statement’s trustworthiness.

(e) The statement was made to a law enforcement

officer. [MCL 768.27c(1).]

“ ‘Hearsay’ is a statement, other than the one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” MRE 801(c). The Michigan Rules of

Evidence identify general circumstances in which hearsay is admissible.

See MRE 801 through MRE 806.

2011] P

EOPLE V

EISSNER

445

The statute goes on to give examples of “circumstances

relevant to the issue of trustworthiness” as well as to

define the terms “declarant” and “domestic violence.”

MCL 768.27c(2) and (5)(a) and (b).

2. INTERPRETATION AND APPLICATION OF MCL 768.27c(1)(a) AND (c)

Defendant argues that the trial court erred by admit-

ting Worthington’s November statements into evi-

dence. According to defendant, the trial court should

have excluded the statements because of the amount of

time that elapsed between the charged offense and

Worthington’s report to the police later the same day.

Defendant’s argument misconstrues subsections

(1)(a) and (c) of the statute. Neither subsection requires

that the statements at issue describe the charged do-

mestic violence offense. Subsection (1)(a) places a fac-

tual limitation on the admissibility of statements; sub-

section (1)(c) places a temporal limitation on

admissibility. Subsection (1)(a) requires only that the

statement “narrate, describe, or explain the infliction

or threat of physical injury upon the declarant.” MCL

768.27c(1)(a). Similarly, subsection (1)(c) requires that

the statement be made at or near the time of the

infliction or threat of injury described in subsection

(1)(a). We must interpret the statute according to the

Legislature’s plainly expressed meaning, and we must

apply the statute as written. People v Gardner, 482

Mich 41, 50; 753 NW2d 78 (2008). Taken together,

Certain testimony offered pursuant to MCL 768.27c may be subject to

challenge based on the Confrontation Clause. US Const, Am VI; Const

1963, art 1, § 20. In this case, however, defendant acknowledges that the

declarant (Worthington) was available for cross-examination; accord-

ingly, this case does not present a Confrontation Clause issue. Cf. Davis

v Washington, 547 US 813, 821-822; 126 S Ct 2266; 165 L Ed 2d 224

(2006).

446 294 M

ICH

438 [Oct

subsections (1)(a) and (c) indicate that a hearsay state-

ment can be admissible if the declarant made the

statement at or near the time the declarant suffered an

injury or was threatened with injury.

In this case, Worthington made her November state-

ments at or near the time defendant threatened her

with injury. The record demonstrates that Worthington

sought police assistance in the late afternoon or early

evening. Shortly before she arrived at the police station,

or perhaps while she was at the station, she received

extremely threatening text messages from defendant.

She described these messages in her written statement.

Even at trial, Worthington acknowledged that after she

informed defendant she had contacted the police, he

sent a message stating that he would beat her. Accord-

ingly, the trial court was not required to calculate or

consider the number of hours that elapsed between the

time of the charged offense and the time Worthington

gave the statements to the police. The court could

instead determine that Worthington’s statements met

the requirements of subsection (1)(a) because the state-

ments described text messages that threatened physical

injury, and met the requirements of subsection (1)(c)

because she made the statements at or very near the

time she received one or more of the threatening text

messages.

Moreover, as the prosecutor points out on appeal,

Worthington’s statements described physical injuries

that defendant had inflicted on her in the months

before she made the statement. In particular, she de-

scribed an August 2009 confrontation with defendant,

in which she thought she would die from the way he was

choking her. Further, she described the charged offense

in which defendant apparently forced entry into her

apartment, pushed her shoulder, and tossed coins at

2011] P

EOPLE V

EISSNER

447

her. For the purposes of MCL 768.27c, her descriptions

of the choking injury and of the charged offense fulfilled

both the factual requirement in subsection (1)(a) and

the temporal requirement in subsection (1)(c).

3. INTERPRETATION AND APPLICATION OF MCL 768.27c(2)

MCL 768.27c(2) provides guidance for trial courts to

assess whether a statement was made under circum-

stances that would indicate the statement’s trustwor-

thiness. MCL 768.27c(2) provides that

circumstances relevant to the issue of trustworthiness

include, but are not limited to, all of the following:

(a) Whether the statement was made in contemplation

of pending or anticipated litigation in which the declarant

was interested.

(b) Whether the declarant has a bias or motive for

fabricating the statement, and the extent of any bias or

motive.

other than statements that are admissible only under this

section.

Defendant argues that Worthington’s November

statements lacked any circumstances of trustworthi-

ness. Specifically, defendant argues that the written

statement does not fulfill the three considerations in

subsection (2) and that the trial court therefore erred

by admitting the statement. We disagree, on four

grounds.

First, Worthington’s statements were corroborated,

and thus the statements fulfilled subsection (2)(c). At

trial, Worthington testified that defendant had sent her

a threatening text message: when the prosecutor asked,

“What is it that you said or did to deserve the Defendant

to tell you [sic] that he was going to beat the shit out of

448 294 M

ICH

438 [Oct

you?” Worthington answered, “I’m sure that I was telling

him that I went to the police and wrote a statement.” The

prosecutor also presented corroborating testimony con-

cerning the August incident by eliciting testimony from

Worthington that during the August incident defendant

put her up against the wall with one hand. In addition, the

police officer who had responded to the August incident

testified that he observed red marks on both sides of

Worthington’s neck.

Second, subsection (2) does not limit the factors a trial

court may use to assess trustworthiness. Instead, subsec-

tion (2) is a nonexclusive list of possible circumstances

that may demonstrate trustworthiness. The subsection

expressly states that the circumstances relevant to trust-

worthiness are not limited to the three examples given in

subsections (2)(a), (b), and (c). Given that these subsec-

tions are not the sole means to establish trustworthiness,

a lack of proof on the subsections did not require the trial

court to exclude the statements in this case.

Third, subsection (2) does not require a trial court to

make factual findings regarding the three circum-

stances. Rather, the subsection permits the court to

consider all factors that pertain to the trustworthiness

of the proffered statement. In this case, before ruling on

the admissibility of the statements, the trial court

inquired about Worthington’s demeanor at the time she

made the statements and about whether she contempo-

raneously indicated any fear of defendant. Subsection

(2) did not require the court to ask specific questions

regarding the circumstances described in the statutory

subdivisions. The trial court made a valid determina-

tion that Worthington’s statements were trustworthy

on the basis of the information presented to the court.

Fourth, contrary to defendant’s contention, subsection

(2)(a) does not require a trial court to discredit a state-

2011] P

EOPLE V

EISSNER

449

ment given by a victim to the police. Defendant contends

that because Worthington made her statements to the

police, she must have made the statements in contempla-

tion of litigation. Defendant then concludes that subsec-

tion (2)(a) required the trial court to disregard or discredit

Worthington’s statements on the ground that they were

made in contemplation of litigation.

Defendant’s interpretation of subsection (2)(a) would

require all domestic violence victims to endure the

indignity of tainted trustworthiness if they took the

step of reporting the charged offense to the police. This

interpretation is in derogation of the statutory struc-

ture. According to subsection 1(e), the only statements

admissible under the statute are statements made to

law enforcement officers. To interpret subsection (2)(a)

to impose credibility concerns on victims’ police state-

ments would be to ignore subsection 1(e), which renders

those same statements admissible. This Court cannot

interpret subsection (2)(a) to require trial courts to

discount the credibility of the very statements the

statute was designed to admit. See People v Peltola, 489

Mich 174, 181; 803 NW2d 140 (2011) (stating that

courts must read parts of a statute to give effect to the

statute as a whole). Accordingly, when the declarant is

an alleged domestic violence victim, the reference in

subsection (2)(a) to statements in contemplation of

litigation does not pertain to the victim’s report of the

charged offense. Rather, the subsection pertains to

litigation in which the declarant could gain a property,

financial, or similar advantage, such as divorce, child

custody, or tort litigation. In this case, there was no

evidence that Worthington’s statements could give her

any advantage in any related litigation. Therefore,

subsection (2)(a) was not applicable to Worthington’s

statements. In sum, the trial court properly applied

450 294 M

ICH

438 [Oct

MCL 768.27c to find that Worthington’s prior state-

ments to the police were admissible.

C. ADMISSIBILITY OF PRIOR ACTS EVIDENCE

1. APPLICABLE LAW

MCL 768.27b(1) provides, in pertinent part, that “in

a criminal action in which the defendant is accused of

an offense involving domestic violence, evidence of the

defendant’s commission of other acts of domestic vio-

lence is admissible for any purpose for which it is

relevant, if it is not otherwise excluded under Michigan

rule of evidence 403.” Evidence is relevant if it has “any

tendency to make the existence of any fact that is of

consequence to the determination of the action more

probable or less probable than it would be without the

evidence.” MRE 401. Relevant evidence may be ex-

cluded under MRE 403 “if its probative value is sub-

stantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or need-

less presentation of cumulative evidence.” MRE 403.

Evidence offered against a criminal defendant is, by its

very nature, prejudicial to some extent. People v Fisher,

449 Mich 441, 451; 537 NW2d 577 (1995). Exclusion of the

evidence is appropriate only when unfair prejudice out-

weighs the probative value of the evidence, meaning

“there is a danger that the evidence will be given undue or

preemptive weight by the jury” or “it would be inequitable

to allow use of the evidence.” People v Blackston, 481

Mich 451, 462; 751 NW2d 408 (2008).

2. APPLICATION OF MCL 768.27b

Defendant asserts that the trial court erred by ad-

mitting evidence of his prior acts, because those acts

2011] P

EOPLE V

EISSNER

451

differed from the charged offense. We disagree. Prior

acts of domestic violence can be admissible under MCL

768.27b regardless of whether the acts were identical to

the charged offense. See, e.g., People v Cameron, 291

Mich App 599, 608-612; 806 NW2d 371 (2011).

Defendant also asserts that even if the evidence of

prior acts of domestic violence was relevant, the evi-

dence was unfairly prejudicial. We conclude that the

trial court was within its discretion in finding the prior

acts admissible. Any potential unfair prejudice to defen-

dant was substantially outweighed by the evidence’s

probative value. The prior acts of domestic violence

illustrated the nature of defendant’s relationship with

Worthington and provided information to assist the

jury in assessing her credibility.

III. SUFFICIENCY OF THE EVIDENCE

A. STANDARD OF REVIEW

This Court reviews de novo defendant’s challenge to

the sufficiency of the evidence. People v Cline, 276 Mich

App 634, 642; 741 NW2d 563 (2007). We view the

evidence in the light most favorable to the prosecution

to determine whether a rational trier of fact could have

found the essential elements of the crime to have been

proved beyond a reasonable doubt. Id.

B. APPLICABLE LAW ON HOME INVASION AND DOMESTIC VIOLENCE

First-degree home invasion is defined in MCL

750.110a(2):

A person who breaks and enters a dwelling with intent

to commit a felony, larceny, or assault in the dwelling, a

person who enters a dwelling without permission with

intent to commit a felony, larceny, or assault in the dwell-

ing, or a person who breaks and enters a dwelling or enters

452 294 M

ICH

438 [Oct

a dwelling without permission and, at any time while he or

she is entering, present in, or exiting the dwelling, commits

a felony, larceny, or assault is guilty of home invasion in the

first degree if at any time while the person is entering,

present in, or exiting the dwelling either of the following

circumstances exists:

(a) The person is armed with a dangerous weapon.

(b) Another person is lawfully present in the dwelling.

Second-offense domestic assault is defined in MCL

750.81(3):

An individual who commits an assault or an assault and

battery in violation of [MCL 750.81(2)], and who has

previously been convicted of assaulting or assaulting and

battering his or her spouse or former spouse, an individual

with whom he or she has or has had a dating relationship,

an individual with whom he or she has had a child in

common, or a resident or former resident of his or her

household, under any of the following, may be punished by

imprisonment for not more than 1 year or a fine of not

more than $1,000.00, or both:

(a) This section or an ordinance of a political subdivision

of this state substantially corresponding to this section.

(b) [MCL 750.81a, 750.82, 750.83, 750.84, or 750.86].

subdivision of another state substantially corresponding to

this section or [MCL 750.81a, 750.82, 750.83, 750.84, or

750.86].

C. EVIDENCE ON HOME INVASION AND

DOMESTIC VIOLENCE CHARGES

Both the home invasion charge and the domestic

violence charge required the prosecution to prove that

defendant assaulted Worthington. Defendant contends

that the prosecution failed to show that he assaulted

Worthington. Neither MCL 750.110a nor MCL

750.81(3) defines “assault.” Instead, Michigan gener-

2011] P

EOPLE V

EISSNER

453

ally defines an assault as “either an attempt to commit

a battery or an unlawful act that places another in

reasonable apprehension of receiving an immediate

battery.” People v Starks, 473 Mich 227, 234; 701 NW2d

136 (2005). “A battery is an intentional, unconsented

and harmful or offensive touching of the person of

another....”People v Reeves, 458 Mich 236, 240 n 4;

580 NW2d 433 (1998).

In this case, the prosecution presented sufficient

evidence to prove that defendant committed an assault.

Defendant threw change at Worthington and pushed

her. These acts constituted an offensive touching, from

which a reasonable jury could find that defendant

assaulted Worthington.

D. APPLICABLE LAW ON OBSTRUCTION OF JUSTICE CHARGE

Obstruction of justice is a common-law charge that can

be prosecuted under MCL 750.505 and “is generally

understood as an interference with the orderly adminis-

tration of justice.” People v Thomas, 438 Mich 448, 455;

475 NW2d 288 (1991). Obstruction of justice is considered

a category of offenses; a common example is witness

coercion. People v Tower, 215 Mich App 318, 320; 544

NW2d 752 (1996). Coercion involves an attempt to dis-

suade a witness from testifying, and “[w]ords alone may

be sufficient to constitute the crime.” Id.

E. EVIDENCE ON OBSTRUCTION OF JUSTICE CHARGE

The prosecution presented evidence that defendant

sent several harassing text messages to Worthington. At

least one of the text messages explicitly referred to a

police investigation, while the other text messages

implied police involvement in the dispute. For example,

the investigating officer testified that some of the text

messages stated:

454 294 M

ICH

438 [Oct

“You made grave mistake and now you will reap the

repercussions.”

“If you really did that, then I am going to beat the shit

out of you.”

“How did I fuck you? Whatever. I’ll be there in a bit. If

you really called the cops, you will really get beat bad.”

A reasonable jury could find that these messages

constituted obstruction of justice. Defendant sent the

messages to Worthington shortly after breaking into

her apartment and assaulting her. The messages made

it clear that he would harm Worthington if she made a

statement to police. By sending the text messages to

Worthington, defendant “wilfully and corruptly ham-

per[ed], obstruct[ed], and interfere[d] with a proper and

legitimate criminal investigation.” People v Somma,

123 Mich App 658, 662; 333 NW2d 117 (1983).

IV. ALLEGED PROSECUTORIAL MISCONDUCT

A. STANDARD OF REVIEW

We review claims of prosecutorial misconduct to

determine whether the defendant received a fair trial.

People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659

(1995). Unpreserved arguments are reviewed for plain

error that affected the defendant’s substantial rights.

People v Carines, 460 Mich 750, 763; 597 NW2d 130

(1999). “Reversal is warranted only when plain error

resulted in the conviction of an actually innocent defen-

dant or seriously affected the fairness, integrity, or

public reputation of judicial proceedings.” People v

Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003).

B. APPLICABLE LAW

A prosecutor’s role within our judicial system is to

seek justice and not merely to convict. People v Erb,48

2011] P

EOPLE V

EISSNER

455

Mich App 622, 631; 211 NW2d 51 (1973). Prosecutors

have discretion on how to argue the facts and reason-

able inferences arising therefrom, and are not limited to

presenting their arguments in the blandest terms pos-

sible. People v Dobek, 274 Mich App 58, 66; 732 NW2d

546 (2007). “A prosecutor’s comments are to be evalu-

ated in light of defense arguments and the relationship

the comments bear to the evidence admitted at trial.”

Id. at 64. However, it is improper for a prosecutor to

appeal to the jury’s sympathy for the victim. People v

Dalessandro, 165 Mich App 569, 581; 419 NW2d 609

(1988).

C. PROSECUTOR’S OPENING STATEMENT AND CLOSING ARGUMENT

Defendant first asserts that the prosecutor unduly

appealed to the jury’s sympathy by reading Worthing-

ton’s written statement during his opening statement.

We disagree. The prosecutor was stating facts that he

intended to prove at trial, which is permissible in

opening statements. People v Ericksen, 288 Mich App

192, 200; 793 NW2d 120 (2010). Reading this statement

was not so inflammatory that it prejudiced defendant.

Therefore, it was not improper for the prosecutor to

read Worthington’s statement.

Defendant next asserts that the prosecutor used the

prestige of his office to bolster a police witness’s cred-

ibility. “Included in the list of improper prosecutorial

commentary or questioning is the maxim that the

prosecutor cannot vouch for the credibility of his wit-

nesses to the effect that he has some special knowledge

concerning a witness’ truthfulness.” Bahoda, 448 Mich

at 276. In People v Boske, 221 Mich 129, 133; 190 NW

656 (1922), the prosecutor inappropriately commented

to the jury that the sheriff knew that he had the right

defendant on trial for the crime. This argument urged

456 294 M

ICH

438 [Oct

the jury to convict the defendant because the sheriff

believed the defendant was guilty, instead of indepen-

dently considering his guilt. Id. at 134. Defendant

contends that the prosecution encouraged a guilty ver-

dict in his closing argument in a manner similar to the

improper comments in Boske. We disagree. The pros-

ecutor’s comments in this case summarized testimony

elicited by defense counsel during cross-examination.

Moreover, the trial court instructed the jury to consider

the testimony of police officers the same as that of any

other witness, to determine the facts of the case, to

apply the law as given by the court, and to decide

whether the prosecution proved the elements of the

crime beyond a reasonable doubt. Jurors are presumed

to follow the instructions of the court. People v Graves,

458 Mich 476, 486; 581 NW2d 229 (1998).

Defendant additionally asserts that the prosecutor

engaged in misconduct when he introduced facts that

were otherwise not in evidence by explaining how

domestic violence victims will recant or attempt to

explain initial statements implicating their alleged

abusers. An attorney may not refer to facts that are not

in the record. People v Knolton, 86 Mich App 424, 428;

272 NW2d 669 (1978). In this case, the prosecutor did

not introduce specific evidence regarding recantation of

domestic violence victims’ testimony. However, reversal

is not required because the trial court clearly instructed

the jury that “[t]he lawyer[s’] statements and argu-

ments are not evidence.” See Graves, 458 Mich at 486.

Defendant also asserts that the prosecutor deni-

grated defense counsel by stating that he could tell the

defense was “in trouble.” Prosecutors are allowed to

argue “that a defendant’s story is unworthy of belief as

long as such argument is based on the evidence rather

than on matters not of record or the prestige of the

2011] P

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EISSNER

457

prosecutor’s office.” People v Pawelczak, 125 Mich App

231, 238; 336 NW2d 453 (1983). To the extent that the

prosecutor’s comment exceeded the permissible

bounds, any prejudicial effect was cured by the trial

court’s instructions that “[y]ou must not let sympathy

or prejudice influence your decision” and that “[t]he

lawyer[s’] statements and arguments are not evidence.”

See People v Unger, 278 Mich App 210, 235; 749 NW2d

272 (2008).

V. ARGUMENTS IN DEFENDANT’S STANDARD 4 BRIEF

A. STANDARD OF REVIEW

Defendant presents two challenges in his Standard 4

brief.

First, defendant contends that the jury instruc-

tions were erroneous. However, defense counsel ex-

pressly agreed to the proposed jury instructions and

thereby waived appellate review of the instructions.

People v Lueth, 253 Mich App 670, 688; 660 NW2d 322

(2002). Second, defendant contends that his counsel

was ineffective. We review challenges to the effective-

ness of counsel to determine whether defendant has

met the heavy burden of showing that counsel’s perfor-

mance was deficient and that he was prejudiced by the

deficiency. See People v Carbin, 463 Mich 590, 600; 623

NW2d 884 (2001). We apply a presumption that coun-

sel’s challenged actions were sound trial strategy, and

the alleged deficiency required must be so serious that

counsel was not performing as guaranteed by the Sixth

Amendment. Id.; US Const, Am VI. A defendant must

show that the error was so prejudicial that the outcome

would have been different if trial counsel had not

committed the error. Id.

See Administrative Order No. 2004-6.

458 294 M

ICH

438 [Oct

B. APPLICABLE LAW ON EFFECTIVENESS OF COUNSEL

Both the United States and the Michigan Constitu-

tions guarantee a defendant the right to counsel. US

Const, Am VI; Const 1963, art 1, § 20. This right to

counsel includes the right to effective assistance of

counsel. United States v Cronic, 466 US 648, 654; 104 S

Ct 2039; 80 L Ed 2d 657 (1984). Our Supreme Court has

held that the Michigan Constitution guarantees a de-

fendant the same right to counsel as the United States

Constitution, and Michigan has adopted the standard

for evaluating the effectiveness of counsel set out by the

United States Supreme Court in Strickland v Washing-

ton, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

People v Pickens, 446 Mich 298, 326; 521 NW2d 797

(1994).

Strickland set forth a two-part test to determine

whether defense counsel was effective in a particular

case. First, the defendant must show that counsel’s

“representation fell below an objective standard of

reasonableness.” Strickland, 466 US at 688. Second,

the defendant must show that “there is a reasonable

probability that, but for counsel’s unprofessional er-

rors, the result of the proceeding would have been

different.” Id. at 694. Proof of both prongs is needed to

show that a conviction “ ‘resulted from a breakdown in

the adversary process that rendered the result of the

proceeding unreliable....’”Bell v Cone, 535 US 685,

695; 122 S Ct 1843; 152 L Ed 2d 914 (2002), quoting

Strickland, 466 US at 687. The relevant inquiry “is not

whether a defendant’s case might conceivably have

been advanced by alternate means,” but whether de-

fense counsel’s errors were so serious that they de-

prived the defendant of a fair trial. People v LeBlanc,

465 Mich 575, 582; 640 NW2d 246 (2002).

2011] P

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EISSNER

459

C. REVIEW OF COUNSEL’S EFFECTIVENESS

Defendant first argues that trial counsel should have

objected to comments that were inappropriately made

by the prosecution during opening statements and

closing argument. As discussed in part IV of this opin-

ion, we have concluded that any prejudice resulting

from the two comments was cured by the jury instruc-

tions. Accordingly, we conclude that the lack of objec-

tions does not require reversal.

Defendant next argues that his counsel was ineffec-

tive for failing to subpoena evidence and for failing to

interview witnesses that would have established that he

lived in the apartment with Worthington. We disagree.

Defense counsel’s decision regarding which witnesses to

call is presumed to be sound trial strategy. People v

Seals, 285 Mich App 1, 21; 776 NW2d 314 (2009).

Defense counsel adequately presented the defense that

defendant lived at the apartment. Defendant provides

nothing beyond his assertions to establish that addi-

tional witnesses would have provided different evidence

on this issue.

Last, defendant argues that his counsel was ineffective

for failing to request a jury instruction on his defense

theory, i.e., that he had permission to be in the apartment

because he lived there with Worthington. Again, we dis-

agree. The charged offense required the prosecutor to

prove that defendant broke into and entered a dwelling, in

keeping with CJI2d 25.2a. The record indicates that

defense counsel researched the issue and stated that he

was satisfied on that issue. Defense counsel was not

ineffective regarding this decision.

Affirmed.

WENS

,P.J., and J

ANSEN

, J., concurred with

O’C

ONNELL

,J.

460 294 M

ICH

438 [Oct

PEOPLE v WILLIAMS

Docket No. 299809. Submitted September 8, 2011, at Grand Rapids.

Decided September 15, 2011. Approved for publication October 25,

2011, at 9:05 a.m. Leave to appeal denied, 491 Mich 854.

Robert J. Williams, Jr., already serving a jail sentence for domestic

violence, was convicted of being a prisoner in possession of a

controlled substance and delivery of less than five kilograms of

marijuana in the Berrien Circuit Court. The court, Angela M.

Pasula, J., sentenced defendant to 34 months to 30 years’ impris-

onment for the prisoner-in-possession conviction and 34 months to

15 years’ imprisonment for the delivery conviction. The court

ordered that the sentences be served consecutively to each other

and to the domestic-violence sentence. The court further ordered

that defendant be given credit for 27 days that he spent in jail after

the expiration of the domestic-violence sentence and before his

sentencing on the prisoner-in-possession and delivery convictions,

but the court only applied the credit toward the prisoner-in-

possession sentence. Defendant appealed.

The Court of Appeals held:

1. The Double Jeopardy Clause bars the imposition of multiple

punishments for the same offense unless multiple punishments

are specifically authorized by the Legislature. Absent clear legis-

lative intent to impose multiple punishments, a court must deter-

mine whether the sentences were imposed for the same offense as

determined by the statutory elements of the offenses. If each

offense requires proof of a fact that the other does not, they are

separate offenses notwithstanding a substantial overlap in the

proof offered to establish the crimes. To prove a charge of prisoner

in possession of a controlled substance, a prosecutor must show

that the individual was a prisoner, but an individual need not be a

prisoner to be convicted of delivery of less than five kilograms of

marijuana. Further, a person need not deliver a controlled sub-

stance to be a prisoner in possession. Thus, the offenses of prisoner

in possession and delivery of less than five kilograms of marijuana

each require proof of a fact that the other does not, and a person

may be convicted of both offenses based on the same transaction.

2011] P

EOPLE V

ILLIAMS

461

2. If the issue is properly preserved, a new trial may be granted

on the basis that the evidence preponderates heavily against the

verdict and a serious miscarriage of justice would occur if the

conviction were allowed to stand. A challenge to the sufficiency of

the evidence need not be preserved. The evidence will be reviewed

in a light most favorable to the prosecution to determine whether

any trier of fact could find the essential elements of the crime were

proven beyond a reasonable doubt. In this case, the evidence was

more than sufficient. The evidence established that the defendant

had bragged to other inmates that he could supply them with

marijuana in the jail. He then approached another inmate and told

him that he would trade marijuana for candy. The other inmate

reported the offer to jail officials who arranged for a controlled

exchange. Before the transaction, the officials searched the infor-

mant to ensure that he did not already possess marijuana. The

informant then exchanged candy for a package which was found to

contain marijuana. A surveillance camera recorded the transac-

tion. Direct view of the exchange by a police officer was not

required.

3. Defendant failed to support his claim that he did not receive

a fair trial because two members of the jury were biased given that

the challenged jurors were excused before the trial.

4. A consecutive sentence may be imposed only if specifically

authorized by statute. Under MCL 768.7a(1), a person who is

incarcerated in a penal or reformatory institution and who com-

mits a crime during that incarceration which is punishable by

imprisonment in a penal or reformatory institution must, upon

conviction of that crime, be sentenced as provided by law. The term

of imprisonment imposed for the crime must begin to run at the

expiration of the term or terms of imprisonment which the person

is serving or has become liable to serve. An inmate has become

liable to serve a sentence only if that sentence was imposed, or the

act underlying the sentence occurred, in the past. Thus, a defen-

dant convicted of an offense committed while incarcerated for a

prior offense will be given a sentence consecutive to the sentence

he or she is currently serving for that prior offense. And, if the

defendant has committed any offenses between his or her original

sentencing offense and the new sentencing offense, the defen-

dant’s new sentence will also be consecutive to the sentences for

those prior offenses. However, if an incarcerated defendant com-

mits two offenses contemporaneously and those offenses are tried

and sentenced together, the defendant has become liable to serve

the sentences at the same time and the consecutive-sentencing

statute is inapplicable. In this case, defendant was simultaneously

462 294 M

ICH

461 [Oct

convicted of contemporaneous offenses, and the trial court improp-

erly ordered that the sentences for his prisoner-in-possession and

delivery convictions run consecutively to each other. The two

sentences were required to be concurrent, although consecutive to

his prior sentence for domestic violence.

5. Under MCL 769.11b, whenever any person is convicted of

any crime and has served any time in jail before sentencing

because of being denied or unable to furnish bond for the offense

of which he or she is convicted, the trial court in imposing sentence

must grant credit against the sentence for the time served in jail

prior to sentencing. In this case, defendant completed his

domestic-violence sentence shortly after he was convicted of the

controlled-substances offenses, and he continued to be incarcer-

ated pending his sentencing on the controlled-substances offenses.

Defendant was entitled to credit for the time spent in jail pending

sentencing. Because the court erroneously ordered that defen-

dant’s sentences had to run consecutively, the court also errone-

ously applied defendant’s jail credit only to the prisoner-in-

possession sentence. The court should have applied the jail credit

to both sentences.

6. Under prior record variable (PRV) 7 of the sentencing

guidelines, MCL 777.57, a court must assess 10 points if the

defendant has one concurrent or subsequent conviction. The trial

court properly assessed 10 points for PRV 7 in light of defendant’s

concurrent controlled-substances convictions.

Affirmed in part, vacated in part, and remanded for correction

of sentence.

1. C

ONSTITUTIONAL

AW —

OUBLE

EOPARDY —

RISONER IN

OSSESSION OF A

ONTROLLED

UBSTANCE —

ELIVERY OF

ESS

HAN

IVE

ILOGRAMS OF

ARIJUANA

The Double Jeopardy Clause bars the imposition of multiple pun-

ishments for the same offense unless multiple punishments are

specifically authorized by the Legislature; absent clear legislative

intent to impose multiple punishments, a court must determine

whether the sentences were imposed for the same offense as

determined by the statutory elements of the offenses; if each

offense requires proof of a fact that the other does not, they are

separate offenses notwithstanding a substantial overlap in the

proof offered to establish the crimes; to prove a charge of prisoner

in possession of a controlled substance, a prosecutor must show

that the individual was a prisoner, but an individual need not be a

prisoner to be convicted of delivery of less than five kilograms of

marijuana, and a person need not deliver a controlled substance to

2011] P

EOPLE V

ILLIAMS

463

be a prisoner in possession; thus, the offenses of prisoner in

possession and delivery of less than five kilograms of marijuana

each require proof of a fact that the other does not, and a person

may be convicted of both offenses based on the same transaction

(US Const, Am V; Const 1963, art 1, § 15; MCL 333.7401[1], MCL

333.7401[2][d][iii], MCL 801.263[2]).

2. S

ENTENCES —

ONSECUTIVE

ENTENCES —

RISONS AND

RISONERS

A consecutive sentence may be imposed only if specifically autho-

rized by statute; a person who is incarcerated in a penal or

reformatory institution and who commits a crime during that

incarceration which is punishable by imprisonment in a penal or

reformatory institution must, upon conviction of that crime, be

sentenced as provided by law; the term of imprisonment imposed

for the crime must begin to run at the expiration of the term or

terms of imprisonment which the person is serving or has become

liable to serve; an inmate has become liable to serve a sentence

only if that sentence was imposed, or the act underlying the

sentence occurred, in the past; thus, a defendant convicted of an

offense committed while incarcerated for a prior offense will be

given a sentence consecutive to the sentence he or she is currently

serving for that prior offense; and, if the defendant has committed

any offenses between his or her original sentencing offense and the

new sentencing offense, the defendant’s new sentence will also be

consecutive to the sentences for those prior offenses; however, if an

incarcerated defendant commits two offenses contemporaneously

and those offenses are tried and sentenced together, the defendant

has become liable to serve the sentences at the same time and the

consecutive-sentencing statute is inapplicable (MCL 768.7a[1]).

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Arthur J. Cotter, Prosecuting Attor-

ney, and Elizabeth A. Wild, Assistant Prosecuting At-

torney, for the people.

Michael A. Faraone, PC (by Michael A. Faraone), and

Robert J. Williams, Jr., in propria persona, for defen-

dant.

Before: G

LEICHER

,P.J., and H

OEKSTRA

and S

TEPHENS

JJ.

464 294 M

ICH

461 [Oct

URIAM

. While serving a 330-day jail sentence for

domestic violence, defendant decided to trade mari-

juana for a candy bar. Unfortunately for defendant, the

other inmate involved in the trade acted as an infor-

mant for jail officials. As a result, defendant was

charged with and convicted of being a prisoner in

possession of a controlled substance, MCL 801.263(2),

and delivery of marijuana, MCL 333.7401(1) and

(2)(d)(iii). Defendant was sentenced as a fourth-offense

habitual offender, MCL 769.12, to 34 months to 30

years’ imprisonment for the prisoner-in-possession con-

viction and 34 months to 15 years’ imprisonment for

the delivery conviction, to be served consecutively to

each other and to the domestic-violence sentence he was

serving when he committed the new offenses.

Both through appointed appellate counsel and in a

Standard 4 appellate brief,

defendant challenges the

sufficiency of the evidence supporting his convictions,

the propriety of making the prisoner-in-possession and

delivery sentences consecutive to each other, and the

constitutionality of convicting and sentencing him for

both possession and delivery pertaining to a single

underlying event. Because the prosecution presented

sufficient evidence to support defendant’s convictions

and defendant was not twice placed in jeopardy for the

same offense, we affirm defendant’s convictions.

However, the trial court improperly ordered defen-

dant’s sentences for his prisoner-in-possession and de-

livery convictions to run consecutively to each other. As

a result of that error, the court also erroneously applied

defendant’s 27 days of jail credit only to the prisoner-

in-possession sentence. Accordingly, we vacate the judg-

ment of sentence and remand to allow the circuit court

See Administrative Order 2004-6, Standard 4.

2011] P

EOPLE V

ILLIAMS

465

to impose concurrent sentences for these two offenses

and to apply the jail credit to which defendant is

entitled to both sentences.

I. UNDERLYING FACTS AND PROCEEDINGS

On March 17, 2010, defendant was housed in dormi-

tory 2-L at the Berrien County Jail. Defendant was

serving a 330-day sentence for domestic violence. Fel-

low inmate Jimmie Ray Bradley was assigned to work

duty and was sweeping and mopping the floors near 2-L

when he was summoned by defendant. Bradley testified

that defendant stated that he had marijuana to sell and

asked Bradley if he would advertise this information to

other inmates.

Bradley subsequently approached the jail guard and

asked to speak to Berrien County Sheriff’s Deputy Juan

Mata. Bradley informed Mata about defendant’s re-

quest. Mata directed Bradley to return to 2-L and ask

defendant if he still possessed the marijuana. Bradley

did so, and when he returned, he informed Mata that

defendant still possessed the marijuana and wanted to

trade it for a pack of Reese’s Peanut Butter Cups from

the jail commissary.

Bradley agreed to cooperate with the deputies and

engage in a controlled buy of marijuana from defen-

dant. The deputies conducted a strip search of Bradley

to ensure that he did not have any evidence on his

person. Mata gave Bradley an unopened Reese’s Peanut

Butter Cups package and instructed Bradley on where

to walk and stand to ensure that the trade was captured

by security cameras. Mata walked Bradley as close to

2-L as he could without being seen by defendant. Other

deputies remained in the jail’s control booth to observe

the security footage while the sale was conducted.

466 294 M

ICH

461 [Oct

Bradley approached dormitory 2-L and handed de-

fendant the Reese’s Peanut Butter Cups package

through the cell bars. Defendant, in turn, handed

Bradley marijuana folded inside a makeshift toilet-

paper packet. Bradley turned and walked back toward

Mata. Bradley showed Mata the toilet-paper packet,

and Mata walked Bradley to the control room. Once

inside, the deputies took the toilet-paper packet into

evidence and strip searched Bradley again. Later foren-

sic testing revealed that the toilet-paper packet con-

tained 0.102 grams of marijuana.

Approximately 20 minutes after the transaction, a

team of deputies searched the entire dormitory and

searched defendant’s person. In defendant’s breast

pocket, the deputies found scraps of toilet paper and one

remaining Reese’s Peanut Butter Cup inside its pack-

age. The deputies found no marijuana on defendant or

in the dormitory. A canine unit was brought to the scene

and the dog alerted on a book found on the ground next

to defendant’s bunk. However, the deputies found noth-

ing inside the book.

Fellow inmate Vel Gene Sampson testified that de-

fendant was “digging around in his [defendant’s] stuff”

on the morning of March 17, 2010. About 10 or 15

minutes later, Sampson witnessed Bradley approach the

cell bars of the dormitory. Sampson saw Bradley hand a

candy bar to defendant and saw defendant hand an

unidentified object to Bradley. At some point, defendant

bragged to the other inmates in the dormitory that “he

could get them whatever they wanted” in the jail.

Sampson specifically heard defendant say that he could

get marijuana for other inmates.

Defendant testified on his own behalf. He denied

exchanging marijuana for candy. Instead, defendant

indicated that he offered to trade Bradley two commis-

2011] P

EOPLE V

ILLIAMS

467

sary items in the future if Bradley would get him a

candy bar that day. Defendant asserted that when

Bradley gave him the candy bar, he merely shook

Bradley’s hand and did not give him marijuana. More-

over, defendant stated that he did not know Bradley

and, therefore, would not have trusted Bradley to

conduct such an exchange. Rather, if defendant had

wanted to trade marijuana, he would have contacted

another inmate assigned to work duty, one he had

known for almost 40 years.

Ultimately, a jury disbelieved defendant’s version of

events and convicted defendant as charged. The court

subsequently sentenced defendant to two separate terms

of imprisonment for the delivery and prisoner-in-

possession convictions. The court ordered that those sen-

tences be served consecutively to each other and to the

domestic-violence sentence that defendant was serving at

the time of the new offenses. The Michigan Department of

Corrections terminated defendant’s jail sentence for the

domestic-violence conviction on June 15, 2010, four days

after the jury trial convictions for prisoner in possession

and delivery. At the July 12, 2010 sentencing, the court

awarded defendant 27 days of jail credit for time served

since the June 15 termination of his domestic-violence

sentence. However, the court applied that credit only to

the prisoner-in-possession sentence. Defendant now ap-

peals his convictions and sentences.

II. DOUBLE JEOPARDY

Through his appellate attorney, defendant contends

that his convictions for both possession and delivery,

arising from the single sale of marijuana, violate his

constitutional right to be free from double jeopardy. A

criminal defendant is protected from being “twice put in

jeopardy” for the same offense under both US Const, Am

468 294 M

ICH

461 [Oct

V and Const 1963, art 1, § 15. As a constitutional issue, we

review de novo a defendant’s double-jeopardy challenge.

People v Ream, 481 Mich 223, 226; 750 NW2d 536 (2008).

Under the Michigan Constitution’s Double Jeopardy

Clause, a defendant is given “ ‘three related protec-

tions: (1) it protects against a second prosecution for the

same offense after acquittal; (2) it protects against a

second prosecution for the same offense after convic-

tion; and (3) it protects against multiple punishments

for the same offense.’ ” Id. at 227, quoting People v

Nutt, 469 Mich 565, 574; 677 NW2d 1 (2004). This case

involves a “multiple punishments” issue because defen-

dant challenges the court’s duplicative sentencing for

what he believes was one act.

The state is generally barred from imposing multiple

sentences for the same offense. However, “[w]here the

Legislature does clearly intend to impose such multiple

punishments, imposition of such sentences does not

violate the Constitution, regardless of whether the

offenses share the same elements.” People v Smith, 478

Mich 292, 316; 733 NW2d 351 (2007) (quotation marks

and citation omitted). Absent such clear legislative

intent to impose multiple punishments, this Court must

determine whether the sentences were imposed for the

“same offense” as defined by the test in Blockburger v

United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed

306 (1932). Smith, 478 Mich at 315-316. The Block-

burger test “focuses on the statutory elements of the

offense. If each requires proof of a fact that the other

does not, the Blockburger test is satisfied, notwith-

standing a substantial overlap in the proof offered to

establish the crimes.” Nutt, 469 Mich at 576 (quotation

marks and citation omitted).

Defendant confuses the double-jeopardy issue by struc-

turing his appellate argument as if he was con-

2011] P

EOPLE V

ILLIAMS

469

victed of simple possession of marijuana. Defendant was

actually convicted of being a prisoner in possession of a

controlled substance in violation of MCL 801.263(2),

which provides, “a prisoner shall not possess or have

under his or her control any...controlled substance.”

To establish a defendant’s guilt under MCL 801.263(2),

the prosecution must prove (1) that the defendant was

a prisoner who (2) possessed or controlled (3) a con-

trolled substance.

Defendant was also convicted of delivery of less than

five kilograms of marijuana in violation of MCL

333.7401(1) and (2)(d)(iii). The elements of delivery of less

than five kilograms of marijuana are (1) the defendant

delivered a controlled substance, (2) the controlled sub-

stance was marijuana or a mixture containing marijuana,

(3) the defendant knew he was delivering marijuana, and

(4) the delivery consisted of less than five kilograms of

marijuana. See MCL 333.7401(1) and (2)(d)(iii); People v

Mass, 464 Mich 615, 638; 628 NW2d 540 (2001).

The statutory offenses in this case each possess an

element not found in the other. To prove a charge of

prisoner in possession, the prosecution must show that

the individual was a prisoner. An individual need not be

a prisoner to be convicted of delivery of less than five

kilograms of marijuana. Moreover, a person need not

deliver a controlled substance to be a prisoner in

possession. Because “each [offense] requires proof of a

fact that the other does not, the Blockburger test is

satisfied,” Nutt, 469 Mich at 576 (quotation marks and

citation omitted), and defendant’s constitutional rights

were not violated.

III. GREAT WEIGHT OR SUFFICIENCY OF THE EVIDENCE

Defendant, through his Standard 4 brief, argues that

his convictions are either against the great weight of

470 294 M

ICH

461 [Oct

the evidence or based on legally insufficient evidence.

Specifically, defendant contends that his guilt cannot be

established given that the security footage fails to show

any object passed from defendant to Bradley, the depu-

ties were unable to see the actual transaction, and the

deputies lost sight of Bradley for a few seconds on his

route from 2-L to Deputy Mata following the transac-

tion.

Defendant failed to request a new trial based on the

great weight of the evidence and, therefore, this chal-

lenge is not preserved for appellate review. Generally,

however, this Court would review such a challenge to

determine if “the evidence preponderates heavily

against the verdict and a serious miscarriage of justice”

would occur if the conviction were allowed to stand.

People v Lemmon, 456 Mich 625, 642; 576 NW2d 129

(1998). A defendant need not take any action to pre-

serve a challenge to the sufficiency of the evidence.

When reviewing a defendant’s challenge to the suffi-

ciency of the evidence, we review “the evidence in a

light most favorable to the prosecutor to determine

whether any trier of fact could find the essential ele-

ments of the crime were proven beyond a reasonable

doubt.” People v Robinson, 475 Mich 1, 5; 715 NW2d 44

(2006). A prosecutor need not present direct evidence of

a defendant’s guilt. Rather, “[c]ircumstantial evidence

and reasonable inferences arising from that evidence

can constitute satisfactory proof of the elements of a

crime.” People v Carines, 460 Mich 750, 757; 597 NW2d

130 (1999) (quotation marks and citation omitted).

The prosecutor presented sufficient evidence to

prove that defendant delivered marijuana to Bradley.

Bradley testified that, during the controlled buy, he

handed defendant a candy bar and defendant handed

him a small packet of toilet paper. Security video

2011] P

EOPLE V

ILLIAMS

471

footage showed Bradley and defendant handing each

other items through the cell bars, but the images were

not clear enough to identify the items. Bradley walked

away from the jail dormitory and was out of Deputy

Mata’s sight and could not be seen by the security

cameras for a matter of seconds before he reached

Deputy Mata’s location. Bradley then showed the toilet-

paper packet to Mata. Deputies took that same toilet-

paper packet from Bradley and placed it into evidence.

The substance found wrapped inside the toilet paper

was forensically tested and proved to be marijuana. The

deputies conducted a strip search of Bradley both before

and after the exchange to ensure that he could not plant

evidence. Moreover, Sampson testified to witnessing the

transaction between defendant and Bradley right after

defendant feverishly dug through his belongings, pre-

sumptively to find something (such as marijuana).

Sampson further testified that defendant bragged to his

dorm mates that he could acquire marijuana for them.

This evidence more than sufficiently links defendant

to the marijuana given to Bradley on March 17, 2010.

Similarly, if defendant passed the marijuana to Bradley,

defendant must have possessed the marijuana before

the transaction. We unhesitatingly reject defendant’s

suggestion that a prosecutor may only establish deliv-

ery of a controlled substance if a police officer directly

views an illegal narcotics exchange and can identify the

item from afar as a controlled substance. Accordingly,

we affirm defendant’s convictions based on the evidence

presented at the jury trial.

IV. BIASED JURY/INEFFECTIVE ASSISTANCE OF COUNSEL

In his Standard 4 brief, defendant attacks trial coun-

sel’s failure to challenge two jurors who, he claims,

knew Deputy Mata. Defendant asserts that these jurors

472 294 M

ICH

461 [Oct

were then impaneled, resulting in a biased trial. We

need not reach the substance of this challenge, however,

as these jurors were, in fact, dismissed from duty and

were not selected to hear the trial. Juror 19 indicated

that he or she knew Mata, but had not seen him in

years. Juror 25 indicated that he or she knew another

Sheriff’s deputy who was scheduled to be called as a

witness during trial. Both of these jurors were excused

before trial. Accordingly, there is no error for defendant

to challenge in this regard.

V. SENTENCING

Through appellate counsel, defendant raises several

challenges to the sentences imposed for his prisoner-in-

possession and delivery convictions.

A. CONSECUTIVE SENTENCING

The trial court ordered that defendant’s sentences

for prisoner in possession and delivery run consecu-

tively to each other and to the domestic-violence sen-

tence defendant was serving when he committed the

current offenses. Defendant concedes that, pursuant to

MCL 768.7a(1), the court was required to make his

prisoner-in-possession and delivery sentences run con-

secutively to his previous domestic-violence sentence.

However, defendant challenges the court’s decision to

make the prisoner-in-possession and delivery sentences

consecutive to each other. We agree with defendant’s

point of error.

“In this jurisdiction, concurrent sentencing is the

norm. A consecutive sentence may be imposed only if

specifically authorized by statute.” People v Brown, 220

Mich App 680, 682; 560 NW2d 80 (1996) (citation

omitted). MCL 768.7a(1) provides for consecutive sen-

tencing as follows:

2011] P

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ILLIAMS

473

A person who is incarcerated in a penal or reformatory

institution in this state, or who escapes from such an

institution, and who commits a crime during that incar-

ceration or escape which is punishable by imprisonment in

a penal or reformatory institution in this state shall, upon

conviction of that crime, be sentenced as provided by law.

The term of imprisonment imposed for the crime shall

begin to run at the expiration of the term or terms of

imprisonment which the person is serving or has become

liable to serve in a penal or reformatory institution in this

state. [Emphasis added.]

The key to resolving this issue is the interpretation of

the phrase “or has become liable to serve” in MCL

768.7a(1).

Well-established principles guide this Court’s statutory

construction efforts. We begin by examining the specific

statutory language under consideration, bearing in mind

that [w]hen faced with questions of statutory interpreta-

tion, our obligation is to discern and give effect to the

Legislature’s intent as expressed in the words of the

statute. We give the words of a statute their plain and

ordinary meaning, looking outside the statute to ascertain

the Legislature’s intent only if the statutory language is

ambiguous. Where the language is unambiguous, we pre-

sume that the Legislature intended the meaning clearly

expressed—no further judicial construction is required or

permitted, and the statute must be enforced as written.

[Prins v Mich State Police, 291 Mich App 586, 589; 805

NW2d 619 (2011) (quotation marks and citations omitted;

formatting altered) (alteration in original).]

Moreover, in relation to consecutive-sentencing stat-

utes, this Court has held:

The consecutive sentencing statutes should be con-

strued liberally in order to achieve the deterrent effect

intended by the Legislature. The statute clearly provides

that the sentence shall commence “at the expiration of a

term or terms of imprisonment which the person is serving

or has become liable to serve....”Thedeterrent effect of

474 294 M

ICH

461 [Oct

the statute can only be achieved by imposing consecutive

sentences for the crimes committed by an escapee [or

incarcerated individual]. Otherwise, it is possible that a

defendant may never have to serve any time for the

subsequent crimes. [People v Piper, 181 Mich App 583,

585-586; 450 NW2d 72 (1989) (citations omitted).]

This Court has repeatedly interpreted the phrase “or

has become liable to serve” in MCL 768.7a(1) as allow-

ing a sentencing court to “stack” or cumulate a defen-

dant’s sentences for separate offenses committed while

incarcerated or on escapee status. By way of example,

assume a defendant was sentenced in 1981 for commit-

ting offense A, was sentenced in 1982 for committing

offense B while incarcerated, and then was sentenced in

1983 for committing offense C while incarcerated. Pur-

suant to MCL 768.7a(1), the sentencing court would be

required to make each sentence consecutive to the

others. The defendant would serve his or her sentence

for offense A before commencing the sentence for

offense B and would serve the sentence for offense B

before commencing the sentence for offense C. See, e.g.,

People v McKee, 167 Mich App 258; 421 NW2d 655

(1988) (holding that a sentence of imprisonment im-

posed for an escape conviction had to be served consecu-

tively to both the defendant’s original sentence for

unlawfully driving away an automobile and to the

defendant’s pending sentence for an assault he commit-

ted while incarcerated); People v Mandell, 166 Mich App

620; 420 NW2d 834 (1987) (holding that the trial court

properly sentenced the defendant to a term of impris-

onment for his escape conviction that was to run

consecutively to the sentence he was serving when he

escaped, and that the trial court properly ordered that

the defendant’s sentence for breaking and entering a

motor vehicle while an escapee was to run consecutively

to his sentence for the escape conviction).

2011] P

EOPLE V

ILLIAMS

475

However, there is no precedent for using MCL

768.7a(1) as a means of imposing consecutive sentences

for convictions arising out of contemporaneous offenses

that were tried together in one trial.

When interpreting

a statute, we must read the statutory language “in its

grammatical context, unless it is clear that something

else was intended.” Sun Valley Foods Co v Ward, 460

Mich 230, 237; 596 NW2d 119 (1999). The statute states

that the defendant’s new prison term begins to run at

the expiration of the term or terms of imprisonment

that the defendant is serving or “has become liable to

serve.” “Has become” is the present perfect tense of the

verb “become.” “The present perfect tense generally

indicates action that was started in the past and has

recently been completed or is continuing up to the

present time, or shows that a current action is logically

subsequent to a previous recent action.” Deschaine v St

Germain, 256 Mich App 665, 672; 671 NW2d 79 (2003)

(quotation marks and citations omitted). Accordingly, a

defendant “has become liable to serve” a sentence only

if that sentence was imposed (or the act underlying the

sentence occurred) in the past. When the new sentence

and its underlying offense are logically subsequent to

the sentence for which the defendant “has become

liable to serve” the court may order the new sentence to

run consecutively.

Stated differently, a defendant convicted of an of-

fense committed while he or she was incarcerated for a

prior offense will be given a sentence that runs consecu-

tively to the sentence he or she is currently serving for

that prior offense. If the defendant has committed any

Moreover, neither statute under which defendant was convicted

requires or allows the court to impose consecutive, rather than concur-

rent, sentences. Accordingly, we cannot hold that imposing consecutive

sentences for the prisoner in possession and delivery convictions would

be a sentence “as provided by law.” MCL 768.7a(1).

476 294 M

ICH

461 [Oct

offenses between his or her original sentencing offense

and the new sentencing offense, the defendant’s new

sentence will also run consecutively to the sentences for

those interceding offenses. However, if an incarcerated

defendant commits two offenses contemporaneously

and those offenses are tried and sentenced together, it is

illogical to claim that one of those contemporaneous

sentences “started in the past....”Id. The defendant

has become liable to serve the sentences at the same

time, one does not precede the other, and therefore the

consecutive-sentencing statute is inapplicable.

As such, we conclude that the trial court erred by

ordering defendant’s sentences for his prisoner-in-

possession and delivery convictions to run consecutively

to each other. The offenses occurred at the same time,

the charges were tried together, and the court imposed

the sentences at one proceeding. While the trial court

correctly concluded that the sentences for the current

offenses must run consecutively to defendant’s under-

lying domestic-violence sentence, the current sentences

must run concurrently with each other. Accordingly, we

vacate the judgment of sentence and remand to allow

the circuit court to amend the order so that the current

sentences run concurrently with each other.

B. AMOUNT OF JAIL CREDIT

At sentencing, the court acknowledged that defen-

dant’s underlying domestic-violence sentence was ter-

minated on June 15, 2010, shortly after the jury con-

victed defendant of prisoner in possession and delivery.

The court further acknowledged that defendant had

remained incarcerated pending sentencing on the cur-

rent charges following the termination of his previous

sentence. Accordingly, the court awarded defendant 27

days of jail credit, reflecting the period between the

2011] P

EOPLE V

ILLIAMS

477

termination of his original sentence and the sentencing

on the current charges.

Because the court ordered

defendant’s sentences for prisoner in possession and

delivery to run consecutively to each other, the court

applied the jail credit only to the prisoner-in-possession

sentence, i.e., the first sentence to be served. Defendant

contends that the trial court was required to apply the

jail credit to both sentences because the sentences

should run concurrently. We agree.

Michigan’s jail-credit statute, MCL 769.11b, pro-

vides:

Whenever any person is hereafter convicted of any

crime within this state and has served any time in jail prior

to sentencing because of being denied or unable to furnish

bond for the offense of which he is convicted, the trial court

in imposing sentence shall specifically grant credit against

the sentence for such time served in jail prior to sentenc-

ing. [Emphasis added.]

After defendant’s original sentence was terminated

on June 15, 2010, defendant remained in jail only

“because of being denied or unable to furnish bond for

the offense of which he is convicted....”MCL769.11b.

Defendant remained in jail only because he was await-

ing sentencing on the current charges. Accordingly, the

jail-credit statute applies to this action. And, as we have

determined that the court should have ordered defen-

dant’s prisoner-in-possession and delivery sentences to

run concurrently with each other, the jail credit should

have been applied to both sentences. We therefore

This was proper under our Supreme Court’s recent opinion in People

v Idziak, 484 Mich 549, 567 n 17; 773 NW2d 616 (2009) (noting that a

parolee who is returned to prison after a parole violation continues

serving out his or her original sentence and is not entitled to jail credit

pending trial on the parole violation; however, if the term of parole

expires while the parolee is incarcerated awaiting trial on the violation,

then he or she is entitled to jail credit after the parole expiration date).

478 294 M

ICH

461 [Oct

vacate the award of jail credit in the judgment of

sentence and remand to allow the circuit court to apply

27 days of jail credit to both the prisoner-in-possession

and delivery sentences.

C. PRIOR RECORD VARIABLE 7

Finally, defendant challenges the scoring of prior

record variable (PRV) 7. Specifically, defendant con-

tends that, because the court ordered his prisoner-in-

possession and delivery sentences to run consecutively,

the underlying convictions cannot be considered “con-

current” for purposes of the sentencing guidelines. And,

thus, the court erred by assessing 10 points for PRV 7.

The scoring of PRV 7 is governed by MCL 777.57:

(1) Prior record variable 7 is subsequent or concurrent

felony convictions. Score prior record variable 7 by deter-

mining which of the following apply and by assigning the

number of points attributable to the one that has the

highest number of points:

(a) The offender has 2 or more subsequent or concurrent

convictions ............................................................. 20 points

(b) The offender has 1 subsequent or concurrent convic-

tion ......................................................................... 10 points

victions .................................................................... 0 points

(2) All of the following apply to scoring record variable 7:

(a) Score the appropriate point value if the offender was

convicted of multiple felony counts or was convicted of a

felony after the sentencing offense was committed.

(b) Do not score a felony firearm conviction in this

variable.

mandatory consecutive sentence or a consecutive sentence

2011] P

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ILLIAMS

479

imposed under section 7401(3) of the public health code,

1978 PA 368, MCL 333.7401, will result from that convic-

tion. [Emphasis added.]

Nothing in the statute suggests that the consecutive

nature of a defendant’s sentences affects whether the

convictions were entered concurrently. However, we

need not resolve that issue in this appeal. Because we

conclude that the trial court erred and should have

ordered defendant’s prisoner-in-possession and delivery

sentences to run concurrently, the court properly scored

PRV 7 at 10 points under defendant’s own analysis.

Affirmed in part, vacated in part, and remanded for

correction of defendant’s judgment of sentence. We do

not retain jurisdiction.

LEICHER

,P.J., and H

OEKSTRA

and S

TEPHENS

, JJ., con-

curred.

480 294 M

ICH

461 [Oct

PEOPLE v CORTEZ

Docket No. 298262. Submitted September 13, 2011, at Grand Rapids.

Decided October 27, 2011, at 9:00 a.m. Vacated in part and

remanded, 491 Mich 925.

Burton D. Cortez was convicted by a jury in the Montcalm Circuit

Court, David A. Hoort, J., on two counts of being a prisoner in

possession of a weapon and was sentenced as a second-offense

habitual offender. Defendant appealed, alleging that the court

erred by ruling that the Department of Corrections officer who

questioned defendant following the discovery of two weapons in

his cell was not required to provide him the warnings mandated by

Miranda v Arizona, 384 US 436 (1966), before subjecting him to

questioning and by admitting in evidence a recording of the

incriminating statements defendant made during the questioning.

The Court of Appeals held:

1. The circumstances of the questioning in this case did not

require Miranda warnings. The Miranda requirements were not

intended to impede the on-the-scene questioning traditionally

conducted by police officers when investigating a crime. Similarly,

when Miranda is applied to a prison setting, it is also not intended

to hamper the efforts of prison officials when investigating an

offense committed in prison.

2. The primary rationale behind the Miranda-warnings re-

quirement is to protect against the possibility of governmental

agents compelling someone to make incriminating statements

while in custody. Miranda warnings must be given when a person

is subjected to custodial interrogation. Custodial interrogation is

questioning initiated by law enforcement officers after a person

has been taken into custody or otherwise deprived of his or her

freedom of action in any significant way. Being restricted or

deprived of freedom, in the context of prison, is relative to

additional limitations being placed on a prisoner beyond simply

being in prison.

3. Under the circumstances of this case, where defendant was

questioned by a corrections officer regarding an offense within the

prison and for the purpose of maintaining prison safety, defendant

was presented with very limited evidence of his guilt, and he was

restricted and isolated pursuant to departmental procedure when

2011] P

EOPLE V

ORTEZ

481

dangerous weapons are found in an inmate’s area of control, the

questioning was more like general on-the-scene questioning and

questioning essential to the administration of the prison than the

type of custodial interrogation requiring Miranda warnings.

Miranda warnings were not necessary under the circumstances.

The trial court did not err by holding that there was no violation

of defendant’s Fifth Amendment rights.

4. The recording containing defendant’s admissions that he

made the weapons and hid them in his cell was highly relevant to

establishing defendant’s guilt. The statements in the recording

regarding defendant’s possible gang affiliation were relevant to

explaining why defendant’s cell was searched and possible reasons

for him to be in possession of a weapon. The trial court gave a

limiting instruction before playing only part of the recording to the

jury. The probative value of the recording was not substantially

outweighed by the danger of unfair prejudice. The trial court did

not err by admitting the shortened version of the recording.

Affirmed.

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Andrea Krause, Prosecuting Attor-

ney, and Joel D. McGormley, Assistant Attorney Gen-

eral, for the people.

State Appellate Defender (by Peter Jon Van Hoek) for

defendant.

Before: O’C

ONNELL

,P.J., and M

ETER

and B

ECKERING

JJ.

URIAM

. Defendant, Burton David Cortez, ap-

peals as of right his convictions on two counts of being

a prisoner in possession of a weapon, MCL 800.283(4),

entered after a jury trial. The trial court sentenced

defendant as a second-offense habitual offender, MCL

769.10, to concurrent terms of 24 to 90 months in

prison.

At the time of the incident in question defendant was

an inmate at the Carson City Correctional Facility. On

482 294 M

ICH

481 [Oct

July 21, 2009, Michigan Department of Corrections

(MDOC) officers discovered two weapons in defendant’s

cell during a search of a number of inmates’ cells.

Before trial, defendant moved to suppress a recorded

statement taken during an interview with him after the

weapons were discovered and in which he admitted

possessing the weapons. At issue on appeal is whether

the trial court erred by ruling that the MDOC officer

who questioned defendant during the interview was not

required to provide him with Miranda

warnings before

subjecting him to the questioning and by admitting

defendant’s incriminating statements at trial. We af-

firm.

On July 21, 2009, a “siren drill” was carried out at

the prison. Leading up to the drill there had been

several assaults and fights involving suspected gang

members; weapons were used and there were shots

fired by corrections officers from the gun tower. On the

morning of the drill, two homemade weapons had been

found on an inmate who was a suspected gang member.

Prison officials decided to conduct the siren drill to

search for more weapons and identify inmates involved

in the suspected gang activity.

Pursuant to protocol for the siren drill, all inmates

were required to return to their cells for a lockdown,

and the corrections officers then searched various cells

for contraband. During the drill, an MDOC officer,

Lieutenant Robert Vashaw,

provided other corrections

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

Lieutenant Vashaw testified at the suppression hearing in this matter

and stated that at the time of this incident he was “an acting Inspector”

for the facility.

2011] P

EOPLE V

ORTEZ

483

officers with a list of suspected gang members whose

cells were to be searched. Defendant’s name was on the

list.

MDOC Officer Robert Hanes explained that before a

cell is searched, the corrections officers have the in-

mates step out one at a time, undergo a pat-down

search, and then proceed to a day room while their cell

is searched. According to defendant, about 30 minutes

after the drill started, he was asked to leave his cell and

was patted down.

He was then sent to a day room or

activity room.

Officer Hanes searched the area of defendant’s cell

that was considered to be in defendant’s area of control.

The cell was basically divided so that defendant, who

slept on the bottom bunk, had the left side of the cell

and the inmate who slept on the top bunk had the right

side of the cell as their areas of control. Officer Hanes

found pieces of metal in a trash can on the left side of

defendant’s cell. He also noticed that a metal shelf was

missing from defendant’s desk. At that point, Lieuten-

ant Vashaw directed that a thorough search of the cell

be conducted. The search revealed a homemade shank,

specifically a piece of sharpened metal that was inserted

into a white plastic handle. The shank was stuck in the

bottom bunk’s framework on the under-side of the bed

frame. Officer Hanes turned the shank over to Lieuten-

ant Vashaw and then continued to search the cell. A

second shank was found inside a corner of the mattress

on the bottom bunk. The second shank was made of a

piece of metal wrapped in a bluish cloth and was also

turned over to Lieutenant Vashaw.

Lieutenant Vashaw testified that he took control of

the shanks, “bagged and tagged” them, and placed

Defendant did not testify at the suppression hearing, but he did

testify at trial.

484 294 M

ICH

481 [Oct

them in the Michigan State Police evidence locker. Once

the shanks were in the locker, Lieutenant Vashaw no

longer had control over them; only the state police had

access to them. Lieutenant Vashaw testified that the

two shanks were in the evidence locker when he later

interviewed defendant but that the trash can contain-

ing the metal pieces may have been in the interview

room during the interview. Defendant, on the other

hand, testified that the shanks, which had been placed

inside tubes, and the trash can, were all in the interview

room.

Officer Vashaw testified that if an inmate is found

with dangerous contraband, departmental policy calls

for the inmate to be placed in segregation until his

misconduct report is heard. On the basis of the items

found in defendant’s area of control, Officer Hanes

prepared a misconduct report, and Lieutenant Vashaw

ordered staff to escort defendant to a segregation cell or

solitary confinement.

While in the segregation unit, an

inmate must be handcuffed and escorted by a staff

member whenever he leaves segregation.

Approximately an hour to an hour and a half after

Officer Hanes found the second shank, Lieutenant

Vashaw requested to speak with defendant. Because

defendant was already in segregation, he was escorted

in handcuffs to the control center to meet Lieutenant

Vashaw.

According to the lieutenant, he had defendant

come to the control center to be interviewed because

inmates are often reluctant to speak openly in front of

According to defendant, before being placed in segregation, he was

ordered to quickly shower with his prison clothes on and was then

strip-searched and given a brown jumpsuit to put on.

Defendant testified that he had been in segregation for approximately

15 or 20 minutes when he was handcuffed and escorted to the control

center.

2011] P

EOPLE V

ORTEZ

485

others. Lieutenant Vashaw and defendant then went to

a back office for the interview.

According to Lieutenant Vashaw, defendant hesitated

to speak at the outset of the interview and initially

“denied everything.” The lieutenant then told defen-

dant that the evidence the corrections officers had

obtained was “pretty damaging” and that two weapons

had been found in defendant’s area of control. Lieuten-

ant Vashaw said that defendant needed to tell him what

was going on inside the prison because violent events

had recently occurred; defendant needed to tell him

why he was making weapons or was in possession of

weapons. The lieutenant testified that he never threat-

ened defendant.

Lieutenant Vashaw further testified that defendant

soon started to talk, and the lieutenant brought out a

tape recorder. Defendant knew the recorder was run-

ning, and he did not hesitate to discuss the matter. On

the recording, which was played, in part, for the jury,

defendant said that the weapons were his and that gang

members had forced him to make them. One weapon

was for his own protection, and the other was to be sold.

He also admitted selling a third weapon the previous

day. Defendant also talked about gangs that operated

within the prison. The interview lasted approximately

15 minutes, and defendant never sought to end the

interview. After the interview, a staff member escorted

defendant back to segregation pursuant to departmen-

tal policy.

According to defendant, Lieutenant Vashaw showed

him the trash can and both shanks in the interview

room. Defendant told the lieutenant that the items

were not his, but then the lieutenant told him they

The office belonged to the facility’s “Inspector” and was being used at

that time by Lieutenant Vashaw as “an acting Inspector.”

486 294 M

ICH

481 [Oct

could make a deal. Lieutenant Vashaw proposed that

defendant either admit possessing the weapons, do his

segregation time after his misconduct ticket was heard,

and go home as scheduled in approximately 11 months,

or the lieutenant could keep defendant from ever going

home. Defendant testified that everything he admitted

on the recording was untrue; he just said what he

needed to say in order to get out of prison and go home.

Before trial, defendant moved to suppress his confes-

sion on the grounds that he was not given Miranda

warnings and it was highly prejudicial because the

recording of his confession mentioned the length of

time he had been in prison and detailed gang-related

activity. Defendant renewed his objection to the admis-

sion of the recording during trial.

At the suppression hearing, during direct examina-

tion, Lieutenant Vashaw testified about his reasons for

placing defendant in segregation and interviewing him:

Q. So—you end up in possession of that first weapon

found?

A. Well, he, Officer Hanes...gave it to me and I took

possession of it then, yes.

Q. Okay. And then were you called back to the cell, or

somehow you found another—came into possession of

another weapon from the defendant’s cell?

A. Well, I wanted to get control of the prisoner, so I

instructed Officer Hanes to do—I want you guys to finish

going through this cell because there could be possibly

more weapons in here, and then I left with the weapon and

the metal contraband. I called in some additional staff to

take Mr. Cortez to segregation.

Q. Okay. So, you moved him from the day room to...

A. Segregation.

Q. What’s segregation? What’s that, what...

2011] P

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A. Solitary confinement. They’re placed in there for

detention and various protection and they’re also placed in

there pending, what we call, investigation or due process.

Pending...investigation until we finish looking in to this

incident or pending due process until we write misconduct

and then they have a certain amount of days to be heard on

that misconduct.

Q. And that’s all stuff that’s done internally within the

prison?

A. Correct.

***

Q. Okay. And—and the reason, what is the reason he

was put into segregation, at that point?

A. Because prisoner[s], when they’re found with dan-

gerous contraband which was the broken pieces of metal or

a weapon, that’s called a non bondable offense and for that

reason, we’re required to place them in segregation.

Q. This is all Department of Corrections policy?

A. Correct.

Q. Nothing that the police have directed you have to?

A. No.

***

A. Well, after he’s placed in seg[regation]...Officer

Hanes...subsequently found the second weapon in his

mattress.

***

A. . . . Given the nature of what had been goin [sic] on

for the past week, I wanted to talk to him [defendant]

about the activity.

Q. For what reason?

A. To try to get a handle, make sure we—cuz [sic] it’s

not every day that you find two weapons on a guy and then

488 294 M

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481 [Oct

the same two weapons we found in his cell were similar to the

first two we found in the start of the day. So, it’s leadin [sic]

me to believe we’ve got a gang problem going on, plus with

the stuff that happened earlier in the week, I was trying to

interview him find out what exactly was going on with those

gang members or specifically in that level four unit.

Q. And—and you wanted information on the gang

members because of what reason?

A. For prison safety. For future, I mean, if we got a war

going on that’s something we need to take control of.

***

Q. Okay. Were you requested by any police agency to

question him regarding the knives, the weapons that were

found in his cell?

A. No, I was not.

Q. Did you even have any contact with any outside police

agency like the State Police, prior to questioning him in any

regard?

A. No, I did not.

In regard to the content of his interview of defendant,

Lieutenant Vashaw testified:

Q. So, how does the conversation start? I mean what—

what do you say to him?

A. Basically, what’s going on out there? I mean, we

found these weapons in your cell,...I want to know

what—can you tell me what’s going on. I mean, this doesn’t

look good, you know. And that’s how it starts out.

Q. But again, you wanted to know what’s going on

because of what reason?

A. Prison safety, with—we’re having these gang problems

and I want to know are we expecting more trouble, are

we—you know, is there more weapons floating around out

there, you know, concerned about the prisoner and staff

safety.

***

2011] P

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Q. Did he tell you about the gang activity and his take on

who’s who—who’s members of a gang and...

A. Yes.

***

Q. Was that helpful to you, in terms of again, maintain-

ing peace and order in the prison?

A. Yes, specifically, because one name he did mention

was a prisoner named Cain (phonetic) and we had received

previous information that some of the Gangster Disciples

had actually put a hit out on one of our officers. And we

believed it to be credible enough, we kept the officer out of

the institution, out of the inside and that prisoner Cain

(phonetic), he was telling me about was one of the sus-

pected GD’s that was going to stab this officer.

Q. GD is—is what?

A. Gangster Disciple.

Q. That’s the name of a gang?

A. Yes.

Later during the suppression hearing, the court

asked Lieutenant Vashaw whether the MDOC had any

arrangement with the state police in regard to conduct-

ing interviews of inmates suspected of criminal activity:

Q. Does the department have any type of arrangement

or policy with the State Police, that you folks will do the

interview? So they don’t have to come out?

A. No, they’ve never—they’ve never said that. Typically

we give them whatever information we have and then we

lay [sic] it to them if they would like to come out and talk

tothe...

Q. So, there’s no DOC policy that the Inspector or

someone else would do, or interview, possible defendants

for the State Police?

A. Uh, uh. Not unless—I mean there’s no policy on it,

no, that I’ve ever seen.

490 294 M

ICH

481 [Oct

Q. Okay. Was there an arrangement or an unofficial

policy or anything like that?

A. . . . [N]o sir...

Defense counsel continued with a similar line of ques-

tioning on recross-examination:

Q. Is it your practice to provide those interviews to the

State Police?

A. If we’re going to seek prosecution, yes.

Q. Okay. So, whenever you might seek criminal prosecu-

tion, you provide, not only the physical evidence that

you’ve put in their police locker, but you also provide a

report?

A. If they want it.

Q. Okay.

A. I’ve—well I, typically I fill out—we give em [sic] a

synopsis of what we’ve had. We tell em [sic] either...ver-

bally or, you know, in writing, what—what’s transpired and

we would like to seek prosecution on this inmate, you know,

and I’m just talking in general, you know, for different

instances. And they may come and talk to the inmate

themselves or they may not. They may take the report we

have, and use—just use that.

***

A. They will usually come to the facility there after, and

say what do [you] have? And then if we have a report or

what—whatever evidence or information we have, we then

give [it] to them.

The court then resumed its questioning of the lieuten-

ant:

Q. The distinction I was trying to—to make, it seems

like you guys do have an arrangement or a policy that if

there’s evidence, you put it into the State Police, what do

you call it?

2011] P

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491

A. Evidence locker.

***

Q. Yes?

A. Yes.

Q. Okay. But you don’t have any type of arrangements

or policy that you will do the interview for the State Police?

A. Right. No, we don’t.

The trial court denied defendant’s motion to sup-

press and objections to the recording. The court deter-

mined that defendant was in custody and was being

interrogated but that Lieutenant Vashaw’s testimony

was credible and that he was not “acting as a tool of the

State Police.” In so holding, the court cited People v

Anderson, 209 Mich App 527; 531 NW2d 780 (1995),

wherein this Court explained that “constitutional pro-

tections apply only to governmental action” and, there-

fore, that “a person who is not a police officer and is not

acting in concert with or at the request of the police is

not required to give Miranda warnings before eliciting

a statement.” Id. at 533, citing Grand Rapids v Impens,

414 Mich 667, 673; 327 NW2d 278 (1982). Additionally,

the trial court in this case noted that “there were many

good, legitimate reasons why the Department of Cor-

rections followed up with an interview of the defendant,

relating to the safety and security of the prison, not only

corrections officers but also inmates. Also, in [an] effort

to find out, not only what is going on, but whether there

was a gang problem, and specifically what’s going on in

that unit.”

Further, while the trial court denied defendant’s

motion to suppress and objections to the recording, it

attempted to minimize the prejudicial effect of the

recording by allowing only a shortened version of it to

492 294 M

ICH

481 [Oct

be played for the jury. The shortened version eliminated

any reference to defendant’s length of incarceration.

The court also gave a limiting instruction to the jury.

The jury returned a verdict of guilty on both counts

of being a prisoner in possession of a weapon. Defen-

dant was sentenced as described. He now appeals as of

right.

Defendant argues that the trial court committed

error that requires reversal by ruling that Lieutenant

Vashaw, the corrections officer who questioned him,

was not required to provide him with Miranda warn-

ings before subjecting him to custodial interrogation,

contrary to his Fifth Amendment rights, and therefore

erroneously admitted his incriminating statements at

trial. We disagree. Although the facts of this case fall in

the middle area of a spectrum of cases in which the

factual situations of some require Miranda warnings

and others do not, the circumstances of the questioning

in this case did not require Miranda warnings.

When reviewing a motion to suppress evidence of a

confession, we defer to the trial court’s findings of fact

unless they are clearly erroneous. People v Herndon,

246 Mich App 371, 395; 633 NW2d 376 (2001). We

review legal conclusions de novo. Id.

The protections of the Fifth Amendment, US Const,

Am V, and Const 1963, art 1, § 17 have “ ‘been extended

beyond criminal trial proceedings “to protect persons in

all settings in which their freedom of action is curtailed

in any significant way from being compelled to incrimi-

nate themselves.” ’ ” People v Honeyman, 215 Mich App

687, 694; 546 NW2d 719 (1996), quoting People v

Schollaert, 194 Mich App 158, 164; 486 NW2d 312

(1992), quoting Miranda, 384 US at 467. An exception

2011] P

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493

to the requirement that Miranda warnings be given is

general on-the-scene questioning of citizens during the

fact-finding process. Miranda, 384 US at 477-478.

Miranda was not intended to impede the on-the-scene

questioning traditionally conducted by police officers

when investigating a crime. Id. Similarly, when Miranda

is applied to prison settings, it is also not intended to

hamper the efforts of prison officials when investigating

an offense committed in the prison. See Fields v Howes,

617 F3d 813, 819 (CA 6, 2010), cert gtd Howes v Fields,

562 US ___; 131 S Ct 1047; 178 L Ed 2d 862 (2011). To

conclude “that any investigatory questioning inside a

prison requires Miranda warnings...could totally dis-

rupt prison administration” and “torture [Miranda]to

the illogical position of providing greater protection to a

prisoner than to his nonimprisoned counterpart.” Cer-

vantes v Walker, 589 F2d 424, 427 (CA 9, 1978), discuss-

ing Mathis v United States, 391 US 1; 88 S Ct 1503; 20

L Ed 2d 381 (1968).

The primary rationale behind the Miranda-warnings

requirement is to protect against the possibility of

governmental agents compelling someone to make in-

criminating statements while in custody. Honeyman,

215 Mich App at 694. Miranda warnings must be given

when a person is subjected to a custodial interrogation.

Anderson, 209 Mich App at 532. Custodial interrogation

is “ ‘questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant

way.’ ” People v Hill, 429 Mich 382, 387; 415 NW2d 193

(1987), quoting Miranda, 384 US at 444. Being re-

stricted or deprived of freedom, in the prison context, is

relative to additional limitations being placed on a

prisoner beyond simply being in prison. Cervantes, 589

F2d at 428. In Cervantes, the United States Court of

494 294 M

ICH

481 [Oct

Appeals for the Ninth Circuit evaluated the concept of

restricting one’s freedom in a prison environment:

The concept of “restriction” is significant in the prison

setting, for it implies the need for a showing that the

officers have in some way acted upon the defendant so as to

have “deprived [him] of his freedom of action in any

significant way,” [Miranda, 384 US at 444]. In the prison

situation, this necessarily implies a change in the sur-

roundings of the prisoner which results in an added impo-

sition on his freedom of movement. Thus, restriction is a

relative concept, one not determined exclusively by lack of

freedom to leave. Rather, we look to some act which places

further limitations on the prisoner.

In defining this concept we adhere to the objective,

reasonable person standard and the same four factors we

have employed under the “free to leave” test. See United

States v. Curtis, [568 F2d 643, 646 (CA 9, 1978)]. Therefore,

the language used to summon the individual, the physical

surroundings of the interrogation, the extent to which he is

confronted with evidence of his guilt, and the additional

pressure exerted to detain him must be considered to

determine whether a reasonable person would believe

there had been a restriction of his freedom over and above

that in his normal prisoner setting. Such a situation

requires Miranda warnings. [Id.]

The Cervantes court held that a sheriff’s deputy’s

questioning of the defendant inmate in that case was

not an instance of custodial interrogation requiring

Miranda warnings. Id. at 426, 429. The defendant had

recently been involved in a fight with another inmate.

Id. In response to the fight, a sheriff’s deputy moved the

defendant from one cell to another. Id. While the

defendant was being questioned in the jail library by

the shift commander, the deputy searched the defen-

dant’s belongings outside the library door, in accor-

dance with “standard jail procedure when moving in-

mates.” Id. at 427. The deputy found a matchbox

2011] P

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495

containing a green odorless substance, which he sus-

pected was marijuana, among the defendant’s belong-

ings. Id. at 427. He was not certain of what the

substance was, however, because he had no specific

training in identifying marijuana. Id.

[The deputy] took the matchbox and contents into the

library in order to have [the defendant] identify the sub-

stance. The library dimensions were about six feet by four

feet. In the presence of [the shift commander], and at a

distance of about one and one-half feet to two feet from [the

defendant], [the deputy] opened the matchbox, showed the

contents to [the defendant] and asked, “What’s this?” [The

defendant] replied, “That’s grass, man.” [The deputy] then

placed [the defendant] under arrest. The matchbox con-

tained a usable quantity of marijuana. [Id.]

The Cervantes court reasoned that under the circum-

stances, the deputy’s questioning was an instance of

on-the-scene questioning to determine whether a crime

was in progress, rather than an instance of custodial

interrogation. Id. at 429. The court noted that the

marijuana was discovered during a routine search and

that the deputy’s questioning sought to ascertain the

nature of the substance, took place in the prison library,

and was apparently a spontaneous reaction to the

discovery. Id.

More recently, in Wilson v Cain, 641 F3d 96 (CA 5,

2011), the United States Court of Appeals for the Fifth

Circuit evaluated the physical circumstances of a pris-

oner during questioning. The defendant inmate was

involved in an altercation with another inmate, where-

after he and the other inmate were handcuffed and

taken to separate rooms for “ ‘post-fight interview[s].’ ”

Id. at 98. During his interview, the defendant indicated

that he had “ ‘stomped on’ ” a third inmate, which he

demonstrated by jumping up and down three times,

with both feet coming off the floor. Id. The corrections

496 294 M

ICH

481 [Oct

officer conducting the interview testified that up to that

point he had been unaware that a third inmate was

involved in the altercation. Id. The third inmate was

then discovered lying on a floor, injured to the extent

that he was rendered totally disabled. Id. The defen-

dant was charged with attempted second-degree mur-

der. Id. Before trial, the defendant moved to suppress

his statements during the interview because he had not

been given Miranda warnings. Id. The trial court

denied the motion, and the defendant was convicted of

attempted manslaughter. Id. at 98-99. The Fifth Circuit

evaluated whether Miranda warnings were required

preceding the defendant’s postfight interview, given the

defendant’s physical circumstances:

[The defendant] was handcuffed, isolated from the rest

of the prison population and questioned in an office, from

which he was not free to go at any point during the

interview. These physical circumstances, while as a general

matter supportive of [the defendant’s] right to Miranda

warnings, nonetheless do not present a situation where it

was unreasonable for the state court to have found that

Miranda warnings were not necessary. Such a finding is

not contrary to Supreme Court precedent, because Mathis

did not describe the physical circumstances of the interro-

gation. Further, [the defendant’s] physical circumstances

were only slightly more indicative of custody than the

circumstances in the circuit court cases of [United States v

Conley, 779 F2d 970 (CA 4, 1985)] and Cervantes, where

Miranda warnings were not required. See Conley, 779 F.2d

at 971 (inmate questioned while handcuffed in small con-

ference room in prison “control center,” where he was

awaiting transfer to the infirmary for medical treatment

needed following the altercation); Cervantes, 589 F.2d at

426-27 (inmate questioned in small prison library, where

the inmate was awaiting a move to another cell). Further-

more, [the defendant] was isolated from the prison popu-

lation as a part of the prison’s usual immediate “post-fight”

procedure, designed to protect the safety of the prison by

2011] P

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ensuring non-contact with the other inmates and securing

the area. And...avictim of [the defendant’s] assault, and

[the defendant] were both handcuffed and subjected to the

same sort of routine immediate post-fight questioning in

separate rooms. [Id. at 103-104.]

But see Fields, 617 F3d at 822-823 (holding that the

“critical issue” in determining whether a defendant

inmate has been subjected to custodial interrogation is

“whether the prisoner is isolated from the general

prison population for questioning” as “isolation is per-

haps the most coercive aspect of custodial interroga-

tion,” and thus, that a “bright line approach” without

“fact-specific inquiries” should be applied).

The Wilson court further found that a particularly

important factor in determining whether a prisoner is

entitled to Miranda warnings is whether the question-

ing was conducted by a prison guard or an outside state

official:

One fact having particular importance is that [the

defendant’s] questioning was conducted by a guard em-

ployed at the prison in which he was incarcerated, rather

than by an outside state official. This fact distinguishes this

case from the relevant Supreme Court cases in which the

interrogations found to require Miranda warnings were

undertaken by outside state officials. See Mathis, [391 US

at3n2](IRS agent questioned inmate); [Maryland v

Shatzer, 559 US___, ___; 130 S Ct 1213, 1215–1216, 1224;

175 L Ed 2d 1045, 1049, 1057-1058 (2010)] (police detective

not affiliated with prison questioned inmate). In contrast,

in all of the analogous circuit court cases in which Miranda

warnings were found unnecessary, the questioning of the

prisoner had been undertaken by a member of the prison

staff. See Conley, 779 F.2d at 971-73 (questioning by prison

guard); Cervantes, 589 F.2d at 428 (questioning by the

deputy sheriff, who worked at the county jail where defen-

dant was being held); [United States v Scalf, 725 F2d 1272,

1275 (CA 10, 1984)] (questioning by correctional officer

498 294 M

ICH

481 [Oct

employed at prison). In Conley, the Fourth Circuit explic-

itly contrasted statements made by the defendant to a

prison guard, on the one hand, and statements made to an

FBI investigator, on the other hand; the court noted with

approval the exclusion from evidence of statements made

to the FBI investigator because he was “in a different

category... He’s an outside agent who has come in.”

Conley, 779 F.2d at 974 n. 5. The Ninth Circuit in Cervantes

also stressed this factor, distinguishing Mathis by stating

that “[t]he questioning of Mathis by a government agent,

not himself a member of the prison staff, on a matter not

under investigation within the prison itself may be said to

have constituted an additional imposition on his limited

freedom of movement, thus requiring Miranda warnings.”

Cervantes, 589 F.2d at 428. Finally, in Fields v. Howes,

which is now pending before the Supreme Court, the Sixth

Circuit distinguished its facts from those of the other

circuit court cases just discussed because the questioning

was by “state agents unaffiliated with the prison” rather

than on-the-scene questioning by prison officials. Fields,

617 F.3d at 821 (and also because the questioning con-

cerned “criminal conduct that took place outside the jail or

prison,” id. at 820). [Wilson, 641 F3d at 103.]

See also Anderson, 209 Mich App at 533, and the cases

cited therein.

The Wilson court finally stated that the overall

circumstances of the questioning, specifically whether

the corrections officers were aware that the defendant

may have committed a crime or were merely investigat-

ing what they believed to be a routine matter at the

prison, pursuant to standard prison procedure, was

relevant in determining whether the questioning was

investigatory or accusatory. Wilson, 641 F3d at 104,

citing “Cervantes, 589 F.2d at 428 (listing ‘extent to

which he is confronted with evidence of his guilt’ as a

factor in determining whether an inmate was ‘in cus-

tody.’).” Considering all the circumstances, the court

held that “because the questioning was conducted by

2011] P

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members of the prison staff, using the prison’s routine

immediate ‘post-fight’ procedure to ensure the safety of

the general prison population,” the trial court did not

err by concluding that “this was more like general

on-the-scene questioning...rather than a custodial

interrogation” requiring Miranda warnings. Wilson,

641 F3d at 104.

In this case, leading up to defendant’s interview,

several assaults and fights involving suspected gang

members broke out in the prison. On the morning of

July 21, the day of the interview, two homemade weap-

ons had been found on a suspected gang member.

Lieutenant Vashaw conferred with prison officials, and

they decided to conduct a siren drill, wherein all in-

mates were required to return to their cells for a

lockdown, and the corrections officers searched cells to

find contraband and identify inmates involved in the

suspected gang activity. After two homemade weapons

were found hidden in defendant’s cell, in his area of

control, defendant was transferred to a segregation cell,

and Officer Hanes filed a misconduct report. Lieuten-

ant Vashaw testified that departmental procedure re-

quires him to place inmates in segregation “when

they’re found with dangerous contraband[;] that’s

called a non bondable offense,” and “pending, what we

call, investigation or due process. Pending...investi-

gation until we finish looking in to this incident or

pending due process until we write [a] misconduct

[report] and then [the inmates] have a certain amount

of days to be heard on that misconduct [report],” which

is“all...done internally within the prison.”

Lieutenant Vashaw interviewed defendant within an

hour and a half of the weapons’ being found in his cell.

Corrections officers escorted defendant, who was hand-

cuffed, to and from the interview, again pursuant to

500 294 M

ICH

481 [Oct

departmental procedure. Lieutenant Vashaw met de-

fendant in the control center and then interviewed him

in a back office belonging to the prison’s Inspector,

away from other inmates. In the beginning of the

15-minute interview, the lieutenant told defendant that

the evidence the corrections officers had obtained was

“pretty damaging” and that two weapons had been

found in defendant’s area of control. He said that

defendant needed to tell him what was going on inside

the prison because violent events had recently occurred;

defendant needed to tell him why he was making

weapons or was in possession of weapons. Once defen-

dant began responding to Lieutenant Vashaw’s ques-

tions, the lieutenant started a recorder, which defen-

dant knew was running. During the recorded portion of

the interview, defendant admitted possessing the weap-

ons and described gang activity occurring in the prison.

In regard to the physical circumstances of the ques-

tioning, like the defendant in Wilson, defendant’s free-

dom was restricted in that he was handcuffed and

isolated in a back office away from the rest of the prison

population. See Wilson, 641 F3d at 103-104. We note

that in Wilson, the defendant engaged in an altercation

with another inmate before being questioned and was

isolated to ensure noncontact with the other inmates

and secure the area. Id. at 98, 103-104. Here, defendant

did not engage in any violent activity leading up to his

interview. But both defendants were restrained and

isolated pursuant to departmental procedure. See id.

Dangerous weapons were recovered from defendant’s

cell, for which a misconduct report was filed. Depart-

mental procedure required that he be placed in segre-

gation and handcuffed whenever outside of segregation.

Further, like the corrections officers in Wilson, see id.,

Lieutenant Vashaw interviewed defendant for safety

purposes. During his testimony, which the trial court

2011] P

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501

found credible, the lieutenant explained that, given the

recent violent activity in the prison involving suspected

gang members and the fact that the weapons found in

defendant’s area of control closely resembled the weap-

ons found on another suspected gang member earlier

that morning, he “wanted to talk to [defendant] about

the activity” and try to “find out what exactly was going

on with those gang members or specifically in that level

four unit.” The lieutenant testified that he wanted to

know what “was going on” for “[p]rison safety, with—

we’re having these gang problems and I want to know

are we expecting more trouble[?] [A]re we—you know,

is there more weapons floating around out

there[?]...[I was] concerned about the prisoner and

staff safety.” During the interview, Lieutenant Vashaw

attempted to elicit information from defendant that

would be helpful in maintaining prison safety, and

defendant provided such information, particularly the

name of a gang member suspected of “putting a hit out”

on one of the corrections officers.

Further, according to Lieutenant Vashaw, he did not

confront defendant with evidence of his guilt other than

some general, opening statements regarding “pretty

damaging” evidence—two weapons—being found in de-

fendant’s area of control. See Cervantes, 589 F2d at 428.

The lieutenant did not describe the weapons or the

particular places where they were found. He testified

that the weapons were not in the interview room and

that the trash can containing the broken metal pieces

may have been in the room but that he did not recall

showing it to defendant. In Cervantes, while the deputy

questioned the defendant as, apparently, a spontaneous

response to the discovery of the matchbox filled with

marijuana among the defendant’s belongings, the

deputy believed that the substance he had discovered

was marijuana, and, when he asked the defendant to

502 294 M

ICH

481 [Oct

identify it, he showed both the matchbox and its con-

tents to the defendant while they were alone in a small

room with only the shift commander. Id. at 427. Even

under those circumstances, the Cervantes court held

that the deputy’s questioning was not an interrogation.

Id. at 429.

It is also particularly important that defendant was

questioned by Lieutenant Vashaw, who is an MDOC

officer and not an outside state official, regarding

conduct occurring within the prison. See Wilson, 641

F3d at 103; Anderson, 209 Mich App at 533. We note

that there is clearly a cooperative relationship between

the MDOC and the Michigan State Police. Lieutenant

Vashaw placed the two shanks found in defendant’s cell

in the state police evidence locker, and he explained at

the suppression hearing that corrections officers report

any information they obtain regarding possible criminal

violations to the state police, if requested to do so. We

further acknowledge that there may be circumstances

under which a corrections officer wears “two hats” in

that the officer seeks to both investigate criminal activ-

ity or possible criminal activity as a part of prison

administration and conduct a custodial interrogation.

But we do not find that to be the case here. Lieutenant

Vashaw restrained and isolated defendant pursuant to

departmental procedure and repeatedly testified that

by interviewing defendant he was not acting in the

place of a police officer. He was not asked by any outside

agency to interview defendant, and his purpose in

conducting the interview was to elicit information from

defendant that would be helpful to maintaining prison

safety, considering the recent violent and possibly gang-

related activity occurring in the prison. Again, the trial

court found Lieutenant Vashaw’s testimony to be cred-

ible, and we do not find clear error in that regard.

2011] P

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503

Although this case presents a close call because

defendant was questioned by a corrections officer re-

garding an offense within the prison and for the pur-

pose of maintaining prison safety, he was presented

with very limited evidence of his guilt, and he was

restrained and isolated pursuant to departmental pro-

cedure when dangerous weapons are found in an in-

mate’s area of control, we find that the questioning was

more like general on-the-scene questioning, see

Miranda, 384 US at 477-478, and Fields, 617 F3d at

819, and questioning essential to the administration of

a prison, see Cervantes, 589 F2d at 427, than the type of

custodial interrogation requiring Miranda warnings.

Miranda warnings were not necessary under the cir-

cumstances and to require them would unreasonably

impede prison administration. Thus, the trial court did

not err by finding no violation of defendant’s Fifth

Amendment rights.

III

Defendant further argues that, even if his Fifth

Amendment rights were not violated, the recording of

his statement was admitted in violation of MRE 403

because it was unfairly prejudicial since it included

information that he was possibly affiliated with two

gangs. We disagree.

We review a trial court’s decision to admit evidence

for an abuse of discretion. People v Mardlin, 487 Mich

609, 614; 790 NW2d 607 (2010). The abuse-of-discretion

standard recognizes that there may be no single correct

outcome in certain situations. People v Babcock, 469

Mich 247, 269; 666 NW2d 231 (2003). Instead, there

may be more than one reasonable and principled out-

come. Id. When the trial court selects one of these

principled outcomes, it has not abused its discretion,

504 294 M

ICH

481 [Oct

and the reviewing court should defer to the trial court’s

judgment. Id. An abuse of discretion occurs when the

trial court chooses an outcome falling outside the range

of principled outcomes. Id.

MRE 403 provides: “Although relevant, evidence may

be excluded if its probative value is substantially out-

weighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation

of cumulative evidence.” Evidence may be considered

unfairly prejudicial if there is a danger that “ ‘margin-

ally probative evidence will be given undue or preemp-

tive weight by the jury.’ ” Mardlin, 487 Mich at 627,

quoting People v Crawford, 458 Mich 376, 398; 582

NW2d 785 (1998).

In this case, the recording contained an admission by

defendant that he had made the two weapons, one for

himself and one to sell, and hid them in his cell. The

recording was, therefore, highly relevant to establishing

defendant’s guilt. But, as defendant notes, the record-

ing also contained statements of possible gang affilia-

tion. We note, however, that other evidence of defen-

dant’s gang affiliation was presented to the jury before

the recording was played. Lieutenant Vashaw testified

that the MDOC keeps a list of suspected gang members

and that defendant’s name was on the list. Lieutenant

Vashaw also testified that, because of the increased

violence in the prison, he directed a search of cells

belonging to suspected gang members, including defen-

dant’s cell. The evidence of defendant’s suspected gang

affiliation was relevant to explaining why his cell was

searched and possible reasons for him to be in posses-

sion of a weapon.

Furthermore, in addition to reducing the length of

the recording played for the jury, the trial court gave the

jury the following limiting instruction:

2011] P

EOPLE V

ORTEZ

505

If you find that the defendant was a prisoner, that fact,

plus any testimony relating to his incarceration or gang

activity, is no evidence otherwise of the defendant’s guilt in

this case. You should not think just because that he was a

prisoner, or that there was testimony relating to his incar-

ceration or gang activity, that the defendant did something

wrong or committed the crimes charged in this case.

We conclude that the probative value of the recording

was not substantially outweighed by the danger of

unfair prejudice. Any prejudice to defendant was mini-

mal, considering the other evidence of defendant’s gang

affiliation admitted at trial and the trial court’s limiting

instruction. Accordingly, the trial court did not abuse its

discretion by admitting the shortened version of the

recording.

Affirmed.

O’C

ONNELL

,P.J., and M

ETER

and B

ECKERING

, JJ., con-

curred.

506 294 M

ICH

481

In re PAROLE OF ELIAS

Docket No. 300113. Submitted August 10, 2011, at Detroit. Decided

November 1, 2011, at 9:00 a.m.

The Macomb County Prosecutor applied in the Macomb Circuit

Court for leave to appeal the Parole Board’s grant of parole to

Michelle Elias, a prisoner under the jurisdiction of the Department

of Corrections (DOC). The Parole Board intervened. The prosecu-

tor argued that even though Elias’s parole guidelines score indi-

cated a high probability of parole, there had been substantial and

compelling reasons on the record to deny Elias parole. The court,

James M. Biernat, Sr., J., agreed with the prosecutor and reversed

the Parole Board’s decision. It concluded that the board had

abused its discretion and determined that substantial and compel-

ling reasons had supported her continued incarceration. Elias

sought leave to appeal, which the Court of Appeals denied. The

Supreme Court, in lieu of granting Elias’s application for leave to

appeal, remanded the case to the Court of Appeals for consider-

ation as on leave granted. 488 Mich 1034 (2011).

The Court of Appeals held:

1. Under MCL 791.234(11), the decision to grant or deny

parole is within the sole discretion of the Parole Board, but the

Parole Board’s discretion is not absolute. Under MCL

791.233(1)(a), (e), and (f), the board may not release a prisoner

who has been incarcerated for two or more years unless he or she

has earned a GED and may not grant parole unless there is

satisfactory evidence that arrangements have been made for

employment, education, or for the prisoner’s care if he or she is

physically ill or incapacitated and the board has reasonable assur-

ance after considering all of the facts and circumstances that the

prisoner will not become a menace to society or to the public safety.

MCL 791.233e also requires the DOC to promulgate parole guide-

lines that quantify the applicable factors that should be considered

in a parole decision and are intended to inject more objectivity and

uniformity into the process to minimize recidivism and to prevent

improper factors from being considered, such as race. The parole

guidelines do not require the board to be absolutely objective.

Rather, the Parole Board must consider all the facts and circum-

In re P

AROLE OF

LIAS

507

stances, including the prisoner’s mental and social attitude, which

requires the evaluation of subjective factors.

2. Before a prisoner’s earliest release date, a DOC staff mem-

ber prepares a parole eligibility report (PER) for the board which

includes the prisoner’s prior record, adjustment, and other infor-

mation required by MCL 791.235. The DOC’s case preparation

unit uses the PER, along with the prisoner’s entire file, to score

the prisoner’s parole guidelines. The parole guidelines are scored

as required by DOC policy and result in a final score that is then

categorized into a high, average, or low probability of parole. A

prisoner facing parole may also be interviewed by one or more

Parole Board members. Under MCL 791.233e(6), the board may

depart from the parole guidelines, but to allow meaningful appel-

late review, it must state in writing substantial and compelling

reasons for such a departure. A departure from the parole guide-

lines probability may be justified on identified reasons that keenly

or irresistibly grab the board’s attention and are of considerable

worth in deciding whether it should deny or grant parole even

though the guidelines score indicated a high or low probability of

parole, respectively.

3. The DOC properly compiled a PER for Elias and calcu-

lated her parole guidelines score (which placed her in the

high-probability-of-parole category), created a COMPAS (Cor-

rectional Offender Management Profiling for Alternative Sanc-

tions) risk assessment (which indicated that she had a low risk

of engaging in violent or recidivist behavior), and prepared a

transition accountability plan report to prepare Elias for the

possibility of release. The Parole Board’s decision to grant

parole was not an abuse of its discretion and did not violate the

Constitution or any statute, rule, or regulation. The board’s

decision was consistent with the parole guidelines. The circuit

court improperly substituted its determination that substantial

and compelling reasons mandated denial of Elias’s parole for

that of the Parole Board rather than affording any meaningful

deference to the board. The circuit court improperly placed too

much emphasis on static factors like the nature of the sentenc-

ing offense and Elias’s prison misconduct, even though the most

recent misconduct had occurred more than five years before her

parole and the facts of the sentencing offense had already been

considered in the calculation of both the sentencing and parole

guidelines.

4. Contrary to the circuit court’s conclusion, it was not an

abuse of discretion for the Parole Board to grant Elias parole even

though prior panels of the board had reached a different conclu-

sion using the same evidence. Notwithstanding conflicting evi-

508 294 M

ICH

507 [Nov

dence, the board’s determination that Elias had accepted respon-

sibility for the crime was supported by evidence in the record.

There is no statute or caselaw that requires the board to specify

which documents it reviewed in rendering its decision. Letters

from the victim’s family arguing against the grant of parole were

contained in the record, and there was no evidence to support the

circuit court’s assumption that the board had not reviewed or

considered them in its decision process.

Reversed.

1. P

AROLE —

AROLE

OARD —

RANTS OR

ENIALS OF

AROLE —

ISCRETION

The decision to grant or deny parole is discretionary, the Parole

Board’s discretion is not absolute; the board may not release a

prisoner who has been incarcerated for two or more years unless

he or she has earned a GED and may not grant parole unless there

is satisfactory evidence that arrangements have been made for

employment, education, or for the prisoner’s care if he or she is

physically ill or incapacitated and the board has reasonable assur-

ance after considering all of the facts and circumstances that the

prisoner will not become a menace to society or to the public safety

(MCL 791.233[1][a], [e], [f]).

2. P

AROLE —

AROLE

OARD —

AROLE

UIDELINES —

EPARTURES —

UBSTAN-

TIAL AND

OMPELLING

EASONS

The parole guidelines quantify the applicable factors that the Parole

Board should consider in a parole decision and are intended to

inject more objectivity and uniformity into the process in order to

minimize recidivism and to prevent improper factors from being

considered, such as race; the parole guidelines do not require the

board to be absolutely objective; rather, the board must consider

all the facts and circumstances, including a prisoner’s mental and

social attitude, which requires the evaluation of subjective factors;

under MCL 791.233e(6), the board may depart from the parole

guidelines, but to allow meaningful appellate review there must be

substantial and compelling reasons stated in writing for the

departure; the reasons justifying departure from the guidelines

must be reasons that keenly or irresistibly grab the board’s

attention and are of considerable worth in deciding whether it

should nonetheless deny or grant parole.

Eric J. Smith, Prosecuting Attorney, Joshua D. Ab-

bott and Kerry Ange, Assistant Prosecuting Attorneys,

for the Macomb County Prosecutor.

2011] In re P

AROLE OF

LIAS

509

State Appellate Defender (by Susan M. Meinberg) for

Michelle Elias.

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, and H. Steven Langschwager, Assis-

tant Attorney General, for the Parole Board.

Before: M

ARKEY

,P.J., and S

AAD

and G

LEICHER

,JJ.

LEICHER

, J. The Michigan Parole Board (the Board)

granted Michelle Elias parole after she had served

approximately 25 years of a 20- to 40-year sentence. The

Macomb County Prosecutor objected to Elias’s release

and sought leave in the circuit court to appeal the

Board’s parole decision. The circuit court ruled that the

Board abused its discretion by granting Elias parole and

found that substantial and compelling reasons sup-

ported her continued incarceration. We conclude that

the circuit court invaded the Board’s authority and

substituted its judicial judgment for that of the Board.

Specifically, the Board fully adhered to the statutes,

regulations, and internal procedures governing parole

decisions, thoroughly reviewed the facts and circum-

stances before paroling Elias, and granted parole based

on objective scoring strongly supporting Elias’s paroled

release. Because the circuit court overstepped the

bounds of judicial review, we reverse and reinstate the

Board’s grant of parole.

I. THE PAROLE PROCESS IN MICHIGAN

There is scant published caselaw analyzing the mul-

tipart mechanics of Michigan’s current parole process.

Consequently, circuit courts lack useful precedent when

called upon to review the propriety of a parole decision.

We take this opportunity to explain the elements cul-

510 294 M

ICH

507 [Nov

minating in a parole decision and offer guidance to

circuit courts confronted with a parole-decision chal-

lenge.

The Legislature created the Parole Board as part of

the Michigan Department of Corrections (DOC). MCL

791.231a. The Board consists of 10 members serving

staggered terms. Id. “Most parole decisions are made by

three-member panels of the Parole Board. Decisions for

prisoners serving a life sentence are made by majority

vote of all ten members of the Parole Board.”

prisoner sentenced to a term of years comes under the

jurisdiction of the Board when he or she has served the

minimum sentence, adjusted for any good time or

disciplinary credits. MCL 791.233(1)(b) through (d);

MCL 791.234(1) through (5). Several months before the

prisoner’s earliest release date, a DOC staff member

must conduct an in-depth evaluation of the prisoner in

order to advise the Board. A prison staff member

prepares for the Board’s review a “Parole Eligibility

Report” (PER) summarizing the “prisoner’s prior

record, adjustment and other information[.]” DOC

Policy Directive 06.05.103, p 1;

see also MCL

791.235(7). In preparing a PER, the staff member

interviews the prisoner and gathers vital documenta-

tion, such as the results of any mental-health examina-

tions and evaluations from prison programs. DOC

Policy Directive 06.05.103, ¶¶ I, M, p 2. The PER “shall

contain information as required by MCL 791.235”

and

Department of Corrections, The Parole Consideration Process <http://

www.michigan.gov/corrections/0,4551,7-119-1435_11601-22909--,00.html>

(accessed August 26, 2011).

DOC policy directives are available at <http://www.michigan.gov/

corrections/0,1607,7-119-1441_44369--,00.html> (accessed August 26,

2011).

MCL 791.235(7) provides that the PER must outline the prisoner’s

major misconduct charges, his or her work and educational record while

2011] In re P

AROLE OF

LIAS

511

any other information requested by the Board for its

review. Id. at ¶ O, p 2. Prison officials submit the PER

to the Board’s “Case Preparation Unit,” along with the

contents of the prisoner’s central file. The unit uses the

PER and file documents to score the prisoner’s parole

guidelines. DOC Policy Directive 06.05.100, ¶ D, p 1.

Statutorily mandated parole guidelines form the

backbone of the parole-decision process. As described by

this Court in In re Parole of Johnson, 219 Mich App 595,

599; 556 NW2d 899 (1996), “[t]he parole guidelines are

an attempt to quantify the applicable factors that

should be considered in a parole decision” and are

“intended to inject more objectivity and uniformity into

the process in order to minimize recidivism and deci-

sions based on improper considerations such as race.”

The Legislature directed that the DOC refine the statu-

tory guidelines by developing more detailed regulations

“to assist the [Board] in making release decisions that

enhance the public safety.” MCL 791.233e(1). The DOC

has fulfilled this command by promulgating detailed

regulations and adopting policies and procedures con-

sistent with the regulations.

In MCL 791.233e(2) and (3) the Legislature enumer-

ated both mandatory and permissive factors for parole

guidelines to be incorporated in the DOC’s more com-

prehensive regulatory scheme:

(2) In developing the parole guidelines, the [DOC] shall

consider factors including, but not limited to, the following:

(a) The offense for which the prisoner is incarcerated at

the time of parole consideration.

(b) The prisoner’s institutional program performance.

in prison, the results of any medical or mental examinations, information

regarding the prisoner’s cooperation with the authorities, and a state-

ment regarding disciplinary time.

512 294 M

ICH

507 [Nov

(d) The prisoner’s prior criminal record....

(e) Other relevant factors as determined by the [DOC],

if not otherwise prohibited by law.

(3) In developing the parole guidelines, the [DOC] may

consider both of the following factors:

(a) The prisoner’s statistical risk screening.

(b) The prisoner’s age.

Pursuant to this legislative mandate, the DOC pro-

mulgated regulations outlining certain factors for the

Board to consider when making a parole decision:

(2) The [Board] may consider all of the following factors

in determining whether parole is in the best interests of

society and public safety:

(a) The prisoner’s criminal behavior, including all of the

following:

(i) The nature and seriousness of the offenses for which

the prisoner is currently serving.

(ii) The number and frequency of prior criminal convic-

tions.

(iii) Pending criminal charges.

(iv) Potential for committing further assaultive or prop-

erty crimes.

(v) Age as it is significant to the likelihood of further

criminal behavior.

(b) Institutional adjustment, as reflected by the follow-

ing:

(i) Performance at work or on school assignments.

(ii) Findings of guilt on major misconduct charges and

periods of confinement in administrative segregation.

(iii) Completion of recommended programs.

(iv) Relationships with staff and other prisoners.

2011] In re P

AROLE OF

LIAS

513

(v) Forfeitures or restorations of good time or disciplin-

ary credits.

(i) Acquisition of a vocational skill or educational degree

that will assist in obtaining employment in the community.

(ii) Job performance in the institution or on work-pass.

(iii) Development of a suitable and realistic parole plan.

(d) The prisoner’s personal history and growth, includ-

ing the following:

(i) Demonstrated willingness to accept responsibility for

past behavior.

(ii) Employment history before incarceration.

(iii) Family or community ties.

(e) The prisoner’s physical and mental health,...which

would reduce the likelihood that he or she would be able to

commit further criminal acts.

(3) The [Board] may consider the prisoner’s marital

history and prior arrests that did not result in conviction or

adjudication of delinquency, but shall not base a denial of

parole solely on either of these factors.

***

(5) A prisoner being considered for parole shall receive

psychological or psychiatric evaluation before the release

decision is made if the prisoner has a history of any of the

following:

(a) Hospitalization for mental illness within the past 2

years.

(b) Predatory or assaultive sexual offenses.

tution. [Mich Admin Code, R 791.7715(2), (3), and (5).]

Thus, the comprehensive regulatory parole guidelines

supplement the legislative guidelines by adding highly

514 294 M

ICH

507 [Nov

specific, objective criteria that must be considered dur-

ing the parole-decision process.

When scoring the parole guidelines, the Board must

consider “all relevant facts and circumstances, includ-

ing the prisoner’s probability of parole as determined by

the parole guidelines...andanycrime victim’s state-

ment....” Mich Admin Code, R 791.7715(1). Under

Mich Admin Code, R 791.7716(3), the scoring must be

based on “the length of time the prisoner has been

incarcerated for the offense for which parole is being

considered and each of the following factors”:

(a) The nature of the offense(s) for which the prisoner is

incarcerated at the time of parole consideration, as re-

flected by all of the following aggravating and mitigating

circumstances:

(i) Use of a weapon or threat of a weapon.

(ii) Physical or psychological injury to a victim.

(iii) Property damage of more than $5,000.00.

(iv) Excessive violence or cruelty to a victim beyond that

necessary to commit the offense.

(v) Sexual offense or sexually assaultive behavior.

(vi) Victim transported or held captive beyond that

necessary to commit the offense.

(vii) Multiple victims.

(viii) Unusually vulnerable victim, as reflected by age,

impairment, or physical disproportionality.

(ix) The prisoner acted as a leader of joint offenders.

(x) The prisoner has been designated as involved in

organized crime....

(xi) The prisoner has been designated as being a career

criminal....

(xii) The prisoner has been designated as a drug traf-

ficker....

2011] In re P

AROLE OF

LIAS

515

(xiii) The prisoner is serving life or a long indeterminate

sentence and is being considered for parole under [MCL

791.234(4)].

(xiv) The act was a situational crime with low probabil-

ity of reoccurrence.

(xv) The prisoner’s role was minor or peripheral to other

joint offenders.

(b) The prisoner’s prior criminal record, as reflected by

all of the following:

(i) Assaultive misdemeanor convictions that occurred

after the prisoner’s seventeenth birthday.

(ii) The number of jail and prison sentences imposed.

(iii) The number of felony convictions.

(iv) The number of convictions for assaultive felonies....

(v) The number of prior convictions for sex offenses or

sexually motivated crimes.

(vi) The number of probation, delayed sentence, and

parole failures.

(vii) Whether the offense for which parole is being

considered was committed while the prisoner was on

probation, delayed sentence, or parole.

(viii) Whether the prisoner was incarcerated for a vio-

lation while on probation for the offense for which parole is

being considered.

(ix) The number of commitments as a juvenile for acts

that would have been crimes if committed by an adult.

(x) Whether the prisoner was on probation as a juvenile

for acts that would have been crimes if committed by an

adult at the time the offense for which parole is being

considered was committed.

department facility,...asreflected by the following:

(i) The number of major misconduct convictions and

security classification increases over the previous 5 years and

during the year immediately before parole consideration.

516 294 M

ICH

507 [Nov

(ii) The number of nonbondable major misconduct con-

victions over the previous 5 years.

(iii) The number of major misconduct convictions for

assault, sexual assault, rioting, or homicide during the

previous 5 years.

(d) The prisoner’s placement on the assaultive and

property risk screening scales.

(e) The prisoner’s age at the time of parole eligibility.

(f) The prisoner’s performance in institution programs

and community programs during the period between the

date of initial confinement on the sentence for which parole

is available and parole eligibility, including, but not limited

to, participation in work, school, and therapeutic pro-

grams.

(g) The prisoner’s mental health as reflected by the

following:

(i) A psychiatric hospitalization as a result of criminal

activity in the background of the prisoner.

(ii) A history of physical or sexual assault related to a

compulsive, deviant, or psychotic mental state.

(iii) A serious psychotic mental state that developed

after incarceration.

(iv) Whether subsequent behavior or therapy suggests

that improvement has occurred. [Emphasis added.]

To facilitate scoring, the Board separated the parole-

guideline factors into eight sections: (1) active sentence,

(2) prior criminal record, (3) conduct, (4) statistical risk,

(5) age, (6) program performance, (7) mental health,

and (8) housing (referring to the prisoner’s security

level within the prison system). DOC Policy Directive

06.05.100, Attachment A, p 1. Much like the legislative

sentencing guidelines, each parole-guideline section in-

cludes a list of factors to be scored and instructions on

the point value to be assigned, which include both

positive and negative points. Id. at 1-9. After every

2011] In re P

AROLE OF

LIAS

517

factor is scored, the scores are aggregated to reach a

total section score and ultimately the “Final Parole

Guidelines Score.” Id. at 1, 10. “That score is then used

to fix a probability of parole determination for each

individual on the basis of a guidelines schedule. Prison-

ers are categorized under the guidelines as having a

high, average, or low probability of parole.” Johnson,

219 Mich App at 599. A prisoner with a score of +3 or

greater merits placement in the high-probability cat-

egory, a score of –13 or less warrants assignment to the

low-probability category, and a score between those

figures falls within the average-probability category.

DOC Policy Directive 06.05.100, Attachment A, p 10.

A prisoner being considered for parole may also

undergo an interview conducted by one or more Board

members assigned to the prisoner’s panel. If the pris-

oner’s guidelines score falls within either the high- or

low-probability-of-parole categories and the Board in-

tends to follow the guidelines recommendation to grant

or deny parole respectively, the Board need not inter-

view the prisoner. MCL 791.235(1), (2); DOC Policy

Directive 06.05.104, ¶ J, p 3. In all other situations, at

least one member of the panel must personally inter-

view the prisoner. “Parole interviews are informal,

non-adversarial proceedings.” DOC Policy Directive

06.05.104, ¶ R, p 4. During the prisoner’s parole inter-

view, he or she is entitled to bring a “representative”

and to “present relevant evidence in support of re-

lease,” but the representative may not be another

prisoner or an attorney. MCL 791.235(6); DOC Policy

Directive 06.05.104, ¶ S, p 4. “[A] staff member familiar

with classification and program matters” also attends

the interview to assist the prisoner and the Board

member “by presenting or clarifying pertinent informa-

tion in a fair and objective manner.” DOC Policy Direc-

518 294 M

ICH

507 [Nov

tive 06.05.104, ¶ S, p 4. Following the parole interview,

a “Case Summary Report” is created for the Board’s

review.

In 2005, the DOC began implementing the Michigan

Prisoner ReEntry Initiative (MPRI) in various stages.

The MPRI is a multiagency, multicommunity project

designed to promote public safety and reduce the like-

lihood of parolee recidivism. The MPRI Model: Policy

Statements and Recommendations, Michigan Prisoner

ReEntry Initiative, January 2006, p 2.

The mission of

the MPRI “is to significantly reduce crime and enhance

public safety by implementing a seamless plan of ser-

vices and supervision developed with each offender and

delivered through state and local collaboration....”

DOC Policy Directive 03.02.100, p 1. One goal of the

MPRI is to “improve[] decision making at critical deci-

sion points,” such as when the Board is considering

whether to release a prisoner from incarceration on

parole. Id. at ¶¶ C, E.2, pp 1-2. Under the MPRI, the

DOC and the Board are now required to prepare and

consider additional reports, and in particular the tran-

sition accountability plan (TAP):

The lynchpin of the MPRI Model is the development and

use of Transition Accountability Plans (TAPs) at four

critical points in the offender transition process that suc-

cinctly describe for the offender, staff, and community

exactly what is expected for offender success. The TAPs,

which consist of summaries of the offender’s Case Manage-

ment Plan at critical junctures in the transition process,

are prepared with each prisoner...at the point of the

parole decision....[MPRI Model, p 5.]

A staff member from the DOC must formulate a TAP

with each prisoner, mostly to assist the prisoner’s

This report is available at <http://www.michigan.gov/documents/

THE_MPRI_MODEL_1005_140262_7.pdf> (accessed August 26, 2011).

2011] In re P

AROLE OF

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519

reentry into society, but also to assist the Board in

rendering its parole decision. A TAP contains four

elements:

➣ Needs are criminogenic

[

]

factors that contribute to

risk and are individually assessed using the COMPAS risk

assessment instrument.

➣ Goals are designed to mitigate each criminogenic

need.

➣ Tasks are developed with each offender to meet the

goals defined in the plan.

➣ Activities are created with each offender to break

each task down into manageable steps.

[

]

COMPAS, the acronym referred to in the TAP guide-

lines, stands for the “correctional offender management

profiling for alternative sanctions” program. COMPAS

is a comprehensive risk and needs assessment system,

which takes into account both static information (such

as the prisoner’s past criminal offenses) and dynamic

data (such as the prisoner’s evolving attitudes and

mental condition).

“COMPAS is designed to support

treatment, programming and case management deci-

sions. The various COMPAS reports describe the of-

fender’s risk and criminogenic needs. The fundamental

The term “criminogenic” is defined as “[p]roducing or tending to

produce crime or criminality.” The American Heritage Dictionary of the

English Language (4th ed, 2000). Accordingly, a “criminogenic factor” is

a factor that produces or tends to produce crime or criminality.

Implementation of the Transition Accountability Plan, 4th Quarter

Fiscal Year 2009 Report, p 1, available at <http://www.michigan.gov/

corrections/0,1607,7-119-1441_1513---,00.html> by clicking on Transac-

tion Accounting Plan – Fourth Quarter under the 2009 list (accessed

August 26, 2011).

Northpointe Institute for Public Management Inc., COMPAS Risk

and Need Assessment System: Selected Questions Posed by Inquiring

Agencies, January 14, 2010, pp 1-2, available at <http://

www.northpointeinc.com/software-suite.aspx> by clicking on Overview

and then on Download FAQ Document (accessed August 26, 2011).

520 294 M

ICH

507 [Nov

task is to ‘connect the dots’ among the various factors

and develop a more integrated and coherent interpre-

tation of each persons [sic] support needs.”

In conducting a COMPAS risk assessment, a case

manager considers various characteristics of the of-

fender and the offense and inputs scores into the

COMPAS computer software program. The software

generates a score ranking the offender’s statistical

likelihood of violence, recidivism, success on parole, and

other factors.

The COMPAS program incorporates in-

formation gleaned from the offender’s prior criminal

history, drug involvement, early indicators of juvenile

delinquent problems, and criminal associations to as-

sess a “general recidivism risk.”

The prisoner’s his-

tory of violent or assaultive crimes, prior use of weap-

ons, past parole experience, and other similar factors

contribute to the prisoner’s “violent recidivism risk.”

COMPAS also assesses more benign factors such as the

level of the prisoner’s family support and the prisoner’s

ability to gain employment, manage his or her finances,

and find suitable housing once paroled.

Ultimately, “matters of parole lie solely within the

broad discretion of the [Board]....” Jones v Dep’t of

Corrections, 468 Mich 646, 652; 664 NW2d 717 (2003);

see also Hopkins v Parole Bd, 237 Mich App 629, 637;

604 NW2d 686 (1999); MCL 791.234(11). Notwith-

standing, the Legislature has clearly imposed certain

statutory restrictions on the Board’s exercise of its

Id. at 3.

Id. at 4-5

Northpointe Institute for Public Management, Inc, Measurement &

Treatment Implications of COMPAS Reentry Scales (2009) p 4, available at

<http://www.michigan.gov/documents/corrections/Timothy_Brenne_Ph.D._

Meaning_and_Treatment_Implications_of_COMPAS_Reentry_Scales_

297503_7.pdf> (accessed August 26, 2011).

Id. at 5.

Id. at 11, 16-17.

2011] In re P

AROLE OF

LIAS

521

discretion. In addition to creating the framework shap-

ing the regulatory parole guidelines, the Legislature

forbade the Board from releasing a prisoner who has

been incarcerated for two or more years unless that

prisoner has earned a general education development

certificate GED. MCL 791.233(1)(f). The Board may not

grant parole unless it “has satisfactory evidence that

arrangements have been made for...employment...,

for the prisoner’s education, or for the prisoner’s care if

the prisoner is mentally or physically ill or incapaci-

tated.” MCL 791.233(1)(e). Most importantly, “[a] pris-

oner shall not be given liberty on parole until the board

has reasonable assurance, after consideration of all of

the facts and circumstances, including the prisoner’s

mental and social attitude, that the prisoner will not

become a menace to society or to the public safety.”

MCL 791.233(1)(a); see also Johnson, 219 Mich App at

598.

The Legislature recognized, however, that in some

circumstances the parole guidelines fail to take into

account adequate information. Accordingly, the Legis-

lature expressly granted the Board discretion to depart

from the parole guidelines:

The parole board may depart from the parole guidelines

by denying parole to a prisoner who has a high probability

of parole as determined under the parole guidelines or by

granting parole to a prisoner who has a low probability of

parole as determined under the parole guidelines. A depar-

ture under this subsection shall be for substantial and

compelling reasons stated in writing. [MCL 791.233e(6)

(emphasis added).]

The DOC adopted an identical regulatory provision

allowing for parole departures. Mich Admin Code, R

791.7716(5). Once the Board has rendered its decision,

it must issue in writing “a sufficient explanation for its

decision” to allow “meaningful appellate review,”

522 294 M

ICH

507 [Nov

Glover v Parole Bd, 460 Mich 511, 519, 523; 596 NW2d

598 (1999), and to inform the prisoner of “specific

recommendations for corrective action” if necessary “to

facilitate release,” MCL 791.235(12).

II. PRIOR AND CURRENT CONSIDERATION FOR PAROLE

With this framework in mind, we now consider the

history of Elias’s imprisonment and the progression of

her parole reviews. In 1985, a jury convicted Elias of

second-degree murder, MCL 750.317, and possession a

firearm during the commission of a felony (felony-

firearm), MCL 750.227b. Elias’s convictions arose from

the murder of Brian Barczynski. Elias had been in a

romantic relationship with Barczynski’s wife, Vicki.

According to Elias, Barczynski had physically abused

Vicki, motivating Elias to end the abuse. While under

the influence of mescaline, Elias waited until the Barc-

zynski family went out before breaking into their home.

She positioned herself in a second-story window with a

single-shot shotgun and waited for Barczynski to re-

turn. Barczynski drove up to the house with his wife,

his four-year-old daughter, and another young child.

When Barczynski got out of his vehicle, Elias shot him

from her window perch, reloaded the shotgun, and shot

him a second time. Elias then came outside, stood over

Barczynski’s body, and shot him in the face at close

range. On August 28, 1985, then Circuit Court Judge

Lawrence Zatkoff sentenced Elias to consecutive prison

terms of two years for the felony-firearm conviction and

20 to 40 years for the murder conviction. The trial court

imposed these sentences under the now-superseded

judicial sentencing guidelines.

The judicial guidelines score sheet is not included in the lower court

record. However, from our independent review of the offense variables

2011] In re P

AROLE OF

LIAS

523

During much of her incarceration, Elias was not a

model prisoner. Between 1986 and 2003, the prison

issued her 35 major misconduct tickets. Elias’s miscon-

duct generally related to disobedience, presence in

unauthorized areas, and sexual contact with other

prisoners. In 1996 Elias pleaded guilty to one charge of

attempted malicious destruction of prison property (a

vending machine) and was sentenced to an additional

consecutive six-month term of imprisonment.

In 1999,

Elias placed a piece of burning paper into a prison

dumpster and started a fire, which led to an adminis-

trative adjudication of guilt.

Yet Elias’s record also documents noteworthy accom-

plishments, and she has not committed any type of

misconduct since 2003. Elias earned her GED in 1986,

and later completed a vocational training program in

custodial work. She worked full-time in the prison food

service program and received positive reports from her

supervisors. Elias voluntarily participated in several

substance abuse programs and completed group

therapy for assaultive offenders (AOT). She recently

married a longtime pen pal, who appears to be an

exemplary citizen of Jacksonville, Florida.

Elias first became eligible for parole consideration on

January 1, 2006, after serving 21 years and 3 months of

her aggregated 22

-year minimum term of imprison-

ment. At that time, Elias’s parole guidelines scored at

+3 points, equating with an average probability of

parole. The Board had access to Elias’s March 14, 2006

AOT “Termination Report,” which indicated that Elias

applicable at that time, Elias’s minimum sentence of 20 years is well

within the seemingly applicable minimum judicial guidelines range of 10

years to life.

MCL 768.7a(1) provides for consecutive sentencing when a defen-

dant is convicted of additional criminal offenses committed during

incarceration.

524 294 M

ICH

507 [Nov

had attended 47 sessions of AOT while incarcerated. In

relation to Elias’s general participation in group

therapy, the report stated that Elias had displayed

honesty and completed her assigned tasks; however, she

had not actively and openly participated in the therapy

and showed little empathy toward other participants.

The AOT described that Elias made great strides to-

ward cultivating “better understanding and more effec-

tive management of [her] criminal behaviors.” Elias

was able to describe her criminal acts, explain what led

to her criminal acts, and accept responsibility for those

acts. Elias had also “[p]repared a comprehensive plan

for managing [her] criminal behavior.” However, Elias

did not have similar insight into her feelings and

emotions. While Elias demonstrated an ability to man-

age her anger, she was unable to identify her feelings

and emotions or connect those feelings to her outward

criminal behavior. Although Elias had not completely

met her therapy goals, the evaluator noted that Elias

“completed the Assaultive Offender Program.”

The Board also considered the September 19, 2005

case-summary report prepared after two panel mem-

bers interviewed Elias. The case summary noted that

Elias minimized her responsibility by rationalizing that

she had been under the influence of drugs and shot

Barczynski to avenge his physical abuse of his wife. The

Board denied parole on March 28, 2006.

By October 2007, Elias had improved her parole-

guideline score to +9 points, placing her in the high-

probability-of-parole category. A case summary pre-

pared in September 2007 noted that Elias’s behavior

had improved over the course of her incarceration. The

interviewing Board member indicated that Elias had

accepted responsibility for her crime: “Says she did

commit the crime, says she was having a relationship

2011] In re P

AROLE OF

LIAS

525

with [Barczynski’s] wife, says [Barczynski] was abusing

[his wife], says she decided to take matter into her

[own] hands, says she shot [Barczynski] thinking she

was doing the right thing at that time.” Moreover, Elias

felt “horrible about what she did to” Barczynski. How-

ever, the case summary inconsistently notes that Elias

“seems to be in denial and continue[s] to minimize[] the

crime” and “did not demonstrate enough insight into

her crime.” The Board denied parole on October 15,

2007, stating as its “substantial and compelling rea-

sons” for departure that Elias “did not demonstrate

enough insight into her crime” during the parole inter-

view and “showed no remorse” for her crime or empa-

thy for her victim.

Staff members at the DOC did not evaluate Elias

under the TAP or COMPAS programs until September

2008. Elias’s TAP report indicated that she had a low

risk for violence and recidivism. Elias’s strengths in-

cluded her mature age, ability to transition into a stable

and appropriate residence and social environment, full-

time employment within the prison, and GED. How-

ever, the TAP case manager determined that Elias had

a high probability of engaging in criminal thought and

needed to further develop her social attitude (leading to

a score of +9 points on a 10-point scale). Similarly, the

report indicated that Elias would probably have diffi-

culty with cognitive behavior (score of +6 points). The

case manager predicted that Elias would probably have

difficulty reentering the work force given her minimal

vocational training and educational deficiencies (score

of +7 points).

Elias’s COMPAS risk-assessment report indicated

that Elias was at low risk of engaging in violent or

recidivist behavior. The report described the sentencing

offense as a violent felony and included references to

526 294 M

ICH

507 [Nov

the separate property offenses Elias committed while

incarcerated. The scales used to assess Elias’s risks and

needs reflected that Elias had no current substance

abuse problem but could benefit from further treat-

ment to prevent its resurgence (leading to a score of +1

point on a 10-point scale).

Elias was assessed as having

“probable” difficulty in reentering the work force given

her lack of education and minimal vocational training.

Moreover, Elias required additional training in methods

of finding employment (scores of 6 and +7 points).

Elias was judged unlikely to have housing problems

upon release, and her family members had no criminal

involvement (scores of +1 point and +2 points).

The

report also expressed that Elias was unlikely to face

financial problems upon her release (score of +4

points)

and had a positive mental-health outlook

(score of +1 point). In relation to “Cognitive

Behavioral/Psychological” criminogenic needs, the

report denoted that Elias does not likely have a

criminal personality and that her conduct/thought

process appears devoid of impulsivity, risk-taking,

restlessness/boredom, and selfishness. However, the

case manager failed to assign a numeric score for that

factor.

See Measurement & Treatment Implications of COMPAS Reentry

Scales, p 19.

The COMPAS assessment includes gender-specific scales to gauge a

female parolee’s employment, financial, and educational needs upon

reentry into society. See id. at 20-21.

See id. at 17 (“A low score...indicates an offender who has a stable

and verifiable address[.]”); id. at 8 (noting that a parolee may need to

plan for minimizing family contact if family members are likely to engage

in criminal behaviors).

Id. at 17.

The “Reentry Cognitive Behavioral” scale is “a higher order scale

that incorporates the concepts and items included in the Criminal

Associates, Criminal Opportunity, Criminal Thinking, Early Socializa-

2011] In re P

AROLE OF

LIAS

527

Based on the 2006 AOT termination report and the

2008 TAP and COMPAS reports, the Board denied Elias

parole on December 2, 2008. An August 2008 case

summary indicated that Elias minimized her criminal

responsibility and failed “to comprehend the serious-

ness of” her offense. The summary further noted that

Elias “relates little interest in the victim.” Because

Elias remained in the high probability-of-parole cat-

egory, the Board provided “substantial and compelling”

reasons for its departure from the guidelines. The

Board cited Elias’s explanation during her parole inter-

view for murdering Barczynski. Elias “couldn’t explain

her actions, was in a rage,& [sic] didn’t know why.

[Board] is not convinced [Elias] has gained sufficient

insight into her assaultive behavior to assure risk is

reduced.”

By March 2009, Elias had improved her parole-

guideline score to +15 points, well above the score of +3

points necessary for placement in the high-probability-

of-parole-category. Moreover, a March 2009 case-

summary report indicated that Elias had accepted re-

sponsibility for her criminal actions. On May 29, 2009,

however, the Board again denied Elias parole. As its

“substantial and compelling reasons” to depart from

the guidelines, the Board stated that Elias “demon-

strated a lack of insight into her behavior. This, along

with [the AOT termination report] indicating a lack of

insight into her emotions, demonstrates that risk re-

mains...”

tion, and Social Adjustment scales.” Id. at 15. The scale also takes into

consideration “all items from” the Criminal Thinking Observations,

Negative Social Cognitions, Life Goals/Aimless, Low Empathy, Early

Onset, and Prison Misconduct scales. A score of seven or greater

“suggest[s] a need for cognitive restructuring intervention” or “close

supervision.” Id.

528 294 M

ICH

507 [Nov

Despite its previous four denials of parole, the Board

granted parole to Elias on February 10, 2010. In prepa-

ration for the Board’s review, the DOC prepared a PER

on November 24, 2009. The PER indicated that Elias

posed a “very low” assault risk and “low” property risk.

The PER included as Elias’s “active offenses” the

felony-firearm, second-degree murder, and malicious

destruction of property charges and observed that Elias

had no prior criminal record. In relation to Elias’s

institutional adjustment, the PER mentioned Elias’s 35

major misconducts while incarcerated. However, the

PER indicated that Elias had not committed any mis-

conduct since her last PER and had remained in the

lowest security level at the prison since at least 2006.

The report even stated that Elias’s “[m]ost recent

reports are excellent.” In relation to institutional pro-

gramming, the PER noted that Elias had earned her

GED in March 1986 and participated in a custodial

maintenance vocational training program. Elias had

been working in the prison’s food service program since

2003 and had consistently received “very good to excel-

lent” reports. Elias completed substance abuse counsel-

ing in 1999, never required referral for psychological

counseling, and completed AOT in 2006. The PER

summarized that Elias had completed all recommended

programs and that “at least

of all program reports

[were] above average” and further noted that Elias

planned to move to Jacksonville, Florida to live with her

husband when released on parole.

The Board’s Case Preparation Unit then used the

PER to calculate Elias’s parole guidelines. We now turn

to a summary of Elias’s scores in the eight guidelines

sections. The Board scored three aggravating factors

under the “active sentence” portion of the guidelines.

Specifically, Elias received –1 point for the use of a

weapon during the offense, –3 points for using force

2011] In re P

AROLE OF

LIAS

529

that caused death, and –1 point for engaging in “vio-

lence or cruelty beyond that necessary to commit” the

crime. Accordingly, Elias received an active-sentence

score of –5 points. However, a prisoner receives credit

toward the active sentence score to reflect the length of

time he or she has already served. After the adjustment,

Elias received an aggregate active-sentence score of –2

points. See DOC Policy Directive 06.05.100A, pp 1-2.

Although Elias had no criminal history before com-

mitting the sentencing offense, the Board assigned a

score for the prior criminal record variables under the

guidelines. Given the length of time Elias had already

served, her score was neutralized at zero points. See id.

at 3-4. In relation to institutional conduct, the guide-

lines required scoring points only for major miscon-

ducts or increased security classifications within the

previous five years and within the year prior to the

parole consideration. As Elias had not engaged in

misconduct since 2003 and remained in a low-security

classification, she received zero points for this category.

The Board again weighted Elias’s score, which resulted

in an aggregate institutional-conduct score of +8

points. See id. at 4-5.

Elias’s COMPAS statistical-risk analysis placed her

in the “very low assaultive risk and low property risk”

categories. This combination resulted in an aggregate

statistical-risk score of +3 points. See id. at 6. Her age

of 48 further reduced her scored risk for committing

criminal offenses. Accordingly, Elias received an “age”

score of +3 points. See id. at 7.

The “programming section” of the parole guidelines

measures “[t]he prisoner’s completion of recommended

and approved programming....”Id. at 8. This section

is scored on a pass-fail basis, with the prisoner receiving

credit for adequate completion of a program and demer-

530 294 M

ICH

507 [Nov

its for inadequate completion of a program. Elias was

assigned +1 point, representing that she had “no inad-

equates and at least two-thirds of the programs were

rated as excellent/outstanding.” Elias’s adjusted aggre-

gate programming score was +3 points. See id.

Ulti-

mately, her final parole-guideline score equaled +15

points, placing her in the high-probability-of-parole

category.

Following Elias’s parole interview, a case summary

prepared on December 14, 2009, acknowledged that

Elias had committed an assaultive crime resulting in

death. The summary noted, however, that Elias “ac-

cepts responsibility” for her crime and criminal behav-

ior and quoted Elias’s description of the offense:

[Elias] says she was in a realtionship [sic] with a

girlfriend, her husband and her boyfriend. Says they got

into a fight and she ended up shooting her [sic] husband.

[Elias] says she was intended [sic] to shoot herself and

when she saw the victim she started shooting.. [sic] Says

the gunbelonged [sic] to her boyfriend. Says she had always

been fighting with the victim because he was very abusive

to her girlefriend [sic]. Says the way she grew up violence

was the way to solve problems.. [sic] Says the Clintio [sic]

Township police had been called earlier because she would

not lea[v]e the victim[’]s home.. [sic] [Elias] was involved

in a lover[’]s triangle plus 1.

The case summary explained that Elias’s “behavior

reflected in the [prison] misconducts” had “dimin-

ished.” Elias had received “satisfactory block reports”

and had not committed any misconduct since October 1,

The evaluator did not score the mental-health or housing sections of

Elias’s guidelines because those variables were inapplicable in this case.

The mental-health section is scored when the prisoner has a history of

committing sexual offenses, and the housing section applies to prisoners

housed in top-level-security facilities. See DOC Policy Directive

06.05.100A, pp 8-9.

2011] In re P

AROLE OF

LIAS

531

2003. The interviewing Board member believed that

Elias also accepted responsibility for her misconduct

while incarcerated.

The case summary noted that Elias had “completed

therapy,” including a “psychoeducational group” in

1994, had “maximized the benefits of [AOT],” and had

“made progressive improvement in her insight & deter-

[m]ination to control her impulses, depressive feelings

& irratability [sic].” Elias had also completed several

substance abuse therapy programs, self-help program-

ming, and a 1989 “alternative to violence” group coun-

seling program. The summary also cited Elias’s voca-

tional training and work performance, as well as the

GED she earned in 1986. The interviewing Board

member accepted the truth of Elias’s statement that

“she ha[d] learned to deal with situations, and to have

better control.”

The case summary noted that Elias had “maintained

family support” while incarcerated and that her pro-

posed placement with her husband in Jacksonville,

Florida was “acceptable.” Moreover, the interviewing

Board member indicated that he had reviewed the

relevant documents, including the AOT termination

report. The case summary quoted the Board member as

indicating:

[Elias] is very emotional, says she takes full responsibil-

ity.. [sic] Knows she hurt the victim and his family.. [sic]

Says she prays everyday, wishes there was some way she

could go back and change it.. [sic] Says the victim was her

friend and that they did have some good times also. [Elias]

says if given the chance, she has a husband and will never

be a problem.. [sic] Says she wants to enjoy the years she

has left.. [sic] Says she has learned a lot and can walk away

from anything.. [sic] Says there will never be any prob-

lems... [sic] [The interviewing Board member] feel[s] she

will do well. She has great support, was very emotional, has

532 294 M

ICH

507 [Nov

insight and a strong desire to make it. Husband works with

the sheriff[’]s department, knows the rule about no guns..

[sic] He love[s] his wife and will give her everything she

needs. Willing to give inmate a second chance at tlife.. [sic]

Before making its decision, the Board panel was also

able to review the interviews and assessments made

during prior parole considerations. Barczynski’s widow

and now-grown children submitted several letters urg-

ing the Board to deny Elias parole and continue her

imprisonment for the maximum 40-year term.

After considering the vast wealth of information

before it, the Board granted Elias parole on February

10, 2010, to begin effective July 1, 2010. The notice of

decision specified that “[r]easonable assurance exists

that the prisoner will not become a menace to society or

to the public safety....”TheBoard expressed its belief

that Elias accepted responsibility for her crime and

criminal behavior. Further, Elias’s history of institu-

tional misconducts had diminished and she had earned

satisfactory reports from the cellblock guards. The

Board noted that Elias had earned her GED, completed

vocational training, self-help programming, and sub-

stance abuse counseling and was adequately involved in

her prison employment. Elias also “maintained family

support” while in prison and had a family support

system in place upon her release. The Board further

determined that Elias’s placement in Florida with her

husband was acceptable.

III. PROSECUTOR’S APPEAL OF PAROLE BOARD DECISION

The Macomb County Prosecutor appealed the

Board’s decision in the Macomb Circuit Court. The

court issued a stay pending its review and, as a result,

Elias remains in prison. The prosecutor argued that the

Board had abused its discretion by granting parole,

2011] In re P

AROLE OF

LIAS

533

despite Elias’s scoring as having a high probability for

parole, because substantial and compelling reasons sup-

ported a departure from the guidelines recommenda-

tion. More specifically, the prosecutor challenged the

Board’s current decision to grant parole when it had

denied parole on two previous occasions using the same

TAP and COMPAS reports and on two additional pre-

vious occasions in reliance on the same AOT termina-

tion report.

The circuit court reversed the Board’s decision.

While recognizing the many positive factors in the

record, the court determined following a review of “the

entire record and the guidelines” that the Board had

clearly abused its discretion. Reviewing the Board’s

brief summary of the underlying offense, the circuit

court concluded that the Board had failed to fully

consider the egregious nature of the crime. The court

challenged the Board’s reliance on the fact that Elias

had simply “completed” therapy designed to overcome

her assaultive behavior. Considering the “substance” of

the therapy report, the circuit court noted that Elias

“only partially completed” the stated goals of her treat-

ment. The court concluded that the Board should also

have considered the details within the therapy report,

which revealed Elias’s unsatisfactory performance. The

circuit court also believed that the Board had given

inadequate weight to Elias’s long history of institu-

tional misconduct by simply noting that Elias’s “behav-

ior reflected in misconducts has diminished.”

The circuit court also took into account “other rel-

evant factors” and reasoned as follows:

The Court finds relevant the letters by the victim’s

relatives, regarding the release of [Elias], directed to the

[Board] and included in the record....[I]t is unclear from

534 294 M

ICH

507 [Nov

the record whether the [Board] gave these letters any

consideration when making its determination.

The Court further recognizes that [Elias] has been denied

parole on at least six occasions.

[

]

The parole denials con-

sistently found [Elias] had no insight into her behavior and

does not demonstrate empathy. The most recent denial of

parole on May 29, 2009 stated “the prisoner demonstrated

lack of insight into her behavior.”...The[Board] relied on

the [AOT] Termination Report, dated March 14, 2006,

indicating “a lack of insight into her emotions, demon-

strates that risk remains.”...The[Board] also reasoned

their denials were consistent with the prisoner’s [AOT]

Termination Report, which indicated that she “completed”

[AOT], but also indicates that defendant only “partially”

completed the only two goals of the programs....

[

]

The

[Board] then relies on this same [AOT] Termination Re-

port when it grants [Elias] parole approximately eight

months later. The Court cannot reconcile the [Board’s] use

of this report and finds its recent reliance on this report to

grant parole is a clear abuse of discretion.

Further, the COMPAS report, dated September 11,

2008, indicates overall low violence and low recidivism....

However, the report fails to provide a score for the cognitive

behavioral/psychological section.... The TAP report,

dated September 11, 2008, indicates a score of highly

probable to continue having problems with criminal think-

ing; probable to have reentry vocation/education problems;

From the record before us, it appears that Elias was denied parole on

four occasions, not six. The record includes information gathered in a

1995-1996 parole review more than 10 years before Elias was even

eligible for parole, which might have resulted in a fifth denial of parole

had she been eligible.

The therapy program actually included three goals: (1) to “[a]chieve

better understanding and more effective management of your criminal

behaviors,” (2) to “[a]chieve better understanding and more effective

management of feelings which seem to be connected with your criminal

behavior,” and (3) to “[a]chieve better understanding and more effective

management of thoughts which seem to be connected to your criminal

behavior.”

2011] In re P

AROLE OF

LIAS

535

and probable cognitive behavioral problems....[Elias] was

denied parole on three occasions after these reports were

generated.

[

]

The Case Summary Reports further detail[] the infor-

mation the [Board] relied upon in making its decision....

The reports repeatedly indicate [Elias] minimizes her re-

sponsibility for the underlying crimes and provides numer-

ous excuses....However, based on the same information,

several Case Summary Reports come to the conclusion that

defendant has now accepted responsibility for the underly-

ing crime....Theconflicting [DOC] assessments are evi-

dence of the [Board’s] clear abuse of discretion.

While the Notice of Decision states the [Board] consid-

ered the facts and circumstances, it appears that the

[Board] did not give sufficient consideration to the circum-

stances of the crime resulting in [Elias’s] conviction. Spe-

cifically, the severity and details of the crime and its affect

[sic] on the victim’s family were not significantly weighed.

In addition, the substance of the [AOT] Termination Re-

port was not properly considered. Further, it is unclear

what evidence supports the [Board’s] conclusion that

[Elias] has now taken responsibility for her criminal ac-

tions. For these reasons, it is the Court’s opinion that the

[Board] did not fully consider, as required by MCL

791.233(1)(a), “all of the facts and circumstances, including

the prisoner’s mental and social attitude,” in order to

determine that “the prisoner will not become a menace to

society or to the public safety.” The failure to consider such

facts and circumstances violates the statutory require-

ment. MCL 791.233(1)(a)[].

Further, other than mere conclusions, the [Board] has

failed to cite sufficient verifiable facts or circumstances

which provide reasonable assurance that [Elias] will no

longer be a menace to society or to the public safety upon

her release from prison. For these reasons, the Court finds

that the [Board’s] decision to grant parole was not sup-

ported by competent, material and substantial evi-

Elias was actually denied parole on two occasions after these reports

were generated.

536 294 M

ICH

507 [Nov

dence....

[

]

Upon thorough review of the entire record,

the Court believes that the decision to grant parole falls

outside the range of reasonable and principled out-

comes....

Finally, the [Board] argues that it could not deviate from

the parole guidelines absent [substantial] and compelling

reasons pursuant to MCL 791.233e(6). However, there

were substantial and compelling reasons to depart, as

identified above, and the [Board] clearly abused its discre-

tion by not acting on those reasons....

The Board subsequently filed a motion for reconsid-

eration, highlighting that the circuit court relied on the

wrong standard of review by requiring the Board to

support its decision with “competent, material and

substantial evidence,” a standard applicable only under

the Administrative Procedures Act. The Board further

accused the circuit court of improperly substituting its

judgment for that of the executive agency. The circuit

court denied the Board’s motion and affirmed its earlier

decision.

Elias filed an application for leave to appeal in this

Court, which we initially denied. In re Parole of Elias,

unpublished order of the Court of Appeals, entered

The Administrative Procedures Act (APA), MCL 24.201 et seq.,

provides specific procedures for the parties and agency to follow in a

“contested case.” MCL 24.271. A “contested case” is defined as “a

proceeding...in which a determination of the legal rights, duties, or

privileges of a named party is required by law to be made by an agency

after an opportunity for an evidentiary hearing.” MCL 24.203(3). The

Board’s decision to grant or deny parole is not a “contested case,”

however, because a prisoner sentenced to a term of years is not entitled

to a “hearing” before the Board’s decision. Hopkins, 237 Mich App at 638.

The scope of judicial review outlined in the APA applies only to contested

cases. MCL 24.301. Only in a contested case does the court determine if

the agency’s decision was “[n]ot supported by competent, material and

substantial evidence on the whole record.” MCL 24.306(1)(d). As the APA

is inapplicable in this case, the circuit court improperly relied on the APA

standard of review.

2011] In re P

AROLE OF

LIAS

537

October 21, 2010 (Docket No. 300113). Elias pursued

her application to the Michigan Supreme Court, which

remanded to this Court for consideration as on leave

granted. In re Parole of Elias, 488 Mich 1034 (2011). On

full review before our Court, we find that the circuit

court exceeded the limits of judicial review appropriate

in parole decision cases. We therefore reverse the circuit

court’s judgment and reinstate the Board’s grant of

parole.

IV. STANDARD OF REVIEW

Judicial review of the Board’s decision to grant

parole is limited to the abuse-of-discretion standard.

Wayne Co Prosecutor v Parole Bd, 210 Mich App 148,

153; 532 NW2d 899 (1995). Either the prosecutor or the

victim of an offense may appeal in the circuit court

when the Board grants a prisoner parole. MCL

791.234(11); Morales v Parole Bd, 260 Mich App 29, 35;

676 NW2d 221 (2003). Under MCR 7.104(D)(5) the

challenging party has the burden to show either that

the Board’s decision was “a clear abuse of discretion” or

was “in violation of the Michigan Constitution, a stat-

ute, an administrative rule, or a written agency regula-

tion.” An abuse of discretion occurs when the trial

court’s decision falls outside the range of reasonable

and principled outcomes. People v Babcock, 469 Mich

247, 269; 666 NW2d 231 (2003).

Importantly, a review-

Previous opinions of this Court described the abuse-of-discretion

standard in parole cases as follows: “An abuse of discretion will generally

be found where an unprejudiced person, considering the facts on which

the decisionmaker acted, would say there is no justification or excuse for

the ruling.” In re Parole of Glover (After Remand), 241 Mich App 127,

129; 614 NW2d 714 (2000). However, the Babcock standard “more

accurately describes the appropriate range of the trial court’s discretion,”

Babcock, 469 Mich at 269, and is appropriate to apply to parole review

cases, see Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809

538 294 M

ICH

507 [Nov

ing court may not substitute its judgment for that of the

Board. Morales, 260 Mich App at 48.

V. THE CIRCUIT COURT IMPROPERLY SUBSTITUTED ITS JUDGMENT

FOR THAT OF THE PAROLE BOARD

The Board did not abuse its discretion or violate the

Constitution or any statute, rule, or regulation by

granting parole to Elias. Elias had a parole-guideline

score of +15 points, placing her in the high-probability-

of-parole-category. Accordingly, the Board was required

to grant parole absent substantial and compelling rea-

sons to depart from that decision. After personally

interviewing Elias and fully reviewing her file, includ-

ing a multitude of reports prepared specifically for the

Board’s consideration, the Board found no substantial

and compelling reason to depart from the parole guide-

lines. This decision fell within the range of principled

outcomes in light of the record evidence.

We first note that the DOC carefully followed the

statutory and regulatory procedures for evaluating

Elias’s probability of parole. Several months before the

Board’s current parole consideration, the DOC evalu-

ated Elias and prepared a PER. As previously discussed,

the PER accurately detailed the abundant documenta-

tion contained Elias’s prison files, and was prepared in

a manner consistent with the procedures outlined in

DOC Policy Directive 06.05.103.

The DOC also adhered to its procedures in conduct-

ing Elias’s COMPAS risk assessment. A DOC staff

member inputted the required data from Elias’s prison

file into the COMPAS software program, which then

calculated Elias’s statistical risk of committing future

(2006) (“While Babcock dealt with a criminal sentencing issue, we prefer

the articulation of the abuse-of-discretion standard in Babcock . . . and,

thus, adopt it as the default abuse-of-discretion standard.”).

2011] In re P

AROLE OF

LIAS

539

assaultive or property crimes. COMPAS assessed Elias

as having a low risk of engaging in violent or recidivist

behavior and specifically described Elias as having a

positive mental-health outlook. In its opinion reversing

the Board’s decision to grant parole, the circuit court

cited the absence of a score on the COMPAS’s “cogni-

tive behavioral” scale, which the court found troubling

in light of the TAP report assessment that Elias would

likely experience cognitive behavioral difficulties on

reentering society. We are unconcerned with this omis-

sion, however, because the evaluator provided a narra-

tive summary based on the instructions accompanying

the scale. That narrative portrayed Elias as lacking the

character traits that lead to criminal behavior.

The DOC also properly prepared a TAP report with

Elias to prepare her for the possibility of release. That

report is more negative than the COMPAS assessment,

indicating that Elias needed to further develop her

social attitude and manage her criminal thoughts. But a

TAP report serves to guide a prisoner on the steps

needed to rehabilitate and earn parole. See The MPRI

Model, p 5. As such, a TAP is a necessarily dynamic

document; it identifies areas in which the prisoner

needs further development and allows the prisoner to

work toward achieving stated goals. When evaluating

Elias’s chance of parole in February 2010, the Board

evaluated a TAP prepared in September 2008. The

Board was not required to treat this 14-month-old

document as accurately summarizing Elias’s current

potential to successfully transition into society and

could assess for itself whether Elias had met the out-

lined goals and was ready for parole.

Consistently with its internal operating procedures,

the DOC also required Elias to participate in AOT while

imprisoned. DOC psychological services staff prepared

540 294 M

ICH

507 [Nov

an AOT termination report documenting Elias’s

progress in that program. More than five years have

now elapsed since Elias completed the AOT. The pros-

ecutor and the circuit court noted that Elias did not

fully meet her therapeutic objectives. Nevertheless, the

report concluded that she displayed “better under-

standing and more effective management of her crimi-

nal behaviors.” Under that goal, Elias made “excellent”

and “good” progress toward meeting various objectives.

Specifically, Elias “[d]emonstrated the ability to clearly

describe any of [her] criminal behaviors in detail,”

“[a]ccepted complete responsibility for [her] criminal

behaviors,” “[d]emonstrated the ability to cope with

group confrontation in a non-defensive, nonthreatening

and appropriate manner,” “[d]emonstrated an institu-

tional record free of misconduct while enrolled in

therapy,” “[d]emonstrated the ability to clearly explain

what led to [her] criminal behavior,” and “[p]repared a

comprehensive plan for managing [her] criminal behav-

ior.” And again, the Board could have, within its discre-

tion, determined that Elias’s overall mental health had

improved in the five years following her completion of

the AOT program.

The prosecutor and the circuit court imply that Elias should have

sought out additional AOT to work toward completely meeting her

therapeutic goals. We doubt that Elias was able to obtain such additional

treatment. As noted in DOC Director’s Office Memorandum 2011-7,

December 13, 2010,

[a]s part of reception processing, prisoners convicted of specifically

identified assaultive offenses were recommended for assaultive

offender programming. Assaultive offender programming also was

recommended for prisoners who have a history of assaultive

behavior even though they were not serving for one of the

specifically identified assaultive offenses. There was only one

program available for these prisoners, which had to be provided by

psychological services staff who also were responsible for providing

psychological assessments and treatment of prisoner mental

2011] In re P

AROLE OF

LIAS

541

Using all the required reports, the Board then calcu-

lated Elias’s parole guidelines score. In doing so, the

Board considered the statutory and regulatory required

factors and assessed specific scores consistent with

DOC Policy Directive 06.05.100A. In fact, it appears

that the Board erroneously treated Elias as having a

prior criminal history. Accordingly, Elias’s stellar score

of +15 points on the parole guidelines likely should

have been even higher. Ultimately, as Elias’s parole-

guideline score placed her in the high-probability-of-

parole category, the Board was required to grant parole

unless it found “substantial and compelling reasons” to

deny.

Michigan courts have yet to define the phrase “sub-

stantial and compelling reasons” when used in the

parole context. Like the parole guidelines, the Michigan

legislative sentencing guidelines afford the sentencing

court discretion to depart from the guidelines recom-

mended minimum sentence range “ ‘if the court has a

substantial and compelling reason for that departure.’ ”

Babcock, 469 Mich at 256, quoting MCL 769.34(3). The

Babcock Court defined a “substantial and compelling

reason” as “an objective and verifiable reason that

keenly or irresistibly grabs our attention; is of consid-

erable worth in deciding the length of a sentence; and

exists only in exceptional cases.” Babcock, 469 Mich at

258 (quotation marks and citation omitted).

Under the parole guidelines, however, the Board “is

not held to a requirement of absolute objectivity.”

Killebrew v Dep’t of Corrections, 237 Mich App 650, 655;

health needs. The need therefore existed for additional evidence-

based programming which would not only meet the needs of the

prisoners recommended for such programming but could be provided

in an effective and efficient manner. [Available at<http://

www.michigan.gov/corrections/documents/2011-7_342069_7.pdf>

(accessed August 26, 2011).]

542 294 M

ICH

507 [Nov

604 NW2d 696 (1999). Rather, the Board must con-

sider “all of the facts and circumstances, including

the prisoner’s mental and social attitude....”MCL

791.233(1)(a). “An evaluation of a prisoner’s mental

and social attitude involves a subjective determina-

tion for which the parole guidelines cannot account.”

Killebrew, 237 Mich App at 655. As the Legislature

has directed the Board to consider certain subjective

factors in making a parole decision, reliance on the

objective analytical process underlying Babcock’s

definition of “substantial and compelling” reasons for

a sentencing departure would be misplaced. The

Board may identify reasons “that keenly or irresist-

ibly grab[] [its] attention” and are “of considerable

worth in deciding” whether it should deny parole to a

prisoner who was otherwise assessed as having a high

chance of parole. See Babcock, 469 Mich at 258

(citation and quotation marks omitted). And if those

substantial and compelling reasons also qualify as

“objective and verifiable,” a reviewing court would be

more apt to affirm the Board’s decision. See Macomb

Co Prosecutor v Osantowski, 488 Mich 952; 790 NW2d

687 (2010) (reinstating the Board’s grant of parole

because it “was based on evaluation of objective

criteria established by [MDOC] policy directives that

were required by statute, and was within the range of

principled outcomes,” and reversing an unpublished

opinion of this Court to the contrary); see also

Johnson, 219 Mich App at 600-601 (holding that

parole was improperly granted when the objective

factors weighed almost exclusively in favor of denial

and the Board appeared to rely solely on the subjec-

tive opinion of one Board member who had inter-

viewed the prisoner).

Rather than affording any meaningful deference to

the Board, the circuit court substituted its determi-

nation that substantial and compelling reasons man-

2011] In re P

AROLE OF

LIAS

543

dated denial of Elias’s parole. In reaching this result,

the circuit court relied excessively on static factors

such as the nature of the sentencing offense and

Elias’s former prison misconduct. As each successive

parole opportunity was considered, the length of time

since Elias’s last prison misconduct citation in-

creased. The DOC specifically intended to give a

potential parolee positive treatment under the guide-

lines for maintaining a clean prison record over an

extended period. Rule 791.7716(3)(c) expressly pro-

vides that a prisoner’s misconduct “over the previous

5 years and during the year immediately before

parole consideration” must be considered in calculat-

ing the prisoner’s parole-guideline score. When the

DOC calculated Elias’s guidelines score in 2009, she

had not been charged with any misconduct within the

preceding five years. She has now spent eight years

free of institutional misconduct. Given the DOC’s

objective policy of minimizing the scoring effect of

stale misconduct charges, we fail to see how the

Board abused its discretion in this regard.

The prosecutor and the circuit court mistakenly

assume that unchangeable factors related to past

events, such as the sentencing offense, must be given

greater consideration when formulating a COMPAS

risk assessment and scoring the parole guidelines.

Nothing in the statutes, regulations, or COMPAS guide-

lines supports that assumption. Rather, the Board must

also look to the prisoner’s rehabilitation and evolution

throughout his or her incarceration. Giving the various

static and dynamic factors similar weight allows the

Board to effectuate both the punitive and rehabilitative

features of the corrections system. As noted by our

Supreme Court in People v Schultz, 435 Mich 517,

531-532; 460 NW2d 505 (1990),

544 294 M

ICH

507 [Nov

[f]our factors may be taken into consideration to determine

the appropriateness of a sentence: rehabilitation, deter-

rence, the protection of society, and punishment....

***

. . . [T]he ultimate goal of sentencing in this state is not

to exact vengeance, but to protect society through just and

certain punishment reasonably calculated to rehabilitate

and thereby “ ‘convert bad citizens into good citi-

zens....’”[Citations omitted.]

Elias’s parole-guideline score took into account the

nature of the sentencing offense. In fact, the only

negative score in Elias’s parole guidelines arose from

consideration of that offense. We further note that the

sentencing court indisputably considered the heinous-

ness of the sentencing offense when imposing the

minimum and maximum terms of imprisonment.

The

sentencing court heard the evidence against Elias and

was well informed regarding her offender and offense

characteristics before it imposed sentence. The 20-year

Elias was sentenced in 1985 under the judicial sentencing guidelines.

As noted in People v Hegwood, 465 Mich 432, 438; 636 NW2d 127 (2001),

[f]rom 1983 through 1998, Michigan’s courts employed guidelines

crafted by this Court and promulgated by administrative order.

The effort reflected this Court’s attempt to respond to unwar-

ranted disparities in sentencing practices between judges. Thus,

the very premise of the guidelines is that judicial discretion will be

restricted to a certain degree.

This Court’s sentencing guidelines were “mandatory” only in

the sense that the sentencing court was obliged to follow the

procedure of “scoring” a case on the basis of the circumstances of

the offense and the offender, and articulate the basis for any

departure from the recommended sentence range yielded by this

scoring. However, because the recommended ranges found in the

judicial guidelines were not the product of legislative action, a

sentencing judge was not necessarily obliged to impose a sentence

within those ranges. [Citations omitted.]

2011] In re P

AROLE OF

LIAS

545

minimum sentence reflected the seriousness of the

crime, and that time has since been served. As indicated

by the plain language of the parole statutes, Elias has

served her minimum term and therefore comes within

the jurisdiction of the Board. MCL 791.233(1)(b); MCL

791.234(1).

We also disagree with the circuit court’s conclusion

that the current Board panel abused its discretion

because it reached a different result based on the

same evidence placed before previous panels. As

already noted, the Board could have, within its dis-

cretion, determined that Elias had improved her

overall outlook since the 2006 AOT report and the

2008 COMPAS and TAP reports were prepared. More-

over, we do not find the presence of conflicting

information in the reports to be dispositive. In other

contexts, this Court has repeatedly determined that

there is no abuse of discretion when a court or a

fact-finder is faced with conflicting information and

makes a reasonable and principled decision regarding

which side to believe. See, e.g., People v Wybrecht, 222

Mich App 160, 173; 564 NW2d 903 (1997) (“[A]

sentence is not invalid because probation agents and

a defendant’s psychologists use undisputed facts to

draw conflicting conclusions about the defendant’s

character.”). The current Parole Board panel read the

conflicting statements regarding Elias’s acceptance

or lack of acceptance of responsibility for killing

Barczynski. A member of the current panel also

interviewed Elias and was able to update those re-

ports. The Board’s determination that Elias had

accepted responsibility for her acts is supported by

evidence in the record, and the Board did not abuse

its discretion by granting parole based on that evi-

dence.

546 294 M

ICH

507 [Nov

Moreover, the circuit court unreasonably and im-

properly assumed that the Board ignored the letters

from the victim’s family members. The Board must

provide a written explanation for a parole decision that

departs from the guidelines recommendation, and that

explanation must have sufficient detail to allow appel-

late review. Glover, 460 Mich at 519, 523; MCL

791.233e(6); Mich Admin Code, R 791.7716(5). How-

ever, nothing in the statutes, regulations, or caselaw

requires the Board to specifically cite the documents it

reviewed in rendering its decision. In re Parole of

Scholtz, 231 Mich App 104, 113; 585 NW2d 352 (1998)

(holding in regard to a similar written-explanation

provision in MCL 791.235[12] that “[t]he statute does

not establish the degree of specificity with which the

[Board] must articulate its reasons” but “[t]he expla-

nation must, however, contain sufficient detail to facili-

tate this Court’s review of the parole decision for an

abuse of discretion”). The family letters were part of the

record placed before the Board, and we have every

reason to believe that the Board read and considered

these letters before rendering its parole decision.

Ultimately, Elias was deemed to be a low risk for

future violence or criminal behavior. Although her

therapy reports were not perfect, she admitted respon-

sibility for her criminal actions and learned to recognize

and manage her criminal behaviors. Elias has the

financial and emotional support of her family and

husband to assist her reentry into society. Further, she

is 48 years old and has spent the last 26 years in prison.

These factors tend to reinforce the conclusion that Elias

would not become a menace to society. The Board was

within its discretion to grant parole consistently with

Elias’s parole-guideline score and based on its analysis

of the objective factors outlined in the statutes, regula-

tions, and agency directives. The circuit court improp-

2011] In re P

AROLE OF

LIAS

547

erly substituted its judgment regarding the record

evidence for that of the legislatively designated execu-

tive agency.

Accordingly, we reverse the decision of the circuit

court and reinstate the order of the Parole Board

granting Elias parole.

ARKEY

,P.J., and S

AAD

, J., concurred with G

LEICHER

548 294 M

ICH

507 [Nov

In re PAROLE OF HAEGER

Docket No. 297099. Submitted August 10, 2011, at Detroit. Decided

November 1, 2011, at 9:05 a.m.

The Alpena County Prosecutor applied in the Alpena Circuit Court

for leave to appeal the Parole Board’s grant of parole to Raymond

H. Haeger, a prisoner under the jurisdiction of the Department of

Corrections. The Parole Board intervened. After granting the

prosecutor’s application, the court, Michael G. Mack, J., initially

remanded the matter to the board for an explanation of its decision

pursuant to MCR 7.104(D)(7). On remand, the board affirmed its

decision to grant parole, and the prosecutor renewed his applica-

tion for leave to appeal. The court granted the application and

reversed the board’s decision pursuant to MCR 7.104(D)(8), ruling

that the board had abused its discretion by granting parole despite

the fact that Haeger’s assessed probability for parole had declined

since the board’s previous considerations, which had resulted in

denials of parole. The Court of Appeals denied Haeger leave to

appeal, and the Supreme Court, in lieu of granting Haeger’s

application for leave to appeal, remanded the matter to the Court

of Appeals for consideration as on leave granted. 488 Mich 1033

(2011).

The Court of Appeals held:

1. The circuit court’s decision to reverse the Parole Board’s

grant of parole did not violate the separation-of-powers doctrine.

The circuit court did not order the board to deny Haeger parole;

rather, it ruled that the board’s decision was inconsistent with the

objective factors outlined in the statutes and regulations and the

facts on the record. This action was proper under MCR 7.104(D),

which allows a circuit court to reverse or remand a parole decision

if an appellant proves that the decision was in violation of the

Michigan Constitution, a statute, an administrative rule, or cer-

tain written agency regulations or was otherwise a clear abuse of

discretion.

2. The circuit court did not violate Haeger’s right to due

process by failing to provide him notice and an adequate opportu-

nity to be heard in connection with the prosecutor’s appeal of the

Parole Board’s decision. A prisoner enjoys no constitutional or

2011] In re P

AROLE OF

AEGER

549

inherent right to be conditionally released from a validly imposed

sentence. Further, although a parolee has a right to notice and the

opportunity to be heard before parole is revoked, a potential

parolee who remains in prison has no liberty for the Due Process

Clause to protect. In any event, the record indicated that the

prosecutor did properly notify Haeger of his intent to appeal the

board’s decision, that Haeger moved to dismiss the prosecutor’s

application for leave to appeal and filed two briefs in the circuit

court supporting the board’s decision, and that Haeger never

requested a formal hearing.

3. The circuit court was correct to reverse the Parole Board’s

decision to grant Haeger parole, although it did so on the wrong

basis. Absent a complete record and an updated psychological

evaluation, it was impossible for the circuit court to have discerned

whether the board committed a clear abuse of discretion in

granting parole. However, the fact that the record was incomplete

indicated that the Parole Board violated its duty to consider all

relevant facts and circumstances in determining whether parole

was in the best interests of society and public safety as required by

Mich Admin Code, R 791.7715. Specifically, there were no case

summary reports of Parole Board interviews, no indication that a

transition accountability plan for Haeger had been developed

pursuant to Rule 791.7715(2)(c)(iii), and no indication that he had

received the psychological or psychiatric evaluation required for

assaultive sexual offenders under Rule 791.7715(5)(b). The psy-

chological evaluations Haeger received upon his incarceration in

1992 and in preparation for appeal in 1993 were of little relevance

in determining whether his parole was in the best interests of

society and public safety.

4. The board did not abuse its discretion by relying on a

statement in a report that contained an internal inconsistency. It

is not an abuse of discretion when a fact-finder faced with

conflicting information makes a reasonable and principled deci-

sion regarding which side to believe. Moreover, the statement in

question was supported by evidence elsewhere in the record.

Further, the circuit court should not have disregarded the decision

of the current Parole Board panel simply because it conflicted with

the decisions of previous panels. It is not an abuse of discretion for

two fact-finders to reach different conclusions from the complex

and potentially conflicting information within a prisoner’s record.

Finally, the board did not give undue weight to the favorable

aspects of the various scales used to assess Haeger’s risk to the

public; rather, it properly recognized that the circumstances of

550 294 M

ICH

549 [Nov

Haeger’s sentencing offense, which he could do nothing to change,

consistently reduced his assessment scores.

5. The circuit court’s decision to reverse the grant of parole

was not fatal to Haeger’s chances for parole. After a thorough

review as required by the applicable statutes, regulations, and

department policy directives, the Parole Board may use its discre-

tion to either grant or deny parole to Haeger if it considers all the

necessary information and adequately and accurately documents

these steps in the record.

Affirmed.

AROLE —

ONSTITUTIONAL

AW —

ROCESS

A prisoner enjoys no constitutional or inherent right to be condi-

tionally released from a validly imposed sentence; although a

parolee has a right to notice and the opportunity to be heard before

parole is revoked, a potential parolee who remains in prison has no

liberty for the Due Process Clause to protect.

Raymond H. Haeger in propria persona.

Before: M

ARKEY

,P.J., and S

AAD

and G

LEICHER

,JJ.

LEICHER

, J. The Michigan Parole Board (the Board)

granted Raymond Harold Haeger parole after he had

served approximately 17 years of a 15- to 30-year

sentence. The Alpena County Prosecutor objected to

Haeger’s release and sought leave in the circuit court to

appeal the Board’s parole decision. The circuit court

ruled that the Board had abused its discretion by

granting parole despite that Haeger’s probability for

parole had actually declined since the Board’s last

consideration. Accordingly, the circuit court reversed

the Board’s decision.

We affirm the circuit court’s reversal of the Board’s

decision but on different grounds. The Board failed to

This Court originally denied Haeger’s delayed application for leave to

appeal, People v Haeger, unpublished order of the Court of Appeals, entered

July 26, 2010 (Docket No. 297099), but the Supreme Court remanded for

review as on leave granted, People v Haeger, 488 Mich 1033 (2011).

2011] In re P

AROLE OF

AEGER

551

comply with certain regulatory provisions before reach-

ing its parole decision. Specifically, Mich Admin Code, R

791.7715(5)(b) mandates that a prisoner with “a history

of...[p]redatory or assaultive sexual offenses” un-

dergo a “psychological or psychiatric evaluation before

the release decision is made....” There is no record

indication that Haeger received such an evaluation

after 1993. It is also unclear whether the Board consid-

ered Haeger’s “[d]evelopment of a suitable and realistic

parole plan,” as required by Mich Admin Code, R

791.7715(2)(c)(iii), because Haeger’s transition ac-

countability plan (TAP) does not appear in the record.

We are further concerned that Parole Board Member

Charles Brown based his decision, in part, on Haeger’s

completion of additional sexual offender therapy (SOT)

in 2009 despite that no documentation of that therapy

exists in Haeger’s file. In addition, “holes” in the record

that the Board failed to remedy persist even after the

circuit court ordered the Board to supplement Haeger’s

file. Because the Board violated its regulatory duty to

defer its decision until Haeger received a psychological

evaluation and its duty to consider Haeger’s develop-

ment of a parole plan, and because the Board’s failure to

adequately and timely comply with the circuit court’s

remand order resulted in an incomplete record, we

affirm the circuit court’s decision to reverse the Board’s

grant of parole to Haeger.

I. THE PAROLE PROCESS IN MICHIGAN

The Parole Board, consisting of 10 members, is

located within the Michigan Department of Corrections

(DOC). MCL 791.231a(1). Prisoners come under the

Board’s jurisdiction after serving their minimum sen-

tence, adjusted for any good time or disciplinary credits.

MCL 791.233(1)(b) through (d); MCL 791.234(1)

552 294 M

ICH

549 [Nov

through (5). For each potential parolee, a DOC staff

member must evaluate the prisoner, ensure the complete-

ness of the prisoner’s file, and prepare a summary “Parole

Eligibility Report” (PER) to advise the Board. See In re

Parole of Elias, 294 Mich App 507, 511; 811 NW2d 541

(2011), citing DOC Policy Directive 06.05.103, p 1,

and

MCL 791.235(7). Board staff members use this com-

piled information to score the prisoner’s parole guide-

lines. DOC Policy Directive 06.05.100, ¶ D, p 1.

“Statutorily mandated parole guidelines form the

backbone of the parole-decision process.” Elias, 294

Mich App at 511. The guidelines “ ‘attempt to quan-

tify’ ” various factors relevant to the parole decision in

order “ ‘to inject more objectivity and uniformity into’ ”

the parole process. Id., quoting In re Parole of Johnson,

219 Mich App 595, 599; 556 NW2d 899 (1996). The

Legislature directed the DOC to refine the statutory

guidelines by developing more detailed regulations.

MCL 791.233e(1). “Pursuant to this legislative man-

date, the DOC promulgated regulations outlining cer-

tain factors for the Board to consider when making a

parole decision[.]” Elias, 294 Mich App at 513. The

Board must determine “whether parole is in the best

interests of society and public safety” considering the

prisoner’s past and current criminal behavior, “[i]nsti-

tutional adjustment,” “[r]eadiness for release,” “per-

sonal history and growth,” and “physical and mental

health.” Mich Admin Code, R 791.7715(2). Moreover,

when a prisoner has a history of “predatory or assault-

ive sexual offenses,” the prisoner must undergo a

“psychological or psychiatric evaluation before the re-

lease decision is made....” Mich Admin Code, R

791.7715(5).

DOC policy directives are available at <http://www.michigan.gov/

corrections/0,1607,7-119-1441_44369--,00.html> (accessed September 8,

2011).

2011] In re P

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AEGER

553

The DOC regulations further direct the Board to con-

sider “all relevant facts and circumstances, including the

prisoner’s probability of parole as determined by the

parole guidelines....”Mich Admin Code, R 791.7715(1).

The guidelines, in turn, require that scoring be based on

the prisoner’s time served as well as the “aggravating and

mitigating circumstances” of the sentencing offense, the

“prisoner’s prior criminal record,” the number of major

misconducts committed by the prisoner within the pre-

ceding one- and five-year periods, the prisoner’s score on

“risk screening scales,” the prisoner’s age, the prisoner’s

performance in recommended institutional programs, and

“[t]he prisoner’s mental health” status. Mich Admin

Code, R 791.7716(3).

The guideline factors are separated

into eight sections, each with a list of subfactors to be

scored and instructions on the point value to be assigned.

Elias, 294 Mich App at 517, citing DOC Policy Directive

06.05.100, Attachment A, pp 1-9. The aggregated score is

“ ‘used to fix a probability of parole determination for each

individual on the basis of a guidelines schedule. Prisoners

are categorized under the guidelines as having a high,

average, or low probability of parole.’ ” Elias, 294 Mich

App at 518, quoting Johnson, 219 Mich App at 599.

A prisoner being considered for parole may also

undergo an informal and nonadversarial “interview

conducted by one or more Board members assigned to

the prisoner’s panel.” Elias, 294 Mich App at 518, citing

DOC Policy Directive 06.05.104, ¶ R, p 4. Following the

parole interview, a “Case Summary Report” is generally

created for the Board’s review.

See Elias, 294 Mich App

at 519.

The parole-guideline factors are quoted in full in Elias, 294 Mich App

at 515-517.

There are no case summary reports in the file submitted to this Court.

554 294 M

ICH

549 [Nov

As described in Elias, the DOC recently implemented

the Michigan Prisoner ReEntry Initiative (MPRI),

which is “designed to promote public safety and reduce

the likelihood of parolee recidivism” and to “ ‘improve[]

decision making at critical decision points,’ such as

when the Board is considering whether to release a

prisoner from incarceration on parole.” Id., quoting

DOC Policy Directive 03.02.100, ¶ C p 1. Under the

MPRI, the DOC and the Board are now required to

prepare and consider additional reports, in particular

the transition accountability plan TAP.

The TAP “suc-

cinctly describe[s]...exactly what is expected for of-

fender success.” The MPRI Model: Policy Statements

and Recommendations, Michigan Prisoner ReEntry Ini-

tiative, January 2006, p 5.

A DOC staff member “must

formulate a TAP with each prisoner, mostly to assist the

prisoner’s reentry into society, but also to assist the

Board in rendering its parole decision.” Elias, 294 Mich

App at 519-520. The TAP analyzes the prisoner’s risk

factors, sets goals to decrease those risks, and estab-

lishes a plan for the prisoner to reach his or her goals.

Id. Under the MPRI, the Board is also now required to

conduct a “correctional offender management profiling

for alternative sanctions” (COMPAS) evaluation. The

COMPAS program

is a comprehensive risk and needs assessment system,

which takes into account both static information (such as

the prisoner’s past criminal offenses) and dynamic data

(such as the prisoner’s evolving attitudes and mental

condition)....

[A] case manager considers various characteristics of

the offender and the offense and inputs scores into the

As noted, there is no TAP in the file submitted to this Court.

This document is available at <http://www.michigan.gov/documents/

THE_MPRI_MODEL_1005_140262_7.pdf> (accessed September 8,

2011).

2011] In re P

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AEGER

555

COMPAS computer software program. The software gen-

erates a score ranking the offender’s statistical likelihood

of violence, recidivism, success on parole, and other factors.

[Id. at 520-521.]

Although “matters of parole lie solely within the

broad discretion of the [Board],” Jones v Dep’t of

Corrections, 468 Mich 646, 652; 664 NW2d 717 (2003);

see also Hopkins v Parole Bd, 237 Mich App 629, 637;

604 NW2d 686 (1999); MCL 791.234(11), that discre-

tion is clearly restricted by legislative limitations. “In

addition to creating the framework shaping the regula-

tory parole guidelines,” Elias, 294 Mich App at 522, the

Legislature dictates that “ ‘[a] prisoner shall not be

given liberty on parole until the board has reasonable

assurance, after consideration of all of the facts and

circumstances, including the prisoner’s mental and

social attitude, that the prisoner will not become a

menace to society or to the public safety,’ ” Johnson,

219 Mich App at 598, quoting MCL 791.233(1)(a).

Moreover, “[o]nce the Board has rendered its decision,

it must issue in writing ‘a sufficient explanation for its

decision’ to allow ‘meaningful appellate review,’ Glover

v Parole Bd, 460 Mich 511, 519, 523; 596 NW2d 598

(1999), and to inform the prisoner of ‘specific recom-

mendations for corrective action’ if necessary ‘to facili-

tate release,’ MCL 791.235(12).” Elias, 294 Mich App at

522-523.

II. PRIOR AND CURRENT PAROLE CONSIDERATIONS

With this framework in mind, we now consider the

history of Haeger’s imprisonment and the progression

of his parole reviews. In 1992, Haeger pleaded nolo

contendere to breaking and entering an occupied dwell-

ing with the intent to commit a felony inside, MCL

750.110a(2)(b), and first-degree criminal sexual con-

556 294 M

ICH

549 [Nov

duct committed during a felony, MCL 750.520b(1)(c).

Haeger was sentenced to concurrent terms of 15 to 30

years’ imprisonment for each offense. Haeger’s convic-

tions arose from the forcible rape of his cousin in the

early morning hours of February 2, 1992. After consum-

ing a large amount of alcohol at an Alpena bar, Haeger

began driving toward his home in Hillman. At approxi-

mately 3:00 a.m., Haeger passed the home of his cousin

and decided to stop. Haeger later told police that he had

used a pair of his girlfriend’s underwear to mask his

face. He then entered his cousin’s home by removing a

basement window. Once inside, Haeger went into the

kitchen and took a seven-inch knife from a drawer.

Haeger made a noise, waking his cousin, who had fallen

asleep on the couch in the adjacent living room. The

victim entered the kitchen and found a masked man

holding a knife crouched down next to the refrigerator.

Haeger, armed with the knife, lunged at the victim and

the two struggled. Ultimately, Haeger pinned the victim

facedown on the ground and forcibly penetrated her

vagina with his penis. When Haeger left, he threatened

to return and kill the victim if she told anyone what had

happened. The victim later told police that she recog-

nized the voice of her assailant as belonging to Haeger.

Haeger admitted to his parents in front of police officers

that he had broken into the victim’s home and raped

her. The officers then transported Haeger to the Alpena

Police Department, where he gave tape-recorded and

written statements describing the offense in great de-

tail.

Upon Haeger’s imprisonment, the DOC referred him

for a psychological evaluation. On October 6, 1992, the

evaluating psychologist noted that Haeger “was polite

and cooperative, admitting to guilt of instant offense.”

After conducting various diagnostic tests, the psycholo-

gist noted that Haeger’s evaluation “reflects an imma-

2011] In re P

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AEGER

557

ture, impulsive, alcohol abusive young male with a

self-centered attitude” who “seems to have had a deep

feeling of psychosexual inadequacy coupled with alcohol

abuse that infringed on his judgment.”

In preparation for Haeger’s appeal of his convictions,

appellate defense counsel procured another psychologi-

cal evaluation of his client. On April 9, 1993, Dr.

Michael Abramsky submitted a report opining that

Haeger should have received a much shorter sentence

for his offense. Abramsky described Haeger as “a rather

shy, seclusive [sic] young man[.]” Haeger told Abram-

sky that he had “blacked out” and did not remember

attacking his cousin. Haeger accused the police of

feeding him the details of the crime. Abramsky com-

pleted a “Hare Psychopathy Check List,” which “mea-

sures tendencies towards chronic criminality.” From

that test, Abramsky noted “a gross absence of psycho-

pathic indicators.” Specifically, Abramsky noted that Hae-

ger “show[ed] no history of pathological lying...[or] of

being callous or having a lack of empathy.” Moreover,

Haeger’s “behavior has always been well controlled and

there is no history of a loss of behavioral control.” Based

on the Hare evaluation, Abramsky believed Haeger had “a

low probability” of recidivism and “chronic criminality.”

Abramsky also evaluated Haeger under the Minne-

sota Multiphasic Personality Inventory (MMPI),

which

Abramsky concluded did not show a patter[n] compat-

ible with psychopathic deviance.” Rather, Haeger’s

scores revealed an individual with “learning disabilities

and attention deficit disorder.” Abramsky administered

The MMPI tests “configurations of personality traits in normal

persons and...the personality patterns occurring in various types of

mental illness.” Random House Dictionary of the English Language:

Second Edition Unabridged (1987).

558 294 M

ICH

549 [Nov

a Rorschach test to measure Haeger’s “more uncon-

scious processes” and determined that Haeger did not

appear unusually aggressive or preoccupied with sex.

Haeger was admitted into a sexual offender therapy

(SOT) program in 2000. In order to be admitted into the

program, Haeger had to “[a]ccept[] responsibility for

his sex crime” and “[r]ecognize[] he has a problem and

needs to change.” Haeger was prematurely discharged

from SOT on December 14, 2000, when he was trans-

ferred to a lower security facility. However, he com-

pleted the “Relapse Prevention” portion of the therapy.

The treating psychologist indicated that Haeger’s over-

all progress was rated 7 on a 10-point scale, indicating

“good” performance. Haeger needed a score of 9 to be

considered as having achieved the goals of therapy.

Haeger scored 7 points for each of the following thera-

peutic goals:

a. Develop a clear understanding of his responsibility for

setting up and committing his sex offense.

b. Examine his offense cycle, deviancy, thinking, beliefs,

feelings, self-concept and behavior that led to his sexual

offense.

c. Develop and demonstrate victim empathy.

d. To honestly self-disclose to the group about his deviant

sexual behavior.

e. Examine his sexuality, morals, values, social and sexual

relationship.

f. Develop a practical relapse prevention plan.

g. Learn self-control skills to shut down his deviant

arousal pattern.

The treating psychologist concluded that Haeger “has

made a positive effort to examine himself in a reflective

manner. He has achieved a good understanding of his

responsibility in the offense, offense cycle, victim em-

2011] In re P

AROLE OF

AEGER

559

pathy, has self-disclosed, developed a plan to prevent

relapse and seems better able to shut down deviant

arousal pattern.”

Haeger began working in the prison’s food service

department in 2001. Haeger’s supervisors consistently

gave him excellent reviews. Haeger was even com-

mended for voluntarily transferring to a higher secu-

rity, neighboring facility so he could continue to work

while the lower security facility’s kitchen was being

remodeled.

Because of good-time credits, Haeger first became

eligible for parole in 2004, after serving approximately

12 years of his original 15-year minimum sentence. In

preparation for the Board’s first parole review, a DOC

staff member prepared a PER. Consistently with regu-

latory requirements, Haeger’s 2004 PER noted that he

had no major misconduct tickets, “interact[ed] well

with staff and peers,” and “present[ed] no management

problems.” The report further indicated that Haeger

“received above average work evaluations” and was on

a waiting list to attend a job-seeking-skills class. Haeger

participated in Alcoholics Anonymous from 1992

through 1994 and completed a “Substance Abuse Phase

II” program in 2002. The PER noted that Haeger had

completed SOT on December 14, 2000. Overall, Haeger

had “completed all...recommended programs” and

“at least

of all program reports [were] above aver-

age.”

Using Haeger’s file and PER, the Board then calcu-

lated Haeger’s parole guidelines score. Under the parole

guidelines, a prisoner is assigned positive or negative

points for variables in eight categories. These points are

aggregated to reach a “Final Parole Guidelines Score”

that determines whether a prisoner’s probability of

parole is high, average, or low. See DOC Policy Directive

560 294 M

ICH

549 [Nov

06.05.100, Attachment A. At that time, Haeger received

a final score of +6 points, placing him in the “high

probability of parole” category.

The PER, parole guide-

lines, and Haeger’s prison file were then sent to a

three-member panel of the Board to render a parole

decision. The Board determined that there were sub-

stantial and compelling reasons

to deviate from the

parole guidelines and deny parole: “During interview

[Haeger] failed to convince [the Board] that he has

gained significant insight into the cause of his deviant

behavior. [Haeger] stated that he was young and imma-

ture and unwilling to deal with stress and blew up.” The

Board recommended that Haeger continue to earn

“positive work reports” and program reports as well as

“good block or staff reports.” The Board further recom-

mended that Haeger “provide additional demonstration

of positive prison behavior.”

The Board again denied Haeger parole on July 13,

2005. Haeger continued to score +6 points on the

parole guidelines, but the panel noted that Haeger

“has not demonstrated enough insight into his crime,

[Haeger] showed little or no empathy for the victim,

which indicates that [Haeger] has not gain[ed]

A score greater than +3 points corresponds to a high probability of

parole, between –13 and +3 is an average probability, and less than –13

is low. See DOC Policy Directive 06.05.100, Attachment A, p 10. Haeger

was assessed –1 point for each of his active sentence variables, which

reflected his use of a weapon, “threat of force” or injury, “violence or

cruelty beyond that necessary to commit” the offense, and commission of

a sexual offense. Haeger was assessed +1 point on his prior criminal

record variables, +8 points on his institutional conduct variables, and –5

points on his mental health variables, reflecting that he had committed a

sexual assault stemming from a “compulsive, deviant, or psychotic

mental state.” See Mich Admin Code, R 791.7716(3)(g)(ii). Haeger

received +1 point each for his age, statistical risk, and programming

variables.

See Elias, 294 Mich App at 522, citing MCL 791.233e(6) and Mich

Admin Code, R 791.7716(5).

2011] In re P

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AEGER

561

enough knowledge about his deviant behavior which

was a brutal rape on his victim.” The Board limited

its recommended corrective actions to earning posi-

tive program reports and providing “additional dem-

onstration of positive prison behavior.”

On June 27, 2006, the Board denied Haeger parole a

third time. Haeger’s parole-guideline score had in-

creased to +7 points because he was assigned an

additional point for his age variable. Moreover, the PER

prepared for the Board’s review indicated that Haeger

had an above average work record while imprisoned and

received excellent reports from the cellblock guards. As

its substantial and compelling reasons for denying

parole, the panel noted the following: “[Haeger] mini-

mizes his behavior based on his being drunk. This was

a very d[e]liberate, planned rape. [Haeger] laid in

hidding [sic]. Used a mask. The [victim] was his cousin.

He presents a belief that his victim is fine and didn’t

suffer any injury. No insight or remorse.” The Board

recommended that Haeger “demonstrate responsible

behavior by earning positive” program reports and “by

avoiding” misconduct citations. The Board further rec-

ommended that Haeger participate in DOC-sanctioned

activities, “enter into or continually involve [him]self in

substance abuse programming,” and “identify and de-

velop community resources to address special needs

identified through group therapy.”

On June 21, 2008, the DOC conducted a COMPAS risk

assessment of Haeger. That assessment indicated that

Haeger was a low risk for violence, recidivism, and future

substance abuse and could likely secure employment,

maintain housing, and manage his finances once released.

On the COMPAS Cognitive Behavioral/Psychological

scale, Haeger scored 2 points, indicating that he was

unlikely to “blam[e] others, mak[e] excuses or mini-

562 294 M

ICH

549 [Nov

mize[e] the seriousness of [his] offense” and was also

“unlikely to lead a high risk lifestyle or make impulsive

decisions.” However, the narrative statement accompany-

ing this scale, which concludes that Haeger has a “likely

criminal personality,” was inconsistent with the assigned

score. We now know that this inconsistency resulted from

a computer software error. In its motion for reconsidera-

tion following the circuit court’s reversal of the Board’s

2009 grant of parole, the Board finally presented an

affidavit from a DOC Department Specialist, Teresa

Chandler. Chandler reviewed Haeger’s COMPAS report

and noted that the criminal personality scale is not a

factor in considering the cognitive behavioral scale and

was erroneously included on the report.

The Board denied parole a fourth time on August 4,

2008. The panel indicated, “In spite of the completion

of recommended [SOT], [Haeger] lacks the necessary

insight into his deviant behavior. [Haeger] is still

considered a risk to the general public safety.” At that

time, the Board continued Haeger’s sentence for a

24-month period before reconsidering parole. The

Board again recommended that Haeger “demonstrate

responsible behavior by earning positive” program

reports and “good block or staff reports of conduct”

and “by avoiding...misconduct citations.” The

Board also continued to recommend that Haeger

“enter into or continually involve [him]self in sub-

stance abuse programming.”

On November 5, 2008, Haeger committed his first

and only major misconduct while imprisoned. Haeger

pleaded guilty at an administrative hearing of possess-

ing dangerous contraband. Specifically, guards found

within Haeger’s cell various metal objects, which Hae-

ger claimed to use for “fix[ing] electronic devices.” As a

2011] In re P

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AEGER

563

result of this misconduct, Haeger was temporarily

placed in a higher security level and forfeited 90 days of

good-time credit.

On February 11, 2009, Haeger was evaluated under

the Vermont Assessment of Sex Offender Risk (VASOR)

scale.

The [VASOR] is a risk assessment scale for adult male

sex offenders age 18 and older. It was originally designed to

assist probation and parole officers in making placement

and supervision decisions. Because the VASOR does not

provide a comprehensive survey of all factors relevant to

sexual offending, it is best used as a decision aid along with

professional judgement [sic] and other appropriate tools.

Although reliability and validity studies are encouraging, it

still should be considered an experimental instrument.

***

The VASOR is composed of two scales, a 13-item reof-

fense risk scale and a 6-item violence scale. The reoffense

risk scale is designed for assessing the likelihood of sexual

recidivism. The violence scale is designed for assessing the

nature of an individual’s violence history and offense

severity. The interaction of these variables, reoffense risk

and violence, are considered important factors for deter-

mining an individual’s overall risk level.

***

The scoring process ideally should include an interview

with the individual, in addition to carefully reviewing

correctional case file information.

Scores on the two VASOR scales are plotted on a scoring

grid where their intersection falls into one of three risk

categories; low, moderate, or high. These risk categories

can be used to inform placement and supervision decisions.

Offenders who score in the “low” range (i.e., low reoffense

risk score and low violence score) are generally considered

appropriate for community supervision and treatment.

564 294 M

ICH

549 [Nov

Offenders who score in the “moderate” range may or may

not be considered appropriate for community placement.

Offenders who score in the “high” range (i.e., high reof-

fense risk score and/or high violence score) are generally

considered inappropriate for community supervision and

treatment. For public protection purposes, incarceration is

generally recommended for offenders who score in the

“high” range. [McGrath & Hoke, Vermont Assessment of

Sex Offender Risk Manual (Research ed, 2001), p 1 (cita-

tions omitted).]

[

]

Notably, VASOR is “designed to be scored easily by

probation and parole officers and correctional case-

workers.” Id. at 2. A psychologist need not perform a

prisoner’s evaluation under this test.

On the VASOR reoffense-risk scale, Haeger received

10 points for the use of a potentially deadly weapon, 5

points for committing a sexual offense against an ac-

quaintance, 5 points because his alcohol abuse had

caused serious life disruptions and 3 points because his

“drug” use had caused some legal and social problems.

With a total reoffense-risk score of 23 points, Haeger

was considered a low risk for reoffense. On the “vio-

lence scale,” Haeger received a score of 30 points for the

use of a potentially deadly weapon during the commis-

sion of a sexual assault, 10 points for committing

penile-vaginal penetration, and 10 points for causing

injury not requiring formal medical treatment. With a

total “violence score” of 50 points, Haeger was placed in

the high “violence level.” Considered together, Haeger

was given a high overall risk classification on the

VASOR assessment.

This manual is available at <http://www.csom.org/pubs/VASOR.pdf>

(accessed September 8, 2011).

There is no indication in the record that Haeger ever abused any

substance other than alcohol.

2011] In re P

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AEGER

565

On April 6, 2009, the DOC prepared an updated PER

for the Board’s consideration, which included Haeger’s

2008 major misconduct conviction. The PER indicated

that Haeger’s security level had been increased from

Level I to Level II as a result. The PER described

Haeger’s work performance as adequate but no longer

included a commentary on his performance. The PER

noted that Haeger completed technical career counsel-

ing in 2008, substance abuse counseling in 2002, Alco-

holics Anonymous in 1994, and SOT in 2000.

On April 21, 2009, the DOC prepared an “Offender

Supervision Summary Report” and scored Haeger’s

parole guidelines. The summary report noted that Hae-

ger posed a “middle to potential high” assaultive risk

and a low risk for property crimes. The DOC scored

Haeger’s parole guidelines as a long-term offender.

Haeger received a weighted score of –1 point for his

active sentence variables and +1 point for prior crimi-

nal record variables. While Haeger had previously re-

ceived favorable scores on the institutional conduct

variables, his 2008 major misconduct reduced this sec-

tion score to zero points. The DOC noted that Haeger’s

placement in the risk categories for assaultive and

property crimes required a score of +1 point for the

statistical risk variables. Haeger received a score of +2

points on the age scale, reflecting that Haeger was less

likely to engage in further criminal activity given his

more mature age. Haeger had received at least one

adequate report and no inadequate reports from recom-

mended prison programs, which also equated with a

score of +2 points. Because Haeger had committed a

sexual assault, he was given –5 points under the

mental-health variables. Because of his recent major

misconduct, Haeger’s overall parole-guideline score was

reduced to zero points, placing him, for the first time, in

the “average probability of parole” category.

566 294 M

ICH

549 [Nov

On June 26, 2009, two members of the Board panel

voted to grant Haeger parole, citing Haeger’s accep-

tance of responsibility for his past offenses, “satisfac-

tory block reports,” adequate involvement in work

assignments, completion of vocational counseling,

completion of substance abuse programming, and main-

tenance of family and community support while in

prison. The Board noted, however, that Haeger’s parole

was “contingent upon the successful completion of

MPRI InReach Phase.”

We presume that the Board’s reference to the “In-

Reach Phase” means completion of “in-reach program-

ming [provided] to prisoners eligible for parole.” DOC

Policy Directive 03.02.101, ¶ A. In order to receive

“in-reach programming,” a prisoner must be trans-

ferred to a facility that provides such services. Id.,¶E.

Haeger is currently housed in the Cooper Street Cor-

rectional Facility and was previously housed in the

Pugsley and Ryan Correctional Facilities, which are all

designated MPRI “in-reach facilities.” Id., Attachment

A. The record does not identify the type of services

provided to Haeger. However, a September 30, 2009

“referral” indicates that Haeger had completed “pro-

gramming.”

III. CIRCUIT COURT REVIEW OF THE PAROLE BOARD’S DECISION

The Alpena County Prosecutor appealed the Board’s

grant of parole in the circuit court. The circuit court

initially determined that the Board had not provided

sufficient information regarding its decision to grant

parole and, therefore, the court was unable to ad-

equately review the Board’s decision. On September 1,

2009, the court remanded the matter to the Board “for

reconsideration and, if necessary, a more complete ex-

planation of why it is convinced Mr. Haeger ‘will not

2011] In re P

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AEGER

567

become a menace to society or to the public safety.’ ”

The Board contends that it reconsidered the grant of

parole and simply reaffirmed its decision. Accordingly,

the Board issued a new decision ordering Haeger’s

release on parole. The Board did not provide any

additional support for its decision at that time.

The prosecution renewed its application for leave to

appeal, noting the lack of positive record evidence since

the 2008 parole denial. On January 25, 2010, the Board

finally provided the court with affidavits from the panel

members explaining their decision to grant parole to

Haeger. Charles Brown stated that he interviewed Haeger

in May 2009, and he felt that “Haeger demonstrated

insight, empathy, and responsibility for the crime he was

involved in.” Haeger admitted to Brown “that he raped

his cousin after breaking into her home” and indicated

that he “wanted to show [he] was a man.” Brown further

stated that “Haeger made it clear that he had learned his

triggers by attending [SOT], and was blunt, honest, and

candid about what he did, including acknowledgement

that he had threatened to kill the victim.” Brown indi-

cated that he reviewed the COMPAS and VASOR assess-

ments, which described Haeger as a low risk to sexually

reoffend. Brown noted that Haeger “was also required to

attend additional [SOT] before parole was finalized. He

completed this program successfully on September 30,

2009.”

Brown acknowledged that Haeger had commit-

ted a major misconduct in 2008. Ultimately, Brown

argued that Haeger would be paroled with many special

conditions in addition to the standard protocol and,

after considering the seriousness of Haeger’s offense,

Brown determined that Haeger had “made a positive

change.”

Nothing in the record supports this assertion.

568 294 M

ICH

549 [Nov

Miguel Berrios stated that he reviewed the reports from

all DOC-recommended programs and specifically noted

that Haeger had completed SOT with positive reports.

Berrios also reviewed the COMPAS and VASOR assess-

ments, which showed Haeger to be a low risk for sexually

reoffending. Berrios described Haeger’s general institu-

tional conduct as good with the exception of the 2008

misconduct. Berrios indicated that he had not personally

interviewed Haeger, but had reviewed the information

from the interview with Brown. Berrios felt that Haeger

had lowered his chances of reoffending and being a risk to

society and had “made good progress toward re-entering

society.”

Ultimately, the circuit court reversed the Board’s

decision to grant parole to Haeger. The court provided

the following justification for its decision:

[A]s noted by the Parole Board in its brief, “[t]he

common theme for the denials appears to be the member’s

[sic] belief that the prisoner failed to show proper insight

concerning his crime.” Indeed, in spite of somewhat favor-

able evaluations used by the [DOC], this was typically the

overriding factor in the Parole Board’s decision not to

grant parole. Their denials repeated, over and over, his lack

of “significant insight into the cause of his deviant behav-

ior” and rationalization that he had been “young and

immature...andblew up”; he “showed little or no empa-

thy for the victim”; “minimizes his behavior based on his

being drunk” and went so far as to suggest that the victim

“is fine and didn’t suffer any injury,” reflecting an absence

of “insight or remorse”; and generally “lacks the necessary

insight into his deviant behavior.” Yet even as Mr. Haeger’s

major contraband violation reduced his probability of pa-

role from “high” to “average,” the Parole Board suddenly

changes its mind, on the basis of no reasons in the record,

and decides that Mr. Haeger’s past history of deflecting

responsibility for his actions is cured and that he now

accepts responsibility for his behavior.

2011] In re P

AROLE OF

AEGER

569

To the extent that there are any reasons in the record at all

since Mr. Haeger was most recently denied parole, they tend

not to reflect well on Mr. Haeger. A COMPAS evaluation of

Mr. Haeger, dated June 6, 2008, is generally positive but

eviscerates its own credibility with the total disconnect be-

tween its evaluation of his Behavioral/Psychological condition

(“likely absence of blaming others, making excuses or mini-

mizing the seriousness of the offense...unlikely to lead a

high risk lifestyle or make impulsive decisions”) and the

accompanying “statement,” which says that Mr. Haeger has

“a likely criminal personality which may include impulsivity,

risk-taking, restlessness/boredom, absence of guilt (callous-

ness), selfishness and narcissism, interpersonal dominance,

anger and hostility, and a tendency to exploit others.” Addi-

tionally, Mr. Haeger was scored on the VASOR system, dated

February 11, 2009, which graded him at a “high” risk level.

Yet, with only these evaluations of Mr. Haeger as further

developments of his parole eligibility, the Parole Board de-

parted from four prior denials of parole (including its own

timeline, which had scheduled a 24-month interim before

reconsidering Mr. Haeger’s parole status) to suddenly grant

him parole.

To be sure, Mr. Haeger has filed an extremely well-argued

brief in defense of being granted parole, and the Court does

not wish to trivialize his efforts at that or rehabilitation. The

issue here, however, is the acceptability of the Parole Board’s

actions. While Mr. Haeger may or may not have come to

accept his own responsibility for what happened in 1992,

there is no evidence in the record that he has. The Parole

Board has consistently denied him parole on this basis, and

then suddenly decides he has satisfied their standards, with-

out any evidence of gradual improvement or the other grada-

tions in their observations of his behavior that would be

consistent with such a change of heart. Indeed, to the extent

that there is anything in the record that would induce the

Parole Board to change its mind, it is the extremely troubling

COMPAS evaluation and the unflattering VASOR score.

Ignoring these tests, or cherry-picking only the most favor-

able elements of them in order to rationalize what the Parole

Board had previously considered to be overwhelming evi-

570 294 M

ICH

549 [Nov

dence against granting parole, is an arbitrary act which

abuses the discretion vested in the Parole Board to make

principled decisions. [Citations omitted.]

Following the court’s decision, the Board and Haeger

both moved for reconsideration. At that time, the Board

finally supplied the court with Teresa Chandler’s affi-

davit regarding the computer software error on Haeger’s

COMPAS report. The court denied the motions for recon-

sideration and, as a result, Haeger remains in prison.

IV. STANDARD OF REVIEW

Judicial review of the Board’s decision to grant parole is

limited to the abuse-of-discretion standard. Wayne Co Pros-

ecutor v Parole Bd, 210 Mich App 148, 153; 532 NW2d 899

(1995). Either the prosecutor or the victim of an offense

may appeal in the circuit court when the Board grants a

prisoner parole. MCL 791.234(11); Morales v Parole Bd,

260 Mich App 29, 35; 676 NW2d 221 (2003). Under MCR

7.104(D)(5) the challenging party has the burden to show

either that the Board’s decision was “a clear abuse of

discretion” or was “in violation of the Michigan Constitu-

tion, a statute, an administrative rule, or a written agency

regulation.” An abuse of discretion occurs when the trial

court’s decision falls outside the range of reasonable and

principled outcomes. People v Babcock, 469 Mich 247, 269;

666 NW2d 231 (2003). Importantly, a reviewing court may

not substitute its judgment for that of the Board. Morales,

260 Mich App at 48. [Elias, 294 Mich App at 538-539.]

V. HAEGER’S CONSTITUTIONAL CHALLENGES LACK MERIT

Haeger contends that the circuit court ordered the

Board to deny him parole and thereby violated the

separation-of-powers doctrine. We disagree with Hae-

ger’s interpretation of the court’s order.

MCR 7.104(D)(8) governs the conduct of the Board

after a circuit court “reverse[s] or remand[s]” a parole

decision as follows:

2011] In re P

AROLE OF

AEGER

571

If a decision of the parole board is reversed or remanded,

the board shall review the matter and take action consistent

with the circuit court’s decision within 28 days. If the circuit

court order requires the board to undertake further review of

the file or to reevaluate its prior decision, the board shall

provide the parties with an opportunity to be heard.

This Court extensively described the separation of

powers between the judiciary and the Board, which is

an arm of the executive branch, and the interplay of the

court rule in Hopkins, 237 Mich App at 642:

MCR 7.104(D)(8) contemplates that a Parole Board deci-

sion whether to grant parole may be reversed or the matter

may be remanded. In reversing a Parole Board decision, the

circuit court simply undoes it; to “reverse” means

“[t]o overthrow, vacate, set aside, make void, annul, repeal,

or revoke; as, to reverse a judgment, sentence or decree of

a lower court by an appellate court, or to change to the

contrary or to a former condition. To reverse a judgment

means to overthrow it by contrary decision, make it void,

undo or annul it for error.” [Black’s Law Dictionary.]

In remanding a decision to the Parole Board, the circuit

court does not specifically overrule it, but simply returns it

to the Parole Board for some further consideration or

activity. To “remand” is

“[t]o send back. The act of an appellate court when it sends

a case back to the trial court and orders the trial court to

conduct limited new hearings or an entirely new trial, or to

take some other further action.” [Id.]

Consistently with the definitions of “reverse” and

“remand,” Hopkins held that MCR 7.104(D)(5)

allows

the circuit court to

MCR 7.104(D)(5) states:

The burden shall be on the appellant to prove that the decision

of the parole board was

572 294 M

ICH

549 [Nov

review the Parole Board’s decision to ensure that the board

complied with the constitution, the statutory provisions,

and applicable administrative rules, and, if so, that the

board did not otherwise commit a clear abuse of discretion.

As MCR 7.104(D)(8) contemplates, the court may reverse

the Parole Board’s decision or order further action consis-

tent with the applicable constitutional, statutory, and ad-

ministrative provisions. While the court may order that the

Parole Board conform its conduct to the applicable provi-

sions, no applicable provision authorizes the court to order

that the Parole Board release a prisoner on parole. [Hop-

kins, 237 Mich App at 645-646.]

In this case, the circuit court did not order the Board

to deny Haeger parole. Rather, the court held that the

Board’s decision was inconsistent with the objective

factors outlined in the statutes and regulations and the

record facts. The circuit court declined to simply “re-

mand” the decision to the Board under MCR

7.105(D)(7), which provides:

On timely motion by a party, or on the court’s own

motion, the court may remand the matter to the parole

board for an explanation of its decision. The parole board

shall hear and decide the matter within 28 days of the date

of the order, unless the board determines that an adjourn-

ment is necessary to obtain evidence or that there is other

good cause for an adjournment.

The court had already remanded pursuant to subrule

(D)(7) on September 1, 2009, and the Board failed to

adequately explain its decision. Accordingly, the court

proceeded under subrule (D)(8) and reversed the

Board’s decision. The Board must now “review the

(a) in violation of the Michigan Constitution, a statute, an

administrative rule, or a written agency regulation that is ex-

empted from promulgation pursuant to MCL 24.207, or

(b) a clear abuse of discretion.

2011] In re P

AROLE OF

AEGER

573

matter and take action consistent with the circuit

court’s decision,” MCR 7.104(D)(8), by “conform[ing]

its conduct” to “the applicable constitutional, statutory,

and administrative provisions,” Hopkins, 237 Mich App

at 646.

We also reject Haeger’s contention that he was de-

nied due process of law because the circuit court de-

prived him of his right to parole without providing an

adequate opportunity to be heard.

Haeger argues that

once the Board decides to grant parole, the prisoner has

a vested liberty interest, regardless of whether the

prisoner remains in prison pending release. Haeger

further contends that he was unable to respond to the

prosecutor’s application for leave to appeal in the cir-

cuit court and that the court was required to conduct a

hearing rather than decide the issue on the briefs.

Haeger’s argument is fatally flawed. “A prisoner

enjoys no constitutional or inherent right to be condi-

tionally released from a validly imposed sentence.”

Jones, 468 Mich at 651; see also Morales, 260 Mich App

at 48, and Greenholtz v Inmates of Nebraska Penal &

Correctional Complex, 442 US 1, 7; 99 S Ct 2100; 60 L

Ed 2d 668 (1979). If parole is granted and the prisoner

is actually released from prison on parolee status, that

parolee gains an interest in continued liberty. Although

the parolee is still under the supervision of the DOC, he

or she “can be gainfully employed and is free to be with

family and friends and to form the other enduring

attachments of normal life.” Morrissey v Brewer, 408

US 471, 482; 92 S Ct 2593; 33 L Ed 2d 484 (1972).

In the circuit court, Haeger asserted that his right to due process had

been violated by the prosecutor’s failure to notify him of his right to

respond to the application for leave as required by MCR

7.104(D)(2)(c)(iii)(A). However, the prosecutor did notify Haeger of his

rights on the required form on August 1, 2009.

574 294 M

ICH

549 [Nov

Therefore, when a parolee commits a parole violation

leading to revocation of his parole, the parolee has a

due-process right to “notice and the opportunity to be

heard.” Jones, 468 Mich at 652.

However, a potential parolee who remains in prison

has no liberty to protect. As noted by the United States

Supreme Court, “parole release and parole revocation

are quite different. There is a crucial distinction be-

tween being deprived of a liberty one has, as in parole,

and being denied a conditional liberty that one desires.”

Greenholtz, 442 US at 9. A prisoner awaiting release on

parole remains “confined and thus subject to all of the

necessary restraints that inhere in a prison.” Id. The

“mere hope that the benefit” of parole “will be ob-

tained” is too general and uncertain and, therefore, “is

not protected by due process.” Id. at 11.

In any event, Haeger received notice and had an

opportunity to be heard before the circuit court re-

viewed the prosecutor’s application for leave to appeal

the Board’s decision. The prosecutor notified Haeger of

his intent to appeal the Board’s decision. Haeger then

moved to dismiss the prosecutor’s application for leave

to appeal on September 11, 2009. The circuit court

granted the prosecutor’s application on November 3,

2009, and scheduled a hearing for November 25, 2009.

Once the circuit court granted the application for leave

to appeal, Haeger filed two separate briefs supporting

the Board’s decision to grant him parole. The circuit

court ultimately canceled the November 25 hearing and

proceeded on the briefs alone as no party had requested

argument pursuant to MCR 7.101(K), which states

that, in an appeal to the circuit court, “[a] party who

has filed a timely brief is entitled to oral argument by

writing ‘ORAL ARGUMENT REQUESTED’ in bold-

face type on the title page of the party’s brief.” Haeger

2011] In re P

AROLE OF

AEGER

575

never objected to the court’s order and failed to raise

this complaint in his motion for reconsideration filed

after the circuit court’s opinion. We will not fault the

circuit court for failing to provide an aggrieved party

with a formal hearing when that party never requested

one.

VI. THE PAROLE BOARD DID NOT CONFORM ITS CONDUCT TO

THE STATUTES AND REGULATIONS

Although we disagree with the reasoning employed

by the circuit court, we agree with its decision to reverse

the Board’s grant of parole to Haeger. MCR

7.105(D)(5)(a) provides that a prosecutor appealing a

Board decision has the burden to show that the decision

was entered “in violation of...astatute, an adminis-

trative rule, or a written agency regulation....”From

the record before this Court, it appears that the Board

violated its duty to “consider[] all relevant facts and

circumstances,” Mich Admin Code, R 791.7715(1), “in

determining whether parole is in the best interests of

society and public safety,” Mich Admin Code, R

791.7715(2).

Mich Admin Code, R 791.7715(2)(c)(iii) provides that

the Board may consider a prisoner’s “readiness for

release” as evinced by his or her “[d]evelopment of a

suitable and realistic parole plan.” Since as early as

2005, the DOC has used TAPs to assist prisoners in

reaching this goal. According to an October 2005 DOC

report, all state correctional facilities were scheduled to

be involved in the MPRI model by September 2007.

And as noted, the development of TAPs is “the lynch-

The MPRI Statewide Implementation Plan: A Three-Step Approach,

October 2005, available at <http://www.michigan.gov/documents/

3-_Statewide_Implementation_Plan_140266__7.pdf> (accessed Septem-

ber 8, 2011).

576 294 M

ICH

549 [Nov

pin” of the MPRI model.

In the 2008 appropriations

act for the DOC, 2008 PA 245, § 403(8), the Legislature

made the DOC’s 2009 appropriation contingent on the

imposition of a TAP requirement, stating that the DOC

“shall ensure that each prisoner develops a [TAP] at

intake in order to successfully reenter the community

after release from prison. Each prisoner’s [TAP] shall

be reviewed at least once each year to assure adequate

progress.” Although the DOC did not formally require

that TAPs be prepared with potential parolees until

March 2010,

it is apparent that these reports were

already in widespread use by then. However, it appears

from the record before us that the DOC did not develop

a TAP with Haeger to outline his transition into society.

More importantly, the Board violated the mandate of

Mich Admin Code, R 791.7715(5) by making its parole

decision in the absence of evidence that Haeger had

participated in a psychological or psychiatric evalua-

tion. The regulation provides that a prisoner with a

history of predatory or assaultive sexual offenses must

undergo such an evaluation before the Board may

render a parole decision. Mich Admin Code, R

791.7715(5)(b). Haeger underwent psychological evalu-

ations in 1992, when he entered the prison system, and

in 1993, in preparation for appealing his convictions

and sentences. Nothing in the record indicates that

Haeger has been psychologically evaluated in the last 18

years. The information in the historical evaluations is of

The MPRI Model: Statements and Recommendations,p5.

DOC Policy Directive 03.02.101, ¶ I, p 2, provides, in relation to a

prisoner receiving MPRI in-reach services, that a TAP “shall be devel-

oped or updated for the prisoner, as appropriate, to identify programming

and other tasks and activities that the prisoner is expected to complete in

order to reduce his/her identified risks, including any specifically identi-

fied by the Parole and Commutation Board.”

2011] In re P

AROLE OF

AEGER

577

little relevance in determining “whether parole is in the

best interests of society and public safety” as Rule

791.7715(2) requires.

Similarly, Parole Board Member Brown indicated in

his affidavit that Haeger completed additional SOT in

2009 while receiving in-reach services. However, we

have located no record description of any services

provided to Haeger during the in-reach program. The

record is also devoid of information regarding Haeger’s

performance in those programs. Neither this Court nor

the circuit court can properly review a Board decision

on the basis of an obviously incomplete record. Regard-

less of fault for the omissions, Haeger’s file lacks case

summary reports produced following Board interviews,

any reports produced following in-reach services, or any

TAP that may have been developed with Haeger. These

gaps in the record support a single conclusion: that the

Board granted Haeger parole in violation of controlling

administrative rules and agency regulations.

Absent a complete record and an updated psychologi-

cal evaluation, we cannot discern whether the Parole

Board committed a clear abuse of discretion by granting

parole. Accordingly, the circuit court erred by reversing

the Board’s decision on that ground. We note that the

circuit court did attempt to fill the holes in the record,

but the Board was less than forthcoming and expedient

in providing the necessary information for the court’s

review. In any event, we will briefly address certain

errors in the circuit court’s analysis of the Board’s

actions to prevent any future error.

First, the circuit court correctly noted the internal

inconsistency in the COMPAS report. The Board exac-

erbated the error by failing to remedy or explain the

inconsistency until its motion for reconsideration of the

court’s order of reversal. We do not find the presence of

578 294 M

ICH

549 [Nov

conflicting information in the report to be dispositive. In

other contexts, this Court has repeatedly determined that

there is no abuse of discretion when a court or a fact-

finder faced with conflicting information makes a reason-

able and principled decision regarding which side to be-

lieve. See, e.g., People v Wybrecht, 222 Mich App 160, 173;

564 NW2d 903 (1997) (“[A] sentence is not invalid because

probation agents and a defendant’s psychologists use

undisputed facts to draw conflicting conclusions about the

defendant’s character.”). The current Board panel read

the conflicting statements regarding Haeger’s psychologi-

cal and behavioral health. A member of the current panel

also interviewed Haeger and reached his own conclusion

regarding Haeger’s mentality. The Board chose to believe

the COMPAS statement that Haeger did not have crimi-

nal ideations, that statement is supported by record evi-

dence, and the Board did not abuse its discretion in

granting parole based on that evidence.

Similarly, we reject the circuit court’s disregard for

the current panel’s decision simply because it conflicted

with the decisions of previous Parole Board panels.

Each and every parole panel faces some conflicting

information in making its decision. Each panel member

has the discretion to consider the evidence and make a

reasonable choice regarding which version of the evi-

dence to believe. It is not an abuse of discretion for two

fact-finders to reach different conclusions from the

complex and potentially conflicting information within

a prisoner’s record.

We further reject the circuit court’s dismissal of the

Board’s analysis of various assessment scales. The

COMPAS and VASOR assessments and the parole

guidelines all include static and dynamic factors. Hae-

ger cannot change the circumstances of his past offense,

2011] In re P

AROLE OF

AEGER

579

and those variables will consistently reduce his overall

scores on risk assessments. Haeger may improve his

parole outlook, however, by engaging in services toward

rehabilitation. Giving the various static and dynamic

factors similar weight allows the Board to effectuate

both the punitive and rehabilitative features of the

corrections system. As our Supreme Court noted in

People v Schultz, 435 Mich 517, 531-532; 460 NW2d 505

(1990),

[f]our factors may be taken into consideration to determine

the appropriateness of a sentence: rehabilitation, deter-

rence, the protection of society, and punishment....

***

. . . [T]he ultimate goal of sentencing in this state is not

to exact vengeance, but to protect society through just and

certain punishment reasonably calculated to rehabilitate

and thereby “ ‘convert bad citizens into good citi-

zens....’”[Citations omitted.]

Accordingly, we disagree with the circuit court’s

conclusion that the Board “cherry-picked” the most

favorable aspects of Haeger’s COMPAS and VASOR

assessments. Rather, the Board recognized that Hae-

ger’s overall VASOR rating was heavily affected by the

circumstances of the sentencing offense. Based on that

observation, the Board gave special consideration to

Haeger’s low risk of recidivism found on both assess-

ments. The Board’s seemingly weighted consideration

of Haeger’s VASOR score is supported by commentary

regarding this scale. While incarceration is generally

recommended for a prisoner scored as a high risk on the

VASOR scale,

official sources acknowledge that “the

violence risk scale [as it was previously designated] was

McGrath & Hoke, p 1.

580 294 M

ICH

549 [Nov

not designed to nor does it predict sexual or other types

of reoffense risk particularly well....”

The scale has

been renamed “Violence Scale” to reflect that “its

primary purpose is to quantify the severity of an

individual’s violence history rather than the likelihood

of violent recidivism.”

Ultimately, while the Board properly considered the

evidence that was placed before it, it did not have a

complete record on which to base the parole decision.

The Board violated its regulatory duty to defer its

parole decision until Haeger submitted to a psychologi-

cal or psychiatric evaluation. And the Board or the

DOC, or both, failed to maintain careful records docu-

menting Haeger’s participation in services and comple-

tion of steps necessary for parole. Accordingly, we agree

with the circuit court’s decision to reverse the Board’s

grant of parole. This conclusion is not fatal to Haeger’s

chances for parole. Rather, the Board must now ensure

that it considers all necessary information in rendering

its parole decision and adequately and accurately docu-

ments these steps in the record. After a thorough

review as required by statute, regulation, and DOC

policy directive, the Board may use its discretion to

either grant or deny parole to Haeger.

Affirmed.

ARKEY

,P.J., and S

AAD

, J., concurred with G

LEICHER

Id. at 6.

Id. at 7.

2011] In re P

AROLE OF

AEGER

581

MOON v MICHIGAN REPRODUCTIVE & IVF CENTER, PC

Docket No. 299623. Submitted September 7, 2011, at Grand Rapids.

Decided September 29, 2011. Approved for publication November

8, 2011, at 9:00 a.m.

Alison Moon brought an action in the Kent Circuit Court against

Michigan Reproductive and IVF Center, P.C. (MRIC), and Grand

Rapids Fertility & IVF, P.C. (GRFI), alleging that the clinics had

discriminated against her on the basis of marital status contrary to

Michigan’s Civil Rights Act (CRA), MCL 37.2101 et seq. Moon

stipulated to the dismissal of her claim against MRIC. The court,

Mark A. Trusock, J., granted GRFI’s motion for summary dispo-

sition, concluding that under Michigan common law, physicians

may refuse to enter into a physician-patient relationship for any

reason or no reason at all, and that GRFI’s refusal to treat Moon

was, accordingly, permitted by law. The court further noted that

even if Moon had stated a claim for which relief could be granted

under the CRA, it would have dismissed her claim against GRFI on

the merits because the court believed that GRFI had articulated a

legitimate, nondiscriminatory reason for refusing to treat Moon.

Moon appealed.

The Court of Appeals held:

1. Under MCL 37.2302(a) of the CRA, “[e]xcept where permit-

ted by law,” a person may not deny an individual the full and equal

enjoyment of the goods, services, facilities, privileges, advantages,

or accommodations of a place of public accommodation or public

service because of marital status. Marital status refers to whether

an individual is married or not. The phrase “except where permit-

ted by law” encompasses statutory law, common law, and consti-

tutional law. However, the contractual nature of the physician-

patient relationship, which under the common law permitted a

physician to decline to enter into the relationship for any reason,

does not allow a physician to decline to enter into the relationship

on the basis of the patient’s protected status under the CRA.

Rather, a physician may only refuse to enter into a physician-

patient relationship with a potential patient on the basis of legally

permissible, nondiscriminatory reasons, and the trial court erred

by holding otherwise.

582 294 M

ICH

582 [Nov

2. To state a claim for violation of the CRA under MCL

37.2302(a), a plaintiff must establish (1) discrimination based on a

protected characteristic (2) by a person (3) resulting in the denial

of the full and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations (4) of a place of public

accommodation. In a discrimination action based on disparate

treatment, the plaintiff has the initial burden to establish the

existence of illegal discrimination, either through direct or indirect

evidence. Direct evidence is evidence which, if believed, requires

the conclusion that unlawful discrimination was at least a moti-

vating factor in the decision-maker’s actions. The presentation of

direct evidence of discrimination requires that the case proceed as

an ordinary civil matter. In this case, Moon provided direct

evidence in support of her claim, specifically, e-mail messages that

she received from GRFI which stated that GRFI did not provide

services to single women. Accordingly, the case should have

proceeded as an ordinary civil matter to discovery and trial. The

provision of rebuttal evidence by GRFI was irrelevant at the

summary disposition phase in light of the direct evidence of

discrimination.

Reversed and remanded.

1. C

IVIL

IGHTS —

ARITAL

TATUS —

UBLIC

CCOMMODATIONS —

HYSICIAN

ATIENT

ELATIONSHIPS

Under Michigan’s Civil Rights Act (CRA), “[e]xcept where permitted

by law,” a person may not deny an individual the full and equal

enjoyment of the goods, services, facilities, privileges, advantages,

or accommodations of a place of public accommodation or public

service because of marital status; marital status refers to whether

an individual is married or not; the phrase “except where permit-

ted by law” encompasses statutory law, common law, and consti-

tutional law; however, the contractual nature of the physician-

patient relationship, which under the common law permitted a

physician to decline to enter into the relationship for any reason,

does not allow a physician to decline to enter into the relationship

on the basis of the patient’s protected status under the CRA;

rather, a physician may only refuse to enter into a physician-

patient relationship with a potential patient on the basis of legally

permissible, nondiscriminatory reasons (MCL 37.2302[a]).

2. C

IVIL

IGHTS —

ISCRIMINATION

ASED ON

ROTECTED

HARACTERISTICS —

UBLIC

CCOMMODATIONS —

ISPARATE

REATMENT —

IRECT

VIDENCE

To state a claim for violation of Michigan’s Civil Rights Act (CRA), a

plaintiff must establish (1) discrimination based on a protected

characteristic (2) by a person (3) resulting in the denial of the full

2011] M

OON V

ICH

EPRODUCTIVE

& IVF C

583

and equal enjoyment of the goods, services, facilities, privileges,

advantages, or accommodations (4) of a place of public accom-

modation; in a discrimination action based on disparate treat-

ment, the plaintiff has the initial burden to establish the

existence of illegal discrimination, either through direct or

indirect evidence; direct evidence is evidence which, if believed,

requires the conclusion that unlawful discrimination was at

least a motivating factor in the decision-maker’s actions; the

presentation of direct evidence of discrimination requires that

the case proceed as an ordinary civil matter; the provision of

rebuttal evidence by the defendant is irrelevant at the summary

disposition phase if the plaintiff has presented direct evidence of

discrimination (MCL 37.2302[a]).

Rathert Law Offices, P.C. (by Kenneth A. Rathert),

and MD Smith Law Office, PLLC (by Marlo D. Smith),

for Alison Moon.

Garan Lucow Miller, P.C. (by Megan K. Cavanagh

and Michael D. Wade), for Grand Rapids Fertility & IVF,

P.C.

Before: G

LEICHER

,P.J., and H

OEKSTRA

and S

TEPHENS

JJ.

URIAM

. Plaintiff Alison Moon contacted Grand

Rapids Fertility & IVF, P.C. (GRFI), and Michigan Repro-

ductive & IVF Center, P.C. (MRIC), and specifically asked

if the clinics would provide in vitro fertilization (IVF)

services to a single woman. Both facilities responded

that they did not provide IVF services to single women.

Moon filed suit against both, alleging a single count of

discrimination based on marital status under

“In vitro fertilization” is defined as “fertilization of an egg in a

laboratory dish or test tube; specifically: mixture usually in a laboratory

dish of sperm with eggs which have been obtained from an ovary that is

followed by introduction of one or more of the resulting fertilized eggs

into a female’s uterus[.]” MedlinePlus, Medical Dictionary <http://

www.merriam-webster.com/medlineplus/in%20vitro%20fertilization>

(accessed September 1, 2011).

584 294 M

ICH

582 [Nov

the Civil Rights Act (CRA), MCL 37.2101 et seq. The

circuit court dismissed Moon’s discrimination action,

stating that, under the common law, a doctor could

refuse to enter into a doctor-patient relationship with

any individual for any reason or no reason at all.

Accordingly, the court concluded that the common law

permitted a doctor to reject a potential patient even for

discriminatory reasons.

Under the circuit court’s reasoning, a doctor could

refuse to treat any patient based solely on a character-

istic protected under the CRA, including race, and yet

avoid legal liability. Because such a result certainly was

not contemplated by the Legislature, we reverse and

remand for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

Moon began receiving IVF treatments from the Uni-

versity of Michigan Health System in Ann Arbor, but

she desired to continue her treatments closer to her

home in Portage. On July 3, 2008, Moon sent an e-mail

to GRFI and specifically inquired if the facility provided

IVF treatment to single women. Dr. Douglas Daly

responded via e-mail that while GRFI provided various

fertility treatments to all women, it did not provide

insemination services to single women. Dr. Daly re-

ferred Moon to another clinic that is not a party to this

suit. Dr. Daly’s response stated in full:

We provided [sic] medically indicated treatment for all

women. However, the state of Mochigan [sic], like most

states, does not have adequate statutory or case law for

reproductive health. All children have the right to child

support (the basis of paternity payments) but in the case of

donor insemination (or any conception outside a marriage)

the law does not provide any definition for paternity. By

contract the donor is protected by the company processing

the sperm. The company is protected by the legal agree-

2011] M

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585

ment with the MD. The inseminated woman can NOT sign

away the right to child support for the child, therefore in

the absence of any controlling law or legal precident [sic]

the child may be able to claim child support from the MD

involved. And make that claim retroactively until 21 yrs of

age (maybe longer) – similar to the precedent set by

malpractice litigation.

Until I feel there is adequate law I will not be

providing insemination services to single individuals.

While the issue is somewhat different there is an IVF

program in Boston Ma (a terribly conservative state)

that has been ordered to pay 1.2M in child support – no

one believed (except me) when the case was filled [sic]

there was any chance the plantive [sic] would win. I am

not willing to gamble my financial future on this issue. If

you only need insemination – contact [another clinic] –

we supply them with all medical treatment for the

patient – other than IVF.

Moon queried whether the recommended clinic would

similarly deny her treatment. Dr. Daly responded that

the recommended clinic might deny her treatment.

However, he indicated:

They are not as jaded regarding the legal profession as I

am and since they are not an IVF program they have a

much lower profile. They have been providing this service

for many years – and I have provided any necessary

infertility based medical evaluation and treatment – other

than the actual inseminations.

Dr. Daly and Moon subsequently exchanged two more

e-mails discussing her chances of pregnancy and mul-

tiple pregnancy using different types of fertility drugs.

In August 2008, Moon falsely informed MRIC that she

was in a relationship in order to secure an initial consul-

tation. When Moon ultimately informed Dr. James Young

that she was single, the doctor informed her that MRIC

does not provide IVF services for single women. Dr. Young

referred Moon to a nurse practitioner who could perform

586 294 M

ICH

582 [Nov

the artificial inseminations. Upon meeting Moon, how-

ever, the nurse practitioner felt that Moon was “emotion-

ally unstable” and informed Dr. Young that Moon in-

tended to file suit against him. Accordingly, Dr. Young and

MRIC refused to treat Moon. As a result of GRFI’s and

MRIC’s denial of treatment, Moon travelled to Ypsilanti,

over two hours away from her home, to receive IVF

treatment.

Moon filed suit against GRFI and MRIC on May 20,

2010, alleging a single count of discrimination based on

marital status under MCL 37.2302 of the CRA. GRFI

filed a motion for summary disposition, citing the

statute’s express exception to the antidiscrimination

legislation: discrimination is prohibited “[e]xcept where

permitted by law....”GRFI asserted that the creation

of a doctor-patient relationship is consensual under the

common law and “a physician is not required to render

services to anyone.” Accordingly, GRFI contended that

the CRA was inapplicable to the doctor-patient relation-

ship. Rather, the CRA was intended to prevent discrimi-

nation in more informal relationships, such as those

between a retail store and its customer or a common

carrier and its passengers.

Moon responded that, in light of the comments made

by Dr. Daly in his e-mails, GRFI had refused to provide

IVF treatment to her solely because she is a single

woman. Moon conceded that GRFI was not required to

enter into a doctor-patient relationship with her. How-

ever, Moon argued that the decision to accept or deny

her as a patient had to be for legitimate, nondiscrimi-

natory reasons.

The circuit court granted GRFI’s motion for sum-

mary disposition under MCR 2.116(C)(8) and addition-

ally under MCR 2.116(C)(10). The circuit court agreed

with GRFI that, under the Michigan common law:

2011] M

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587

[A] physician-patient relationship is voluntary and con-

sensual, and a physician may refuse to enter into such a

relationship for any reason or no reason at all. This Court

does not believe the [CRA] was intended to function so as to

force professionals to enter into relationships with clients.

That is likely one reason why MCL 37.2302 begins with the

phrase “[e]xcept where permitted by law.” [Third alter-

ation in original.]

Although the circuit court dismissed Moon’s com-

plaint for failure to state a legally cognizable claim, the

court further noted that it would have dismissed

Moon’s claim on the merits as well. Specifically, the

court treated Moon’s claim as presenting indirect evi-

dence of disparate treatment, and ruled that GRFI

could avoid liability by providing a legitimate, nondis-

criminatory reason for refusing treatment. The circuit

court believed that Dr. Daly had provided such a legiti-

mate reason—“potential financial liability given the

lack of regulation and caselaw in Michigan regarding

IVF services.”

II. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion

for summary disposition. Coblentz v City of Novi, 475

Mich 558, 567; 719 NW2d 73 (2006). A motion under

MCR 2.116(C)(8) “tests the legal sufficiency of the claim

on the pleadings alone to determine whether the plain-

tiff has stated a claim on which relief may be granted.”

Spiek v Dep’t of Transp, 456 Mich 331, 337; 572 NW2d

201 (1998).

“A motion under MCR 2.116(C)(10) tests the factual

sufficiency of the complaint.” In evaluating such a motion,

a court considers the entire record in the light most

Moon subsequently stipulated to the dismissal of her claim against

MRIC with prejudice.

588 294 M

ICH

582 [Nov

favorable to the party opposing the motion, including

affidavits, pleadings, depositions, admissions, and other

evidence submitted by the parties. Where the proffered

evidence fails to establish a genuine issue regarding any

material fact, the moving party is entitled to judgment as a

matter of law. [Corley v Detroit Bd of Ed, 470 Mich 274,

278; 681 NW2d 342 (2004) (citation omitted).]

We review de novo underlying issues of statutory

interpretation. Eggleston v Bio-Med Applications of

Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003). The

goal of statutory interpretation is to discern the intent

of the Legislature from the language of the statute. “If

the statutory language is clear and unambiguous, judi-

cial construction is neither required nor permitted, and

courts must apply the statute as written.” Rose Hill Ctr,

Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332

(1997). If a statute is ambiguous, however, judicial

construction is permitted. Detroit City Council v Detroit

Mayor, 283 Mich App 442, 449; 770 NW2d 117 (2009).

III. A PLAINTIFF MAY FILE SUIT AGAINST A “PROFESSIONAL”

UNDER THE CRA

First and foremost, we reject the circuit court’s

conclusion that a professional, such as a doctor, may

reject a patient or client for any reason, including

discriminatory animus toward a protected characteris-

tic. This runs afoul of the very purpose of all antidis-

crimination legislation and cannot be supported.

Marital status occupies a coequal place in the catalog

of protected characteristics identified in the CRA. MCL

37.2102(1) provides:

The opportunity to obtain employment, housing and

other real estate, and the full and equal utilization of public

accommodations, public service, and educational facilities

without discrimination because of religion, race, color,

2011] M

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589

national origin, age, sex, height, weight, familial status, or

marital status as prohibited by this act, is recognized and

declared to be a civil right. [Emphasis added.]

The Michigan Supreme Court defined “marital status”

under the CRA in MillervCAMuer Corp, 420 Mich

355, 362-363; 362 NW2d 650 (1984), as referring simply

to whether an individual is married or not.

MCL 37.2301(a) defines a “place of public accommoda-

tion” as “a business, or...health...facility...whose

goods, services, facilities, privileges, advantages, or accom-

modations are extended, offered, sold, or otherwise made

available to the public.” MCL 37.2302 prohibits discrimi-

nation by a place of public accommodation as follows:

Except where permitted by law, a person shall not:

(a) Deny an individual the full and equal enjoyment of

the goods, services, facilities, privileges, advantages, or

accommodations of a place of public accommodation or

public service because of religion, race, color, national

origin, age, sex, or marital status. [Emphasis added.]

For purposes of summary disposition, GRFI stipulated

that it is a place of public accommodation to which the

statutory prohibition of discrimination applies. The

parties disagree whether GRFI was able to “[d]eny

[Moon] the full and equal enjoyment of” its services

because the denial was otherwise “permitted by law.”

Id.

This Court has previously held that the phrase

“[e]xcept where permitted by law” in MCL 37.2302

encompasses the common law and constitutional law, as

well as statutory law. People v Walker, 135 Mich App

267, 278; 354 NW2d 312 (1984); Cheeseman v American

Multi-Cinema, Inc, 108 Mich App 428, 433; 310 NW2d

408 (1981). Compare Dep’t of Civil Rights ex rel Forton

590 294 M

ICH

582 [Nov

v Waterford Twp Dep’t of Parks & Recreation, 425 Mich

173, 189; 387 NW2d 821 (1986) (declining to answer the

query whether the phrase “except as permitted by law”

includes “constitutional and common law as well as

statutory law”). Assuming arguendo that the statutory

exception includes discrimination permitted under the

common law, we disagree with the circuit court’s overly

broad interpretation of the consensual and voluntary

nature of the doctor-patient relationship.

GRFI correctly notes that a doctor-patient relation-

ship is contractual and may only be established volun-

tarily and through the consent, either express or im-

plied, of both the doctor and the patient. Oja v Kin, 229

Mich App 184; 581 NW2d 739 (1998), citing Hill v

Kokosky, 186 Mich App 300; 463 NW2d 265 (1990), St

John v Pope, 901 SW2d 420 (Tex, 1995), and McKinney

v Schlatter, 118 Ohio App 3d 328; 692 NE2d 1045

(1997). However, the cases cited by GRFI describe the

creation of a doctor-patient relationship in establishing

the necessary elements of a medical-malpractice claim.

The cited cases absolve a doctor of medical-malpractice

liability if the doctor did not explicitly or implicitly

consent to enter into a doctor-patient relationship with

the plaintiff. GRFI has not cited a single case in which

a doctor was allowed to use the consensual nature of the

doctor-patient relationship to discriminate against po-

tential patients based on protected characteristics such

as race or marital status.

As noted by our Supreme Court in Miller, 420 Mich

at 362-363:

Civil rights acts seek to prevent discrimination against a

person because of stereotyped impressions about the char-

acteristics of a class to which the person belongs. The

[CRA] is aimed at the prejudices and biases borne against

persons because of their membership in a certain class, and

2011] M

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591

seeks to eliminate the effects of offensive or demeaning

stereotypes, prejudices, and biases. [Quotation marks and

citations omitted.]

The CRA certainly serves to prohibit doctors and medi-

cal facilities from refusing to form a doctor-patient

relationship based solely on the patient’s protected

status. A contrary interpretation would allow a doctor

to follow his or her personal prejudices or biases and

deny treatment to a patient merely because the patient

is African-American, Jewish, or Italian. Rather, follow-

ing this state’s enactment of the CRA, a doctor may only

deny his or her consent to enter into a doctor-patient

relationship with a potential patient based on legally

permissible, nondiscriminatory reasons.

We find Lyons v Grether, 218 Va 630; 239 SE2d 103

(1977), instructive in this regard. In Lyons, 218 Va at

631, the plaintiff was a blind patient who had entered a

physician’s waiting room with her guide dog. The

doctor refused to treat the plaintiff unless she removed

her dog from the office. Under Virginia law, the blind

are “ ‘entitled to full and equal accommodations’ ” and

“ ‘privileges of...places of public accommodation’ ”

and also have “ ‘the right to be accompanied by a dog

guide....’”Id. at 632 n 1, quoting former Va Code Ann

63.1-171.2. The Virginia Supreme Court acknowledged

that, under the common law, “a physician has no legal

obligation to accept as a patient everyone who seeks his

services” and that the creation of the doctor-patient

relationship is consensual and contractual. Id. at 632-

633. However, the court determined that there was a

remaining issue of material fact whether the defendant

doctor discriminatorily terminated his relationship

with the plaintiff patient because she exercised her

rights under the state’s “White Cane Act.” Id. at

634-635. The current case poses the similar question of

592 294 M

ICH

582 [Nov

whether a doctor may refuse to enter into a doctor-

patient relationship with a patient based on discrimi-

natory factors in violation of the CRA. The answer to

that question clearly is no. Accordingly, the circuit court

erred by dismissing Moon’s discrimination claim pursu-

ant to MCR 2.116(C)(8).

IV. MOON PRESENTED DIRECT EVIDENCE OF DISCRIMINATION

AND THE CIRCUIT COURT IMPROPERLY DISMISSED HER CLAIM

ON THE MERITS

We further reject the circuit court’s conclusion that

Moon failed to create a genuine issue of material fact

that GRFI discriminatorily rejected her as a patient.

In order to state a claim under MCL 37.2302(a), plaintiff

must establish four elements: (1) discrimination based on a

protected characteristic (2) by a person, (3) resulting in the

denial of the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or accommoda-

tions (4) of a place of public accommodation. [Haynes v

Neshewat, 477 Mich 29, 35; 729 NW2d 488 (2007).]

Moon clearly established that she was denied the enjoy-

ment of the goods, services, facilities, privileges, advan-

tages, or accommodations offered by GRFI, which stipu-

lated to being a place of public accommodation for

purposes of summary disposition. The only question

remaining is whether she created a genuine issue of

material fact that GRFI discriminated against her

based on marital status. In this regard, Moon argues

that she was given disparate treatment from married

women.

In a discrimination action based on disparate treat-

ment, the plaintiff has the initial burden to establish

the existence of illegal discrimination, either through

direct or indirect evidence. Hazle v Ford Motor Co, 464

Mich 456, 462-463; 628 NW2d 515 (2001). “[P]roof of

2011] M

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593

discriminatory motive is required in order to establish a

prima facie case” of disparate treatment. Dep’t of Civil

Rights ex rel Peterson v Brighton Area Schools, 171

Mich App 428, 439; 431 NW2d 65 (1988); see also

Farmington Ed Ass’n v Farmington School Dist, 133

Mich App 566, 572; 351 NW2d 242 (1984). Direct

evidence is “ ‘evidence which, if believed, requires the

conclusion that unlawful discrimination was at least a

motivating factor in the’ ” decision-maker’s actions.

Hazle, 464 Mich at 462, quoting Jacklyn v Schering-

Plough Healthcare Prod Sales Corp, 176 F3d 921, 926

(CA 6, 1999).

Moon proffered direct evidence of discrimination,

specifically, the e-mail messages that she received from

Dr. Daly, indicating that GRFI did not provide IVF

treatment to single women. Dr. Daly’s statement, “Un-

til I feel there is adequate law I will not be providing

insemination services to single individuals,” tends to

establish “ ‘that unlawful discrimination was at least a

motivating factor’ ” in Dr. Daly’s decision to deny Moon

IVF services. Hazle, 464 Mich at 462 (citation omitted).

When a plaintiff presents direct evidence of discrimina-

tion, “ ‘the case should proceed as an ordinary civil

matter.’ ” DeBrow v Century 21 Great Lakes, Inc (After

Remand), 463 Mich 534, 540; 620 NW2d 836 (2001),

quoting DeBrow v Century 21 Great Lakes, Inc, unpub-

lished opinion of the Court of Appeals, issued August

13, 1996 (Docket No. 161048) (Y

OUNG

, J., dissenting)

(DeBrow I). As an ordinary civil matter, the circuit

court should have denied GRFI’s motion for summary

disposition on the merits and proceeded through discov-

ery and to trial if necessary.

We note that the circuit court’s error stemmed from

its application of the shifting burdens standard of

McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct

594 294 M

ICH

582 [Nov

1817; 36 L Ed 2d 668 (1973), to Moon’s discrimination

claim. “The shifting burdens of proof described in McDon-

nell Douglas are not applicable if a plaintiff can cite direct

evidence of unlawful discrimination.” DeBrow (After Re-

mand), 463 Mich at 539. As Moon presented direct evi-

dence of discrimination, she was not required to “present

a rebuttable prima facie case...from which a factfinder

could infer” discriminatory animus. Hazle, 464 Mich at

462 (quotation marks, citation, and emphasis omitted).

Further, it was irrelevant at the summary disposition

phase whether GRFI had rebutted Moon’s discrimination

claim by articulating “a legitimate, nondiscriminatory

reason for its” actions. Id. at 464. Rather, the credibility of

GRFI’s claimed motive for denying IVF treatment to

Moon (fear of financial liability for the child conceived) is

a question for the fact-finder. And, “ ‘[n]either this Court

nor the trial court can make factual findings or weigh

credibility in deciding a motion for summary disposi-

tion.’ ” DeBrow (After Remand), 463 Mich at 540, quoting

DeBrow I (Y

OUNG

, J., dissenting).

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

LEICHER

,P.J., and H

OEKSTRA

and S

TEPHENS

, JJ., con-

curred.

2011] M

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PEOPLE v DANTO

PEOPLE v NATER

Docket Nos. 302986, 302991, 303064, and 303525. Submitted August 10,

2011, at Detroit. Decided November 8, 2011, at 9:05 a.m.

Michael S. Danto and Andrew B. Nater were each charged separately

in the Oakland Circuit Court with one count of manufacturing

marijuana and one count of possession with intent to deliver

marijuana. In each case, the court, Leo Bowman, J., denied the

prosecution’s motion to admit evidence of other acts by the

defendant. In each case the trial court also granted the prosecu-

tion’s motion to preclude assertion of the Michigan Medical

Marihuana Act (MMA), MCL 333.26421 et seq., as an affirmative

defense and to preclude reference to the MMA at trial. The

prosecution appealed by leave granted the denial of its motions to

admit other-acts evidence (Docket No. 302986 [Danto] and Docket

No. 302991 [Nater]). Each defendant appealed by leave granted

the granting of the prosecution’s motion to preclude assertion of

the MMA as an affirmative defense and reference to the MMA at

trial (Docket No. 303064 [Nater] and Docket No. 303525 [Danto]).

Danto also appealed the denial of his motion for an evidentiary

hearing and to dismiss the charges. The appeals were consolidated

by the Court of Appeals.

The Court of Appeals held:

1. Other-acts evidence must satisfy three requirements in

order to be admissible under MRE 404(b). It must be offered for a

proper purpose, it must be relevant, and its probative value must

not be substantially outweighed by the danger of unfair prejudice.

The trial court may, on request, instruct the jury regarding the

limited use of the evidence.

2. The other-acts evidence offered against both defendants was

relevant, offered for a proper purpose, and its probative value was

not outweighed by the danger of unfair prejudice. The trial court

abused its discretion by refusing to admit the other-acts evidence.

The orders denying the motions to admit the evidence are reversed

and the cases must be remanded to the trial court for further

proceedings.

596 294 M

ICH

596 [Nov

3. Defendants did not meet their burden of production to

establish that the marijuana found in defendants’ home was kept

in an enclosed, locked facility, as required by MCL 333.26424,

therefore, defendants were not entitled to assert the affirmative

defense provided under MCL 333.26428. The trial court’s order

precluding assertion of the affirmative defense and references to

the MMA at trial are affirmed.

4. The trial court did not abuse its discretion by denying

Danto’s request for an evidentiary hearing under the MMA. MCL

333.26428(b) does not create an automatic right to an evidentiary

hearing upon the filing of a motion to dismiss. It merely requires

dismissal if the defendant establishes the elements of the affirma-

tive defense under MCL 333.26428.

Affirmed in part, reversed in part, and remanded.

LEICHER

, J., concurring in part and dissenting in part, agreed

that the trial court abused its discretion by precluding admission

of the other-acts evidence and did not abuse its discretion by

prohibiting defendants from asserting the affirmative defense

provided in MCL 333.26428 because they failed to adequately

support the proffered defense. Judge G

LEICHER

, however, disagreed

with the determination of the majority that defendants were

properly precluded from referring to the MMA at trial and, to

prevent prejudice to defendants, would reverse the part of the trial

court’s order precluding such references at trial.

1. E

VIDENCE —

ELEVANT

VIDENCE —

NFAIR

REJUDICE

All relevant evidence is prejudicial; only unfairly prejudicial evidence

may be excluded; unfair prejudice exists when there is a tendency

that evidence with little probative value will be given too much

weight by the jury; unfair prejudice may arise when considerations

extraneous to the merits of the case, such as jury bias, sympathy,

anger, or shock, are injected.

2. C

ONTROLLED

UBSTANCES —

ARIJUANA —

EDICAL

ARIJUANA —

FFIRMATIVE

EFENSES —

URDEN OF

ROOF

The Michigan Medical Marihuana Act provides an affirmative de-

fense to prosecution; the defendant has the burden to establish a

prima facie case for the affirmative defense by presenting some

evidence on all the elements of the defense; if the defendant fails

to establish an element of the defense, the defense should not be

presented to the jury (MCL 333.26428).

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Jessica R. Cooper, Prosecuting Attor-

2011] P

EOPLE V

ANTO

597

ney, and Thomas R. Grden and Danielle Walton, Assis-

tant Prosecuting Attorneys, for the people.

Rosemary Gordon Pánuco for defendants.

Before: M

ARKEY

,P.J., and S

AAD

and G

LEICHER

,JJ.

ARKEY

,P.J. In these four consolidated, interlocutory

appeals both the prosecution and defendants, Michael

Danto and Andrew Nater, appeal the trial court’s pre-

trial evidentiary rulings. In Docket No. 302986 (Danto)

and Docket No. 302991 (Nater), the prosecution appeals

by leave granted the trial court’s order denying its

motion to admit evidence of other acts committed by

the respective defendants. In Docket No. 303064

(Nater) and Docket No. 303525 (Danto), the respective

defendants appeal by leave granted the trial court’s

order granting the prosecution’s motion to preclude

assertion of the Michigan Medical Marihuana Act

(MMA), MCL 333.26421 et seq.,

as an affirmative

defense and to preclude reference to the MMA at trial.

Danto also appeals the trial court’s order denying his

motion for an evidentiary hearing and to dismiss under

the provisions of the MMA. We affirm the trial court’s

orders in Docket Nos. 303064 and 303525, reverse the

trial court’s orders in Docket Nos. 302986 and 302991,

and remand for further proceedings.

In Docket No. 302986, the prosecution argues that

the trial court abused its discretion by barring the

admission of evidence of other acts Danto committed.

We agree. We review a trial court’s evidentiary decisions

The MMA uses the spelling “marihuana.” This opinion follows the

lead of People v King, 291 Mich App 503; 804 NW2d 911 (2011), lv gtd 489

Mich 957 (2011), and People v Redden, 290 Mich App 65; 799 NW2d 184

(2010), and uses the more common spelling “marijuana” except in

quotations.

598 294 M

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596 [Nov

PINION OF THE

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for an abuse of discretion. People v Martzke, 251 Mich

App 282, 286; 651 NW2d 490 (2002). A trial court

abuses its discretion when its decision falls outside the

range of principled outcomes. People v Blackston, 481

Mich 451, 460; 751 NW2d 408 (2008).

MRE 404(b)(1) provides:

Evidence of other crimes, wrongs, or acts is not admis-

sible to prove the character of a person in order to show

action in conformity therewith. It may, however, be admis-

sible for other purposes, such as proof of motive, opportu-

nity, intent, preparation, 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.

“To be admissible under MRE 404(b), bad-acts evidence

must satisfy three requirements: (1) the evidence must

be offered for a proper purpose; (2) the evidence must

be relevant; and (3) the probative value of the evidence

must not be substantially outweighed by [the danger of]

unfair prejudice.” People v Kahley, 277 Mich App 182,

184-185; 744 NW2d 194 (2007). Also, the trial court, on

request, may instruct the jury regarding the limited use

of the evidence. People v Watson, 245 Mich App 572,

577; 629 NW2d 411 (2001).

Evidence relevant to a noncharacter purpose is admis-

sible under MRE 404(b) even if it also reflects on a

defendant’s character. Evidence is inadmissible under this

rule only if it is relevant solely to the defendant’s character

or criminal propensity. Stated another way, the rule is not

exclusionary, but is inclusionary, because it provides a

nonexhaustive list of reasons to properly admit evidence

that may nonetheless also give rise to an inference about

the defendant’s character. Any undue prejudice that arises

because the evidence also unavoidably reflects the defen-

dant’s character is then considered under the MRE 403

2011] P

EOPLE V

ANTO

599

PINION OF THE

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balancing test, which permits the court to exclude relevant

evidence if its “probative value is substantially outweighed

by the danger of unfair prejudice....”MRE403. [People v

Mardlin, 487 Mich 609, 615-616; 790 NW2d 607 (2010)

(citations omitted).]

All relevant evidence is prejudicial; only unfairly preju-

dicial evidence may be excluded. People v McGhee, 268

Mich App 600, 613-614; 709 NW2d 595 (2005). “Unfair

prejudice exists when there is a tendency that evidence

with little probative value will be given too much weight

by the jury.” Id. at 614. Unfair prejudice may arise

where considerations extraneous to the merits of the

case, such as jury bias, sympathy, anger, or shock, are

injected. Id.

Here, the prosecution moved to admit evidence that on

the same date that Danto and Nater’s residence was

searched, officers executed a search warrant at a café in

which marijuana was sold and smoked. At the café, Danto

was found at a table with 323 grams of marijuana pack-

aged for sale, hashish, THC (tetrahydrocannabinol) candy,

packaging material, a scale, a tally sheet, a cell phone, and

$2,434 in cash. A document in the cashbox at the front

door of the café indicated that Danto had paid an entrance

fee to sell marijuana at the café. The proper purposes for

the evidence included establishing Danto’s knowledge of

and control over the marijuana found in his residence.

“Constructive possession of an illegal substance requires

proof that the defendant knew of its character.” Id. at 610.

Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the deter-

mination of the action more probable or less probable

than it would be without the evidence.” MRE 401. Danto

was not present in the home when the search warrant was

executed, and he contended that the small amount of

marijuana found in his bedroom was within the amount

permitted by the MMA. Therefore, whether Danto knew

600 294 M

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596 [Nov

PINION OF THE

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about and controlled the larger amount of marijuana

found in the living room was a material issue. Evidence

that Danto was found in possession of a large quantity of

marijuana that was packaged for sale identically to the

marijuana found in the living room of his home on the

same day would tend to make it more likely than not that

he knew the substance in the living room was marijuana

and that he controlled it.

The prosecution has identified the additional

proper purpose of establishing Danto’s intent to

distribute the marijuana. “[P]ossession with intent to

distribute an illegal substance requires the specific

intent to distribute.” McGhee, 268 Mich App at 610.

In People v Williams, 240 Mich App 316, 324; 614

NW2d 647 (2000), this Court upheld the admission of

evidence of the defendant’s prior drug transactions

within five weeks before his arrest because “the

evidence was directly relevant to intent, knowledge,

and scheme, all of which were at issue in the case.

The relevance was direct, in that there was a direct

relationship between the prior sales and the crimes

charged, and did not involve an impermissible inter-

mediate inference to character.” And in People v

Mouat, 194 Mich App 482, 484; 487 NW2d 494 (1992),

this Court affirmed the admission of testimony about

prior drug activity that showed the defendant’s in-

tent to distribute cocaine. Here, a reasonable infer-

ence exists that the marijuana grown in Danto’s

home was the source of the marijuana he possessed at

the café given the identical packaging and the sub-

stantial number of plants being grown in the resi-

dence. Also, Danto’s packaging of the marijuana for

sale and possession of other accouterments of drug

trafficking at the café tends to increase the likelihood

that he intended to distribute the marijuana found at

his residence.

2011] P

EOPLE V

ANTO

601

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The next question is whether the probative value of

the evidence was substantially outweighed by the dan-

ger of unfair prejudice. As discussed, evidence is un-

fairly prejudicial when it tends to adversely affect the

objecting party’s position by injecting extraneous con-

siderations such as jury bias, sympathy, anger, or shock.

McGhee, 268 Mich App at 614. No such extraneous

considerations have been identified here. The trial

court did not explain why it concluded that the preju-

dicial effect substantially outweighed the probative

value of the evidence. Danto contends that the evidence

was unfairly prejudicial for two reasons: first, he would

be unable to effectively cross-examine the undercover

officers regarding the alleged use of false medical-

marijuana cards to obtain access to the café given the

trial court’s ruling precluding mention of the medical

use of marijuana at trial, and, second, the evidence

would confuse or prejudice the jury because the Oak-

land County Prosecuting Attorney and law enforcement

officials are engaged in a concerted and well-publicized

attack on the medical use of marijuana. Neither argu-

ment is persuasive.

The fact that undercover officers used false medical-

marijuana cards to gain access to the café has no

bearing on the theory under which the other-acts

evidence was offered. The prosecution seeks to use

evidence that Danto possessed identically packaged

marijuana for sale and accouterments of drug traffick-

ing at the café to establish his knowledge of and control

over the marijuana in his home and his intent to

distribute that marijuana. Whether an undercover of-

ficer used a false medical-marijuana card to gain entry

into the café has no bearing on whether Danto knew

about, possessed, or intended to distribute the mari-

juana found in his home. Further, no evidence exists

that any false cards were ever shown to Danto.

602 294 M

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596 [Nov

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Also, Danto’s allegation that the Oakland County

Prosecuting Attorney and law enforcement officials are

engaged in a concerted and well-publicized attack on

the medical use of marijuana does not establish preju-

dice. Danto has offered no particular facts to establish

that any such campaign exists, nor has he presented

any meaningful argument regarding how even very

zealous enforcement of the law results in unfair preju-

dice to the defense. Accordingly, no basis exists on

which to find that the admission of the other-acts

evidence would be unfairly prejudicial to Danto. We

conclude that the trial court’s exclusion of the other-

acts evidence falls outside the range of principled out-

comes.

In Docket No. 302991, the prosecution argues that

the trial court abused its discretion by barring the

admission of evidence of other acts Nater committed.

We agree. The prosecution moved to admit evidence

that Nater had sold marijuana to undercover officers at

the same café three times in the approximately one-

month period preceding the execution of the search

warrant on his and Danto’s home. As in Docket No.

302986, we agree with the prosecution that the other-

acts evidence was offered for proper purposes of estab-

lishing Nater’s knowledge of and control over the

marijuana found in his home. Like Danto, Nater was

not in the house when the search warrant was executed.

Evidence that Nater had sold marijuana on three occa-

sions in the month preceding the execution of the

search warrant and that after one of the sales he was

followed back to the house at which the marijuana was

found would tend to make it more likely that he knew

about and controlled the marijuana found in the house

and that he knew that the substance was marijuana. In

addition, the evidence was relevant to the proper pur-

pose of establishing Nater’s intent to distribute the

2011] P

EOPLE V

ANTO

603

PINION OF THE

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marijuana found in his home. Reasonable inferences

exist that the marijuana operation in Nater’s home was

the source of the marijuana that he sold on the prior

occasions and that as part of his ongoing scheme to

manufacture and sell marijuana, he intended to sell the

marijuana found in the home.

As in Danto’s case, the trial court failed to explain

why it concluded that the prejudicial effect of the

other-acts evidence substantially outweighed its proba-

tive value. Nater argued in the trial court that admit-

ting evidence of prior medical-marijuana sales and

activities while precluding references to the medical use

of marijuana at trial would deny him his constitutional

rights to confrontation and to present a defense because

he would be unable to effectively cross-examine the

officers regarding their alleged use of false medical-

marijuana cards to gain entry into the café where the

sales occurred. If this was the basis for the trial court’s

ruling, then we disagree with Nater. The right to

present a defense extends only to relevant evidence.

People v Likine, 288 Mich App 648, 658; 794 NW2d 85

(2010). The fact that undercover officers might have

used false medical-marijuana cards to gain access to the

café has no bearing on whether Nater knew about,

possessed, or intended to distribute the marijuana

found in his home. Further, no evidence exists that any

false medical-marijuana cards were ever shown to

Nater himself.

In any event, Nater has identified no provision in the

MMA that would have authorized him to sell marijuana

to the undercover officers. MCL 333.26424(b) provides

that “[a] primary caregiver who has been issued and

possesses a registry identification card shall not be

subject to arrest, prosecution, or penalty...forassist-

ing a qualifying patient to whom he or she is connected

604 294 M

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596 [Nov

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through the [Michigan Department of Community

Health’s] registration process with the medical use of

marihuana in accordance with this act....”Nater does

not claim or offer evidence that he was connected

through the department’s registration process with the

undercover officers to whom he sold marijuana. There-

fore, because the MMA did not authorize Nater’s sales

to the officers, no unfair prejudice would arise from

precluding cross-examination of those officers regard-

ing marijuana for medical use. We conclude that the

trial court abused its discretion by refusing to admit the

other-acts evidence.

In Docket Nos. 303064 and 303525, defendants argue

that the trial court erred by relying on People v King,

291 Mich App 503; 804 NW2d 911 (2011), lv gtd 489

Mich 957 (2011), to preclude defendants from raising a

defense under § 8 of the MMA, MCL 333.26428, and

from mentioning the medical use of marijuana at trial

because King conflicts with two prior decisions of this

Court. We disagree. “For an issue to be preserved for

appellate review, it must be raised, addressed, and

decided by the lower court.” People v Metamora Water

Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007).

Although Nater raised this argument in the trial court,

Danto failed to do so. Danto opposed the prosecution’s

motion on other grounds, but an objection on one

ground is insufficient to preserve an appellate argu-

ment based on a different ground. People v Bulmer, 256

Mich App 33, 35; 662 NW2d 117 (2003). Because Danto

failed to preserve this issue, our review in his case is

limited to plain error affecting substantial rights.

People v Carines, 460 Mich 750, 763-764; 597 NW2d 130

(1999). Whether King conflicts with prior decisions of

this Court is a question of law we review de novo. People

v Waclawski, 286 Mich App 634, 693; 780 NW2d 321

2011] P

EOPLE V

ANTO

605

PINION OF THE

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(2009). We also review de novo issues of statutory

construction. People v Malone, 287 Mich App 648, 654;

792 NW2d 7 (2010).

Section 4 of the MMA, MCL 333.26424, provides

various protections for qualifying patients and primary

caregivers. Section 4(a) states:

A qualifying patient who has been issued and possesses

a registry identification card shall not be subject to arrest,

prosecution, or penalty in any manner, or denied any right

or privilege, including but not limited to civil penalty or

disciplinary action by a business or occupational or profes-

sional licensing board or bureau, for the medical use of

marihuana in accordance with this act, provided that the

qualifying patient possesses an amount of marihuana that

does not exceed 2.5 ounces of usable marihuana, and, if the

qualifying patient has not specified that a primary car-

egiver will be allowed under state law to cultivate mari-

huana for the qualifying patient, 12 marihuana plants kept

in an enclosed, locked facility. Any incidental amount of

seeds, stalks, and unusable roots shall also be allowed

under state law and shall not be included in this amount.

[Emphasis added.]

Section 4(b) provides:

A primary caregiver who has been issued and possesses

a registry identification card shall not be subject to arrest,

prosecution, or penalty in any manner, or denied any right

or privilege, including but not limited to civil penalty or

disciplinary action by a business or occupational or profes-

sional licensing board or bureau, for assisting a qualifying

patient to whom he or she is connected through the

department’s registration process with the medical use of

marihuana in accordance with this act, provided that the

primary caregiver possesses an amount of marihuana that

does not exceed:

(1) 2.5 ounces of usable marihuana for each qualifying

patient to whom he or she is connected through the

department’s registration process; and

606 294 M

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596 [Nov

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(2) for each registered qualifying patient who has speci-

fied that the primary caregiver will be allowed under state

law to cultivate marihuana for the qualifying patient, 12

marihuana plants kept in an enclosed, locked facility; and

(3) any incidental amount of seeds, stalks, and unusable

roots. [Emphasis added.]

“ ‘Qualifying patient’ means a person who has been

diagnosed by a physician as having a debilitating medi-

cal condition.” MCL 333.26423(h). “ ‘Enclosed, locked

facility’ means a closet, room, or other enclosed area

equipped with locks or other security devices that

permit access only by a registered primary caregiver or

registered qualifying patient.” MCL 333.26423(c).

Section 8 of the MMA, MCL 333.26428, provides a

defense to a prosecution involving marijuana:

(a) Except as provided in section 7, a patient and a

patient’s primary caregiver, if any, may assert the medical

purpose for using marihuana as a defense to any prosecu-

tion involving marihuana, and this defense shall be pre-

sumed valid where the evidence shows that:

(1) A physician has stated that, in the physician’s

professional opinion, after having completed a full assess-

ment of the patient’s medical history and current medical

condition made in the course of a bona fide physician-

patient relationship, the patient is likely to receive thera-

peutic or palliative benefit from the medical use of mari-

huana to treat or alleviate the patient’s serious or

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition;

(2) The patient and the patient’s primary caregiver, if

any, were collectively in possession of a quantity of mari-

huana that was not more than was reasonably necessary to

ensure the uninterrupted availability of marihuana for the

purpose of treating or alleviating the patient’s serious or

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition; and

2011] P

EOPLE V

ANTO

607

PINION OF THE

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(3) The patient and the patient’s primary caregiver, if

any, were engaged in the acquisition, possession, cultiva-

tion, manufacture, use, delivery, transfer, or transportation

of marihuana or paraphernalia relating to the use of

marihuana to treat or alleviate the patient’s serious or

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition.

(b) A person may assert the medical purpose for using

marihuana in a motion to dismiss, and the charges shall be

dismissed following an evidentiary hearing where the per-

son shows the elements listed in subsection (a). [Emphasis

added.]

Section 7 of the MMA, MCL 333.26427, further limits

the medical use of marijuana:

(a) The medical use of marihuana is allowed under state

law to the extent that it is carried out in accordance with the

provisions of this act.

(b) This act shall not permit any person to do any of the

following:

(1) Undertake any task under the influence of mari-

huana, when doing so would constitute negligence or

professional malpractice.

(2) Possess marihuana, or otherwise engage in the

medical use of marihuana:

(A) in a school bus;

(B) on the grounds of any preschool or primary or

secondary school; or

(3) Smoke marihuana:

(A) on any form of public transportation; or

(B) in any public place.

(4) Operate, navigate, or be in actual physical control of

any motor vehicle, aircraft, or motorboat while under the

influence of marihuana.

608 294 M

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596 [Nov

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(5) Use marihuana if that person does not have a serious

or debilitating medical condition.

(1) A government medical assistance program or com-

mercial or non-profit health insurer to reimburse a person

for costs associated with the medical use of marihuana.

(2) An employer to accommodate the ingestion of mari-

huana in any workplace or any employee working while

under the influence of marihuana.

(d) Fraudulent representation to a law enforcement

official of any fact or circumstance relating to the medical

use of marihuana to avoid arrest or prosecution shall be

punishable by a fine of $500.00, which shall be in addition

to any other penalties that may apply for making a false

statement or for the use of marihuana other than use

undertaken pursuant to this act.

(e) All other acts and parts of acts inconsistent with this

act do not apply to the medical use of marihuana as

provided for by this act. [Emphasis added.]

In People v Redden, 290 Mich App 65; 799 NW2d 184

(2010), the majority rejected the prosecution’s argu-

ment that the affirmative defense under § 8 was un-

available because the defendants did not possess valid

registry identification cards under § 4. The majority

concluded that the MMA provides two ways to show the

legal use of marijuana for medical purposes: obtaining a

registry identification card under § 4 or remaining

unregistered and then asserting the affirmative de-

fense under § 8 if faced with prosecution. Whereas § 4

refers to a “qualifying patient” who has been issued

and possesses a registry identification card which

protects the qualifying patient from “arrest, prosecu-

tion, or penalty in any manner,” MCL 333.26424(a),

§ 8 refers only to a “patient” who may “assert the

medical purpose for using marihuana as a defense to

any prosecution involving marihuana,” MCL

2011] P

EOPLE V

ANTO

609

PINION OF THE

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333.26428(a). Thus, the majority concluded that the

two sections provide differing levels of protection, and

§ 8 may apply to a patient who does not satisfy § 4.

The

majority nonetheless affirmed the circuit court’s rever-

sal of the district court’s denial of a bindover because

“colorable issues” existed for the trier of fact regarding

elements of the § 8 defense. Redden, 290 Mich App at

85.

The majority in Redden also noted that the defen-

dants in that case did not raise the issue whether a § 8

defense was viable where the marijuana was not kept in

an enclosed, locked facility. Id. at 82 n 8. The majority

observed that the language regarding an enclosed,

locked facility was contained in § 4 rather than § 8. Id.

Nonetheless, the majority expressly declined to address

the issue without the benefit of full briefing by the

parties. Id.

In People v Kolanek, 291 Mich App 227; 804 NW2d

870 (2011), lv gtd 489 Mich 956 (2011), the Court held

that the defendant’s postarrest affidavit and his discus-

sion with his physician before the MMA was enacted

were insufficient to meet the requirements of a § 8

defense. Consequently, the Court remanded for rein-

statement of the charge of possession of marijuana,

MCL 333.7403(2)(d), but held that the MMA defense

could be raised at trial:

Because the statute does not provide that the failure to

bring, or to win, a pretrial motion to dismiss deprives the

defendant of the statutory defense before the factfinder,

defendant’s failure to provide sufficient proofs pursuant to

his motion to dismiss does not bar him from asserting the

Whether § 4(a) must be satisfied in order to assert a valid defense

under § 8(a) of the MMA is pending before our Supreme Court in People

v King, 489 Mich 957 (2011).

610 294 M

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596 [Nov

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§ 8 defense at trial nor from submitting additional proofs in

support of the defense at that time. [Kolanek, 291 Mich

App at 241-242.]

In King, 291 Mich App at 509, the majority held that

§ 8 incorporates by reference other provisions of the

MMA with which a defendant must comply where it

states “[e]xcept as provided in section 7....” The

majority concluded that the reference to § 7 in § 8, and

the requirement of § 7(a) that the medical use of

marijuana be carried out in accordance with the provi-

sions of the act required the defendant to comply with

the growing provisions in § 4. King, 291 Mich App at

510. The majority held “that because defendant did not

comply with § 4, he also failed to meet the requirements

of § 8 and, therefore, he is not entitled to the affirmative

defense in § 8 and is not entitled to dismissal of the

charges.” Id. The majority explained that an unlocked

closet and a moveable chain-link dog kennel that was

open on the top did not fall within the definition of an

enclosed, locked facility. Id. at 511-514. Thus, because

the defendant failed to comply with the requirement

that he keep the marijuana in an enclosed, locked

facility, he was subject to prosecution, and the trial

court abused its discretion in dismissing the charges.

Id. at 514.

In People v Anderson, 293 Mich App 33, 35; 809

NW2d 176 (2011),

the majority adopted a portion of

Judge M. J. K

ELLY

’s concurring opinion concluding that

a trial court may bar a defendant from arguing the

affirmative defense provided in § 8 of the MMA where

Our Supreme Court has stayed lower court proceedings, People v

Anderson, unpublished order of the Supreme Court, entered August 23,

2011 (Docket No. 143339), and held further appeal in abeyance pending

decisions in People v Kolanek (Docket Nos. 142695 and 142712) and

People v King (Docket No. 142850), People v Anderson, unpublished order

of the Supreme Court, entered September 26, 2011 (Docket No. 143339).

2011] P

EOPLE V

ANTO

611

PINION OF THE

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on the basis of the undisputed evidence no reasonable

jury could find that all the elements of § 8 were satis-

fied. Id. at 49-57 (M. J. K

ELLY

, J., concurring). Judge

ELLY

explained “that the defendant has the burden to

establish a prima facie case for his or her affirmative

defense by presenting some evidence on all the ele-

ments of that defense.” Id. at 64. If the defendant fails

to establish an element of the defense, the trial court

should not present the defense to the jury. Id. Judge

ELLY

then applied these principles to the affirmative

defense available under § 8 of the MMA:

The MMA provides an affirmative defense to prosecu-

tion for any marijuana offense, but that defense is quite

limited. Because of those limitations, there may be situa-

tions when a defendant simply cannot establish the right to

assert a § 8 defense. In such situations, a trial court might

be warranted in barring a defendant from presenting

evidence or arguing at trial that he or she is entitled to the

defense set forth in § 8(a). Therefore, I conclude that a trial

court may bar a defendant from presenting evidence and

arguing a § 8 defense at trial when, given the undisputed

evidence, no reasonable jury could find that the elements of

the § 8 defense had been met.

In this case, there is no dispute about the number of

plants that Anderson possessed or that the plants were not

kept in an enclosed, locked facility. No reasonable jury

could, therefore, find that he had 12 or fewer plants or that

the plants were in an enclosed, locked facility. Conse-

quently, no reasonable jury could acquit Anderson on the

basis of a § 8 defense. The trial court did not err when it

precluded Anderson from presenting a § 8 defense at trial.

[Id. at 64-65.]

The majority adopted this portion of Judge K

ELLY

’s

concurrence.

Under King and Anderson, then, an essential ele-

ment of a § 8 affirmative defense is the requirement in

§ 4 that the marijuana be kept in an enclosed, locked

612 294 M

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596 [Nov

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facility. Defendants contend that King conflicts with

Redden and Kolanek. As discussed, however, the Red-

den majority expressly declined to address whether a

§ 8 defense was viable where the marijuana was not

kept in an enclosed, locked facility because the issue

had not been raised or fully briefed in that case.

Redden, 290 Mich App at 82 n 8. Because the issue was

not resolved in Redden, the majority in King did not

violate MCR 7.215(J)(1), which requires following the

rule of law established by a prior, published decision of

this Court. Further, although Kolanek held that a

defendant’s failure to bring or to win a pretrial motion

to dismiss does not bar assertion of a § 8 defense at trial,

Kolanek did not eliminate the defendant’s burden of

production. See Anderson, 293 Mich App at 35 (per

curiam); id. at 63-65 (M. J. K

ELLY

, J., concurring). We

thus discern no basis to conclude that King conflicts

with either Redden or Kolanek.

Here, defendants have offered nothing to rebut the

preliminary examination testimony that the marijuana

was kept in various locations throughout defendants’

home, including in the bathroom, living room, kitchen,

bedrooms, and a basement with no door at the entrance.

Because defendants have not met their burdens of

production to establish that the marijuana was kept in

an enclosed, locked facility, MCL 333.26424, the trial

court’s order precluding assertion of the MMA affirma-

tive defense and references to the MMA at trial was not

erroneous.

Finally, in Docket No. 303525, Danto argues that the

trial court abused its discretion by denying his request

for an evidentiary hearing under the MMA. We dis-

agree. A trial court’s decision to hold an evidentiary

hearing is generally reviewed for an abuse of discretion.

People v Unger, 278 Mich App 210, 216-217; 749 NW2d

2011] P

EOPLE V

ANTO

613

PINION OF THE

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272 (2008). To the extent that this issue requires

interpretation of a provision of the MMA, this Court

reviews statutory construction issues de novo. Malone,

287 Mich App at 654. Section 8(b) of the MMA, MCL

333.26428(b), provides that “[a] person may assert the

medical purpose for using marijuana in a motion to

dismiss, and the charges shall be dismissed following an

evidentiary hearing where the person shows the ele-

ments listed in subsection (a).” This provision does not

create an automatic right to an evidentiary hearing

upon the filing of a motion to dismiss. It merely

requires dismissal of marijuana charges if the defen-

dant establishes the elements of the § 8 defense at an

evidentiary hearing. Here, the trial court did not abuse

its discretion because Danto has not identified a factual

dispute to resolve at an evidentiary hearing or estab-

lished that the marijuana was kept in an enclosed,

locked facility, as required by MCL 333.26424.

We affirm in Docket Nos. 303064 and 303525, reverse

in Docket Nos. 302986 and 302991, and remand for

further proceedings. We do not retain jurisdiction.

AAD

, J., concurred with M

ARKEY

,P.J.

LEICHER

,J.(concurring in part and dissenting in

part). I agree with the majority that the trial court

abused its discretion by precluding the prosecution’s

presentation of “other acts” evidence under MRE

404(b).

I also agree that defendants failed to adequately

support their proffered defense under the Michigan

Medical Marihuana Act (MMA), MCL 333.26421 et seq.,

requiring the exclusion of that affirmative defense.

At oral argument, defense counsel readily conceded that controlling

Michigan law construing MRE 404(b) compelled the introduction of the

prosecution’s other-acts evidence.

614 294 M

ICH

596 [Nov

PINION BY

LEICHER

,J.

However, I respectfully disagree with the majority’s

conclusion that “trial court’s order precluding assertion

of the MMA affirmative defense and references to the

MMA at trial was not erroneous.”

The trial court granted the prosecution’s motion to

preclude defendants from asserting an affirmative de-

fense under the MMA. The trial court’s order further

provides, “neither the Defendants nor their attorneys

may make any reference in the presence of the jury to

the Michigan Medical Marihuana Act or the use of the

term medical marijuana in conjunction with, or in

reference to, the marijuana in the present case.” At oral

argument, the prosecuting attorney conceded that if

this Court held the other-acts evidence admissible, a

blanket order prohibiting mention of the MMA or “the

term medical marijuana” would qualify as overbroad.

The prosecutor specifically acknowledged that mention

of the medical use of marijuana would be necessary to

explain the “res gestae” of the crime and the other-acts

evidence. Consequently, I am mystified that the major-

ity nevertheless holds that the prosecution may intro-

duce evidence invoking the term “medical marijuana,”

but the defense may not.

Defendants aptly note that

their ability to cross-examine the witnesses will be

limited to the point of absurdity if the trial court’s order

remains in place—the prosecution will be able to elicit

testimony regarding the officers’ undercover personas

as medical-marijuana purchasers, but defendants will

be precluded from repeating those terms in cross-

examination.

According to the prosecuting attorney’s oral argument, the prosecution

intends to present evidence that the police found medical-marijuana cards

when they executed a search warrant at defendants’ home. The police

acquired the other-acts evidence by using fake medical-marijuana cards to

enter a medical-marijuana dispensary, and the prosecutor admitted that

these facts would be presented to the jury in the prosecution’s case.

2011] P

EOPLE V

ANTO

615

PINION BY

LEICHER

,J.

In light of our reversal of the trial court’s other-acts

ruling, the challenged order now impermissibly limits

defendants’ ability to cross-examine the witnesses on

matters likely to be brought out on direct examination

and on matters that are potentially relevant to bias and

credibility. While a court may impose reasonable limits

on cross-examination to protect against confusion of the

issues or the introduction of only marginally relevant

evidence, a comprehensive limitation of otherwise rel-

evant cross-examination violates the Confrontation

Clause. Delaware v Van Arsdall, 475 US 673, 679; 106 S

Ct 1431; 89 L Ed 2d 674 (1986). To prevent prejudice to

defendants, I would reverse that portion of the trial

court’s March 8, 2011 one-sided order precluding defen-

dants’ reference to the MMA or “medical marijuana” at

trial.

616 294 M

ICH

596 [Nov

PINION BY

LEICHER

,J.

MACATAWA BANK v WIPPERFURTH

Docket No. 300451. Submitted November 1, 2011, at Grand Rapids.

Decided November 8, 2011, at 9:10 a.m. Leave to appeal denied,

491 Mich 915.

Macatawa Bank filed a request for garnishment in the Kent Circuit

Court seeking to satisfy a judgment against Kurt and Janice

Wipperfurth (who were domiciled in Florida) by garnishing money

from their individual retirements accounts (IRAs) held at TD

Ameritrade in Michigan. Defendants had objected to the writ of

garnishment, arguing that under Michigan caselaw the IRAs were

exempt from garnishment. The court, George S. Buth, J., rejected

defendants’ objection and granted the writ of garnishment against

defendants’ IRAs. Defendants appealed.

The Court of Appeals held:

Under MCL 600.4011(1)(a), Michigan courts may garnish per-

sonal property belonging to the person against whom the claim is

asserted that is in the possession or control of a third person if the

third person is subject to the judicial jurisdiction of the state and

the personal property to be applied is within the boundaries of this

state. In general, the situs of intangible assets such as an IRA is

the domicile of the owner unless it is fixed by some positive law.

While the circuit court had jurisdiction over TD Ameritrade,

defendants were domiciled in Florida and as such their IRAs were

not located within the boundaries of Michigan. Because there was

no statute or caselaw that altered the general rule, the IRAs did

not fall with the scope of personal property that may be garnished

by a Michigan court.

Reversed.

ARNISHMENT —

RITS OF

ARNISHMENT —

OCATION OF

NTANGIBLE

SSETS —

OMICILE OF

WNER

Michigan courts may garnish personal property belonging to the

person against whom the claim is asserted that is in the possession

or control of a third person if the third person is subject to the

judicial jurisdiction of the state and the personal property to be

applied is within the boundaries of this state; generally, the situs of

intangible assets is the domicile of the owner unless it is fixed by

some positive law (MCL 600.4011[1][a]).

2011] M

ACATAWA

ANK V

IPPERFURTH

617

Steven E. Bratschie & Associates, P.C. (by Scott Man-

cinelli and Julianna Hyatt-Wierzbicki), for Macatawa

Bank.

Law, Weathers & Richardson, P.C. (by Michael J.

Roth), for Kurt and Janice Wipperfurth.

Before: J

ANSEN

,P.J., and S

AWYER

and S

HAPIRO

,JJ.

URIAM

. Defendants in this appeal argue that

plaintiff may not garnish their individual retirement

accounts (IRAs) in Michigan. We agree and reverse the

order of the circuit court.

The facts in this case are undisputed. Defendants

reside in Florida and have not maintained a home in

Michigan for many years. On February 19, 2010, plain-

tiff obtained a judgment against defendants in the Kent

Circuit Court for $42,622.13. Plaintiff then filed a

request for garnishment with the circuit court, naming

TD Ameritrade as garnishee.

Defendants have three

IRAs with TD Ameritrade, two of which are individually

sufficient to satisfy the judgment against defendants.

Defendants objected to the writ of garnishment,

arguing that the IRAs are exempt from garnishment

under Michigan law.

The parties agree that TD Ameri-

trade is subject to jurisdiction in Michigan. The circuit

court rejected defendants’ objection without explana-

Defendants complain that plaintiff did not serve them with the writ of

garnishment. However, under MCR 3.101(F)(1) plaintiff was only re-

quired to serve the garnishee, TD Ameritrade. The garnishee was then

responsible for notifying the defendant, MCR 3.101(F)(2), which TD

Ameritrade did.

Plaintiff states that defendants did not timely file their objection.

However, MCR 3.101(K)(1) clearly states that objections may be filed

more than 14 days after a defendant is served with the writ of garnish-

ment. Late objections simply do not automatically stay payment by the

garnishee. Id.

618 294 M

ICH

617 [Nov

tion, and defendants appealed. We review de novo

questions of law. Cooper v Auto Club Ins Ass’n, 481

Mich 399, 406; 751 NW2d 443 (2008).

Defendants, who are domiciled in Florida, argue,

inter alia, that their IRAs may not be garnished in

Michigan because the IRA accounts constitute intan-

gible personal property the situs of which, under Michi-

gan law, is the state in which the owner is domiciled.

This specific argument was not raised below. Nonethe-

less, we may review an unpreserved issue if it presents

a question of law and all the facts necessary for its

resolution are before the Court. Westfield Cos v Grand

Valley Health Plan, 224 Mich App 385, 387; 568 NW2d

854 (1997). We do so in this case because the facts are

not in dispute, the issue has been fully briefed, and the

situs of the accounts presents a question that we

conclude must be answered before we can reach the

other matters considered by the circuit court.

MCL 600.4011(1)(a) describes the conditions under

which Michigan courts may garnish personal property:

[T]he court has power by garnishment to apply the

following property or obligation, or both, to the satisfaction

of a claim evidenced by contract, judgment of this state, or

foreign judgment, whether or not the state has jurisdiction

over the person against whom the claim is asserted:

(a) Personal property belonging to the person against

whom the claim is asserted but which is in the possession

or control of a third person if the third person is subject to

the judicial jurisdiction of the state and the personal

property to be applied is within the boundaries of this

state.

The parties in this case agree that the court had

jurisdiction over TD Ameritrade, but defendants argue

that their IRAs are not legally “within the boundaries of

this state.” The parties also agree that an IRA is

2011] M

ACATAWA

ANK V

IPPERFURTH

619

intangible personal property, similar to a bank account.

See In re Rapoport’s Estate, 317 Mich 291, 293, 301; 26

NW2d 777 (1947).

The longstanding rule in Michigan is that “the situs

of intangible assets is the domicile of the owner unless

fixed by some positive law.” Rapoport’s Estate, 317 Mich

at 301; see also In re Dodge Bros, 241 Mich 665, 669;

217 NW 777 (1928), Mills v Anderson, 238 Mich 643,

655-656; 214 NW 221 (1927), and 5 Michigan Civil

Jurisprudence, Conflict of Laws, § 58, p 412-413. It is

undisputed that defendants’ state of domicile is Florida.

Therefore, their IRAs are not located “within the

boundaries” of Michigan. Because plaintiff cites no

“positive law” holding that the situs of an IRA is fixed

other than by this general rule and the situs of defen-

dants’ IRAs is unquestionably Florida, the IRAs do not

fall within the scope of personal property that may be

garnished by a Michigan court.

Plaintiff argues that Rapoport’s Estate is distinguish-

able because it dealt with the distribution of property

upon death, rather than garnishment. However, the

case clearly states that the rule described earlier is the

general rule.

Plaintiff would have us instead follow Acme Contract-

ing, Ltd v Toltest, Inc, unpublished opinion of the

United States District Court for the Eastern District of

Michigan, issued October 3, 2008 (Docket No. 07-

10950), which held that the funds in a bank account

“are ‘located’ wherever they are available for with-

drawal.” We are not bound by opinions of lower federal

courts, Allen v Bloomfield Hills Sch Dist, 281 Mich App

“It should be noted...that the generally accepted rule, the situs of

intangible assets is the domicile of the owner unless fixed by some

positive law, applies to the descent and distribution of personal property.”

Rapoport’s Estate, 317 Mich at 301.

620 294 M

ICH

617 [Nov

49, 59; 760 NW2d 811 (2008), and do not agree that this

unpublished decision provides relevant guidance. The

Toltest court noted that the parties did not provide it

with “any Michigan authority” addressing the question,

and so that court did not consider our Supreme Court’s

holding in Rapoport’s Estate. Toltest’s reliance on the

fact that the bank accounts at issue were available for

withdrawal at any of the bank’s branches does not

provide a basis for us to overrule Rapoport’s Estate.

Indeed, though it may now be easier to access bank

accounts from various states, the decision in Rapoport’s

Estate does not predate this system. Plaintiff has not

cited a case or statute that altered the general rule set

forth in Rapoport’s Estate, and we are bound by that

Supreme Court precedent.

Accordingly, the IRAs are

not located in Michigan and may not be garnished by a

Michigan court.

Reversed.

ANSEN

,P.J., and S

AWYER

and S

HAPIRO

, JJ., concurred.

Plaintiff also cites cases from Georgia and Arkansas, but these are

irrelevant in the face of controlling Michigan precedent.

2011] M

ACATAWA

ANK V

IPPERFURTH

621

PEOPLE v WHITE

Docket No. 303228. Submitted September 13, 2011, at Lansing. Decided

November 15, 2011, at 9:00 a.m. Affirmed, 493 Mich ___.

Kadeem Dennis White was charged in the Jackson Circuit Court

with first-degree felony murder, MCL 750.316(1)(b), armed rob-

bery, MCL 750.529, and possession of a firearm during the

commission of a felony, MCL 750.227b, in connection with the

shooting death of Benjamin Willard. Before trial, defendant filed a

motion to suppress his inculpatory statement to the police. He

argued that the statement should have been suppressed because it

was made after asserting his right to remain silent and was made

in response to a detective’s statement that had been the functional

equivalent of interrogation under Rhode Island v Innis, 446 US

291 (1980). The court, Thomas D. Wilson, J., granted the motion to

suppress, finding that although the detective’s statement had not

been express questioning, it was the functional equivalent because

the only reason for making the comment had been to elicit a

response. The prosecution appealed the decision by delayed leave

granted.

The Court of Appeals held:

Statements made during custodial interrogations that the

defendant did not volunteer are admissible only if a suspect

voluntarily, knowingly, and intelligently waived his or her Fifth

Amendment rights. Interrogation of a suspect in custody can be

through express questioning or its functional equivalent, which

is defined as any words or actions on the part of police officers

that they should have known were reasonably likely to elicit an

incriminating response from the suspect. The focus should be

on the suspect’s perception, rather than the intent of the police,

there must be no evidence suggesting that the police were aware

that the suspect was peculiarly susceptible to an appeal to a

suspect’s conscience or was unusually disoriented or upset at

the time, and the conversation must have been short with no

lengthy or passionate speech. The trial court’s determination

that the detective had not expressly questioned the defendant

after he invoked his right to an attorney was not clearly

erroneous. The trial court also did not err by finding that the

622 294 M

ICH

622 [Nov

detective’s statements did not constitute the functional equiva-

lent of interrogation. Before defendant’s inculpatory statement,

the detective specifically informed defendant that he was not

asking defendant any questions, but was merely telling defen-

dant that he hoped the gun used in the charged offense was in

a place where no one could find it and be hurt. Nothing in the

record indicated that the detective was aware of any peculiar

susceptibility of defendant, and the detective had not made a

lengthy speech. Given these facts, the detective would not have

reasonably expected that defendant would suddenly make a

self-incriminating statement in response to the remark.

Reversed.

HAPIRO

,P.J., dissenting, would have affirmed the trial court’s

order to suppress defendant’s statement, concluding that the

detective’s actions constituted express questioning, or at least its

functional equivalent. The detective’s comments were unequivo-

cally and expressly directed to defendant, and he expressly invited

a response from defendant.

ONSTITUTIONAL

AW —

ELF

-I

NCRIMINATION —

USTODIAL

NTERROGATIONS —

XPRESS

UESTIONING OR

UNCTIONAL

QUIVALENT

The right against compelled self-incrimination is guaranteed by both

the United States and Michigan Constitutions; statements made

during custodial interrogations that the defendant did not volun-

teer are admissible only if a suspect voluntarily, knowingly, and

intelligently waived his or her Fifth Amendment rights; interro-

gation of a suspect in custody can be through express questioning

or its functional equivalent, which is defined as any words or

actions on the part of police officers that they should have known

were reasonably likely to elicit an incriminating response from the

suspect; the focus should be on the suspect’s perception, rather

than the intent of the officers; there must be no evidence suggest-

ing that the police officers were aware that the suspect was

peculiarly susceptible to an appeal to his or her conscience, or was

unusually disoriented or upset at the time, and the conversation

must have been short with no lengthy or passionate speech (US

Const, Am V; Const 1963, art 1, § 17).

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Henry C. Zavislak, Prosecuting At-

torney, and Jerrold Schrotenboer, Assistant Prosecuting

Attorney, for the people.

2011] P

EOPLE V

HITE

623

Rappleye & Rappleye, P. C . (by Robert K. Gaecke, Jr.),

for defendant.

Before: S

HAPIRO

,P.J., and W

ILDER

and M

URRAY

,JJ.

URRAY

, J. Plaintiff appeals by leave granted the trial

court’s March 8, 2011, order granting defendant’s mo-

tion to suppress his statement to police. We reverse and

remand for further proceedings.

I. BACKGROUND

Defendant was charged with first-degree felony

murder, MCL 750.316(1)(b), armed robbery, MCL

750.529, and possession of a firearm during the

commission of a felony, MCL 750.227b, arising from

the shooting death of Benjamin Willard. The prosecu-

tor’s theory was that defendant attempted to rob

Willard at gunpoint and when Willard resisted, de-

fendant shot him. After defendant was arrested, he

was provided his warnings under Miranda v Arizona,

384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), and

he asserted his right to remain silent. In response,

the following occurred between the interviewing de-

tective (Detective Stiles) and defendant:

[Detective Stiles]: Okay. [T]his is what they call the

acknowledgment and waiver paragraph I’m going to read

this to you. If you wish to talk to me, I’m going to need you

to sign and date the form. Even though you sign and date

the form, you still have your rights to stop at any time you

wish. Do you understand that?

[The Defendant]: No. No thank you sir. I’m not going to

sign it.

[Detective Stiles]: Okay. Okay. Sounds good.

[The Defendant]: I don’t even want to speak.

[Detective Stiles]: I understand. I understand Kadeem.

624 294 M

ICH

622 [Nov

PINION OF THE

OURT

Okay then. The only thing I can tell you Kadeem, is good

luck man.

Okay. Don’t take this personal. It’s not personal be-

tween me and you, I think I may have had one contact with

you on the street. Okay. I’ve got to do my job. And I

understand you’ve got to [do] what you’ve got to do to

protect your best interests. Okay.

The only thing that I can tell you is this, and I’m not

asking you questions, I’m just telling you. I hope that the

gun is in a place where nobody can get a hold [sic] of it and

nobody else can get hurt by it, okay?

All right?

[The Defendant]: I didn’t even mean for it to happen like

that. It was a complete accident.

[Detective Stiles]: I understand. I understand.

But like I said, you, uhh, you get your attorney, man.

Hey, look dude, I don’t think you’re a monster, all right?

I don’t think that. You could have came down to me and

turned yourself in and there ain’t no damn way I’d beat you

up.

[The Defendant]: Yeah.

[Detective Stiles]: Okay, man?

You all set, you straight with me?

Who knows you’re here? Who knows of your family?

Because I know a lot of your family in town now.

[The Defendant]: (unintelligible reply). I know that I

didn’t mean to do it. I guarantee that, I know I didn’t mean

to do it. [Emphasis added.]

Defendant moved to suppress his statement arguing

that the detective’s statement constituted the func-

tional equivalent of interrogation under Rhode Island v

Innis, 446 US 291; 100 S Ct 1682; 64 L Ed 2d 297

(1980). The trial court agreed, focusing on the pre-

sumed purpose of the question, which was inferred

2011] P

EOPLE V

HITE

625

PINION OF THE

OURT

from the fact that the detective made the statement

directly to defendant:

Or where Innis does appear to be on point, the case

concludes that Miranda safeguards are applicable when-

ever a person in custody is subject to either expressed

questioning or its functional equivalent. Now, in this case

there’s no dispute that defendant was in custody and I

think anybody reviewing the tape would find that the

officer’s statement was not expressed questioning, not in the

way that it was worded. Then we come to the other portion

where the Court identified the functional equivalent, any

words or actions on part of the police other than those

normally intended to arrest in custody, that the police

should know or reasonably likely to elicit an incriminating

response for the suspect.... The ultimate question is

whether the officer should have known that such a response

would be the result of his statement. And, in this particular

case it’s difficult to find another reason for making the

statement, the officer made the statement while looking

directly at the defendant.... Now, (Inaudible) – made

distinction in Innis is that the officers were speaking to

each other. Here the officer and the defendant were the only

ones in the room, it may have been reasonable to make a

similar statement to any other person within the defen-

dant’s hearing and not expect a response, but when the

statement is made directly to the defendant while looking

directly at him it suggest [sic] that the remark was designed

to elicit a response as to the location of the gun. Therefore,

the [c]ourt is granting the motion to suppress on self-

incrimination grounds. The only reasonable interpretation of

the officer’s statement at that point appears to be [de]signed

to elicit information about the location of the gun. The

information qualifies as an incriminating statement and the

statement qualifies as the functional equivalent of expressed

questioning, because it occurred after the defendant invoked

his right to remain silent. It must be suppressed, however it

can be used for impeachment purposes should your client

take the witness stand. [Emphasis added.]

626 294 M

ICH

622 [Nov

PINION OF THE

OURT

Based on this ruling on the record, the trial court

ordered defendant’s subsequent statements sup-

pressed. It is from that order that we granted leave to

appeal.

II. ANALYSIS

This Court reviews a trial court’s ruling on a motion

to suppress evidence for clear error; it reviews atten-

dant questions of law de novo. People v Hawkins, 468

Mich 488, 496; 668 NW2d 602 (2003); People v Sobczak-

Obetts, 463 Mich 687, 694; 625 NW2d 764 (2001); People

v Unger, 278 Mich App 210, 243; 749 NW2d 272 (2008).

What this means is that if factual findings are made by

the trial court in relation to the motion to suppress, we

defer to those findings by use of the clearly erroneous

standard of review. People v Kowalski, 230 Mich App

464, 471-472; 584 NW2d 613 (1998). The application of

those facts to the constitutional provision at issue—the

Fifth Amendment to the United States Constitution—is

a legal determination to which we owe no deference to

the trial court, and therefore we apply a de novo

standard of review to the ultimate conclusion. Id.; see

also People v Stevens (After Remand), 460 Mich 626,

631; 597 NW2d 53 (1999), quoting People v Nelson, 443

Mich 626, 631 n 7; 505 NW2d 266 (1993) (“ ‘Application

of constitutional standards by the trial court is not

entitled to the same deference as factual findings.’ ”).

The right against compelled self-incrimination is

guaranteed by both the United States and Michigan

Constitutions. US Const, Am V; Const 1963, art 1, § 17;

People v Tierney, 266 Mich App 687, 707; 703 NW2d 204

(2005). Non-volunteered statements made during cus-

todial interrogations are admissible only if a defendant

voluntarily, knowingly, and intelligently waived his

Fifth Amendment rights. People v Akins, 259 Mich App

2011] P

EOPLE V

HITE

627

PINION OF THE

OURT

545, 564; 675 NW2d 863 (2003). There is no dispute

that defendant was in custody at the time he made the

statement, and that he had previously invoked his right

to remain silent. Thus, the only question is whether the

trial court erred by concluding that the detective’s

comments to defendant regarding the location of the

gun constituted the “functional equivalent of interro-

gation.”

We agree with the prosecution that the United States

Supreme Court’s decision in Innis, 446 US at 291,

mandates reversal of the trial court’s order suppressing

defendant’s statement. In Innis, three police officers

were transporting the respondent to the police station

following his arrest. While en route, one of the officers

commented that “there’s a lot of handicapped children

running around in this area, and God forbid one of

them might find a weapon with shells and they might

hurt themselves,” and that it would be “too bad” if a

girl picked up the gun used in the armed robbery in

which the respondent was a suspect and killed herself.

Id. at 294-295. A second officer also expressed his

concern about the location of the weapon. Id. at 295.

The respondent, having previously been advised of his

Miranda rights, “interrupted the conversation, stating

that the officers should turn the car around so he could

show them where the gun was located.” He then

directed the officers to the gun, which he had hidden in

a field near the location of his arrest. Id. at 294-295.

The Supreme Court concluded that the respondent

was not subjected to interrogation, within the meaning

of Miranda, when being subjected to the conversation

between the officers. Innis, 446 US at 302-303. The

Court first explained that

the Miranda safeguards come into play whenever a person

in custody is subjected to either express questioning or its

628 294 M

ICH

622 [Nov

PINION OF THE

OURT

functional equivalent. That is to say, the term “interroga-

tion” under Miranda refers not only to express question-

ing, but also to any words or actions on the part of the

police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely

to elicit an incriminating response from the suspect. The

latter portion of this definition focuses primarily upon the

perceptions of the suspect, rather than the intent of the

police. This focus reflects the fact that the Miranda safe-

guards were designed to vest a suspect in custody with an

added measure of protection against coercive police prac-

tices, without regard to objective proof of the underlying

intent of the police. A practice that the police should know

is reasonably likely to evoke an incriminating response

from a suspect thus amounts to interrogation. But, since

the police surely cannot be held accountable for the unfore-

seeable results of their words or actions, the definition of

interrogation can extend only to words or actions on the

part of police officers that they should have known were

reasonably likely to elicit an incriminating response. [Id.at

300-302].

It then concluded that the respondent was not “inter-

rogated” as contemplated by Miranda:

It is undisputed that the first prong of the definition of

“interrogation” was not satisfied, for the conversation

between [the officers] included no express questioning of

the respondent. Rather, that conversation was, at least in

form, nothing more than a dialogue between the two

officers to which no response from the respondent was

invited. [Id. at 302.]

With respect to whether the respondent was subject

to the “functional equivalent” of questioning (which is

what the trial court in our case found), the Innis Court

held that given (1) there was no evidence suggesting the

police were aware that respondent was peculiarly sus-

ceptible to an appeal to his conscience or that respon-

dent was unusually disoriented or upset at the time, (2)

the conversation consisted of only a few short remarks,

2011] P

EOPLE V

HITE

629

PINION OF THE

OURT

(3) there was not a “lengthy harangue” in the presence

of the respondent and (4) the comments were not

particularly evocative, the officers should not have

known that the respondent would move to make a

self-incriminating statement:

The case thus boils down to whether, in the context of a

brief conversation, the officers should have known that the

respondent would suddenly be moved to make a self-

incriminating response. Given the fact that the entire

conversation appears to have consisted of no more than a

few off hand remarks, we cannot say that the officers

should have known that it was reasonably likely that Innis

would so respond. This is not a case where the police

carried on a lengthy harangue in the presence of the

suspect. Nor does the record support the respondent’s

contention that, under the circumstances, the officers’

comments were particularly “evocative.” It is our view,

therefore, that the respondent was not subjected by the

police to words or actions that the police should have

known were reasonably likely to elicit an incriminating

response from him. [Innis, 446 US at 303.]

Since Innis a number of cases have established that

in general an officer’s statements that provide a defen-

dant with information about the charges against him,

about inculpatory evidence located by the police, or

about statements made by witnesses or codefendants,

which allow a defendant to make an informed and

intelligent reassessment of his decision whether to

speak to the police, do not constitute interrogation. See

Kowalski, 230 Mich App at 468, 483-484; People v

McCuaig, 126 Mich App 754, 759-760; 338 NW2d 4

(1983); United States v Hurst, 228 F3d 751, 760 (CA 6,

2000).

In our order granting leave to appeal, this Court directed the parties

to address “the application of New York v Quarles, 467 US 649 [104 S Ct

2626; 81 L Ed 2d 550] (1984) and its progeny to the facts of this case.”

Upon further review, we agree with the parties that the public safety

630 294 M

ICH

622 [Nov

PINION OF THE

OURT

Here, the trial court found that the detective did not

expressly question defendant after he invoked his right

to silence, a finding that is not clearly erroneous, so we

are left to apply the Innis considerations in determining

whether the detective engaged in “its functional equiva-

lent.” Innis, 446 US at 300-301. Keeping in mind the

type of “psychological ploys” that the Innis and

Miranda courts were concerned about when addressing

tactics that may be the functional equivalent of express

questioning, see Innis, 446 US at 299-302, Miranda;

384 US at 453-455; United States v Kimbrough, 477 F3d

144, 148 (CA 4, 2007), we hold under these facts that

Detective Stiles’s comment did not constitute the func-

tional equivalent of express questioning.

Or, stated in the terms of the test articulated by the

Innis court, we conclude that Detective Stiles should

not have known that defendant would suddenly make a

self-incriminating statement in response to his one

remark. Innis, 446 US at 302. The Supreme Court tells

us that our focus should primarily be on the perception

of defendant, rather than the intent of Detective Stiles.

Pennsylvania v Muniz, 496 US 582, 601-602; 110 S Ct

2638; 110 L Ed 2d 528 (1990).

For one, the detective

specifically told defendant that he was not asking him

any questions, but was instead “telling” him that he

hoped the gun was not found by anyone who could get

hurt. Hence, in reviewing what defendant would have

perceived from the statement in its context, the use of

“okay” and “all right” can reasonably be seen as seek-

ing confirmation from defendant that he heard the

cursory comment, and not to elicit a response. People v

exception set forth in Quarles and its progeny was not implicated by the

facts and circumstances presented here.

Detective Stiles intent would be relevant if it revealed his awareness

of any particular sensitivity defendant had to the statement made,

Muniz, 496 US at 601, but there is no evidence on this issue.

2011] P

EOPLE V

HITE

631

PINION OF THE

OURT

Raper, 222 Mich App 475, 480-481; 563 NW2d 709

(1997). Thus, Detective Stiles did not direct any ques-

tion to defendant, but merely articulated his concern to

him.

Additionally, nothing in the record suggests that the

detective was aware of any peculiar susceptibility of

defendant (or that he even had any). So, focusing on

what defendant would have perceived from the state-

ment in its context, we can only conclude that Detective

Stiles should not have reasonably expected defendant to

make an incriminating statement. After all, Detective

Stiles had already told defendant both that he was not

asking a question and that he understood defendant’s

invocation of his right to remain silent. Amidst these

other permissible comments—and absent any known

sensitivities of defendant—it would not be reasonable

to conclude that the one comment about the possibility

of the gun being located and endangering others would

result in a statement about the crime itself. Just as

importantly, this “is not a case where the police carried

on a lengthy harangue in the presence of” defendant,

nor was Detective Stiles’s comment “evocative.” Innis,

446 US at 302-303. And these latter two points make

any distinction between a direct remark made to defen-

dant and a defendant overhearing remarks between

police as in Innis insufficient to come to a different

constitutional conclusion. See Fleming v Metrish, 556

F3d 520, 527 (CA 6, 2009).

The dissent asserts that we have applied different

standards of review to the two conclusions of the trial

court.

We again note the well-settled principle that in an

appeal of an order denying or granting a motion to

suppress, our review of any findings of fact is for clear

error. People v Attebury, 463 Mich 662, 668; 624 NW2d

632 294 M

ICH

622 [Nov

PINION OF THE

OURT

912 (2001). But, to the extent that we must apply

uncontested facts to constitutional standards, our re-

view is de novo. Id. Here, in deciding whether the

detective asked defendant an express question, we are

not guided by constitutional or other legal standards.

Instead, whether a question was asked involves a fact-

intensive inquiry that must be made by the trial court

in the first instance. Hence, we apply the clear error

standard to that finding. Raper, 222 Mich App at 481

(clearly erroneous standard applied by this Court in

reviewing factual findings that express questioning did

not occur).

Because the only evidence submitted to the trial

court on the motion to suppress was the audio/video

disk, and that is something that we can review as easily

as the trial court, the clearly erroneous standard may

not even apply to the trial court’s finding that defen-

dant was not subjected to express questioning. See

Harbor Park Market, Inc v Gronda, 277 Mich App 126,

130 n 1; 743 NW2d 585 (2007), citing People v Zahn, 234

Mich App 438, 445-446; 594 NW2d 120 (1999) (courts

need not defer when the trial court reviewed the same

record as this Court). Even under a de novo review of

the evidence, however, we conclude, as did the trial

court, that no express questioning occurred. After de-

fendant invoked his right to remain silent, the detective

informed defendant that he was not asking anymore

questions and was only going to make a statement. The

brief statement was made, and though the detective

stated “okay” and “alright” after the statement, the

video makes clear that in context the detective was

seeking affirmation that defendant heard the state-

ment, not that he was seeking a response to the

statement. And the detective’s response once defendant

blurted out an incriminating statement shows he had

not intended that there be any sort of substantive

2011] P

EOPLE V

HITE

633

PINION OF THE

OURT

response to the statement. Consequently, there was no

express questioning of defendant.

As far as whether the detective engaged in the

“functional equivalent” of questioning, this requires

application of a constitutional standard articulated by

the Innis court to the undisputed facts. These undis-

puted facts include that no express question was asked

by the detective—a necessary factual finding—for if an

express question was asked, there would be no need to

determine if its functional equivalent occurred. In any

event, since we review de novo the application of a

constitutional standard to undisputed facts, our stan-

dard of review on this issue is different than that

applicable to the initial question of whether an express

question was asked. And, of course, as the parties

themselves recognize, the ultimate decision on a motion

to suppress is reviewed de novo. People v Darwich, 226

Mich App 635, 637; 575 NW2d 44 (1997).

The dissent’s disagreement with our conclusion

that the detective did not engage in the functional

equivalent of express questioning is based primarily

upon the fact that a “word of inquisition” was added

at the end of his statement, that there was a pause

after the statement, and that the comments were

made directly to defendant when defendant was alone

with the detective. These factors are unconvincing.

For one, they do not address the factors outlined in

Innis, i.e., there is no suggestion by the dissent that

the detective should have known that defendant

“would suddenly be moved to make a self-

incriminating response,” Innis, 446 US at 303, or that

the detective carried on a “lengthy harangue” of

defendant, id, or that the statement was “particularly

‘evocative.’ ” Id. These factors were critical to the

Supreme Court’s creation of the functional equiva-

634 294 M

ICH

622 [Nov

PINION OF THE

OURT

lent standard, Kimbrough, 477 F3d at 150-152, and

the dissent simply does not address them.

Additionally, the federal courts have repeatedly held

that revealing evidence or other facts directly to the

defendant does not constitute the functional equivalent

of questioning, absent any of the other Innis criteria.

See, for example, Fleming, 556 F3d at 527; Acosta v

Artuz, 575 F3d 177, 191-192 (CA 2, 2009), and cases

cited therein. It is certainly commonplace for a police

officer to inform a defendant—after invoking his right

to remain silent—about facts surrounding the investi-

gation, possible penalties from a conviction, etc, and

nothing in the brief comment by the detective supports

a conclusion that defendant was interrogated in viola-

tion of Miranda. The fact that one could glean some

“subtle compulsion” from the circumstances surround-

ing the statement is not enough, as a matter of law, to

find interrogation. Arizona v Mauro, 481 US 520, 528-

529; 107 S Ct 1931; 95 L Ed 2d 458 (1987); Innis, 446

US at 300-303; Kimbrough, 477 F3d at 148-152.

Reversed and remanded for further proceedings. We

do not retain jurisdiction.

ILDER

, J., concurred with M

URRAY

,J.

HAPIRO

,P.J. (dissenting). Because the detective’s

actions constituted express questioning, or at the very

least, the functional equivalent thereof, I would affirm

the trial court’s suppression of defendant’s statements.

Therefore, I respectfully dissent.

The dissent’s concern that the prosecution offered no explanation

for why the statement was made, implying that “why else would the

police do that” other than to obtain a response, is not a relevant

consideration under the law. United States v Fortes, 2008 WL 4219493

(D RI, 2008).

2011] P

EOPLE V

HITE

635

ISSENTING

PINION BY

HAPIRO

,P.J.

After defendant was arrested he was transported to

the police station and placed in an interrogation room.

After several minutes, a detective entered the room. He

advised defendant of his Miranda

rights and defendant

unequivocally asserted his right to remain silent. De-

fendant declined to sign the acknowledgement and

waiver form, stating: “No thank you sir. I’m not going

to sign it....Idon’t even want to speak.” Rather than

terminating the interview at that time, the interview-

ing detective then said:

Okay then. The only thing I can tell you Kadeem, is good

luck man. Okay. Don’t take this personal. It’s not personal

between me and you. I think I may have had one contact

with you on the street. Okay. I’ve got to do my job. And I

understand you’ve got to do what you’ve got to [do] to

protect your best interests. Okay. The only think I can tell

you is this, and I’m not asking you questions, I’m just

telling you. I hope that the gun is in a place where nobody

can get a hold of it and nobody can get hurt by it, okay?

These remarks were followed by a pause of several

seconds during which the detective remained at the

table, opposite defendant. The officer then said “all

right?” and at that point, defendant made an inculpa-

tory statement.

The parties do not dispute the facts and as noted, the

events were recorded.

The facts being uncontested, the

matter is purely one of law, i.e., the application of a

The interrogation room was equipped with a video camera. The

recording of the interaction between the investigating officer and defen-

dant is part of the record and was reviewed by the trial court and by this

Court.

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

While both we and the trial court have reviewed the videotape, a

transcript was also provided by defense counsel and no objection to the

transcript was made by the prosecution.

636 294 M

ICH

622 [Nov

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PINION BY

HAPIRO

,P.J.

constitutional standard to uncontested facts and so our

review is de novo. People v Attebury, 463 Mich 662, 668;

624 NW2d 912 (2001).

The dispositive case in this matter is Rhode Island v

Innis, 446 US 291; 100 S Ct 1682; 64 L Ed 2d 297

(1980). In Innis, three police officers were transporting

the defendant to a police station following his arrest.

While en route, one of the officers commented to

another officer that “there’s a lot of handicapped chil-

dren running around in this area, and God forbid one of

them might find a weapon with shells and they might

hurt themselves,” and that it would be “too bad” if a

girl picked up the gun used in the armed robbery of

which the defendant was a suspect and killed herself.

Id. at 294-295. A second officer also expressed his

concern about the location of the weapon. Id. at 295.

The defendant, having been previously advised of his

Miranda rights on three separate occasions, “inter-

rupted the conversation, stating that the officers should

turn the car around so he could show them where the

gun was located.” He then directed the officers to the

gun, which he had hidden in a field near the location of

his arrest. Id. at 294-295.

The United States Supreme Court concluded that the

defendant was not subjected to interrogation, within

The majority appears to apply differing standards of review to the

trial court’s conclusions whether express questioning occurred and

whether the functional equivalence of questioning occurred. On the issue

of express questioning the majority opines that the clear error standard

of review of that conclusion is appropriate, while it reviews de novo the

issue of the functional equivalence of questioning. What we are to review

is the trial court’s conclusion that the officer violated the defendant’s

explicitly asserted right to remain silent and the facts are wholly

undisputed. Thus, there is no basis to apply different standards of review

as to the trial court’s conclusions regarding what constitutes explicit

questioning as opposed to what constitutes the functional equivalence of

questioning.

2011] P

EOPLE V

HITE

637

ISSENTING

PINION BY

HAPIRO

,P.J.

the meaning of Miranda, by virtue of the conversation

between the officers. Id. at 302-303. Such is not the case

here. While the detective’s comments to defendant were

similar in content to comments made during the con-

versation between the officers in Innis, unlike in that

case, here they were expressly and unequivocally di-

rected to defendant. Further, in Innis, the Court found

that “[t]he record in no way suggest[ed] that the

officers’ remarks were designed to elicit a response”

from the defendant. Id. at 303 n 9. In contrast, in this

case the detective expressly invited a response from

defendant, by speaking directly to him, looking directly

at him, by adding the question “okay?” at the end of his

comment regarding the location of the gun and then

pausing for several seconds as if waiting for a response.

The detective’s preface that he was “not asking ques-

tions” is belied by the fact that he asked defendant a

question. To permit officers to ask direct questions of

defendants so long as they preface it with “I’m not

asking you any questions, but...”istomake a mockery

of Miranda. The detective and the defendant were the

only persons present in the room at the time of the

interview; the detective looked directly at, and spoke

directly to, defendant; and the detective concluded his

remarks regarding the location of the gun with the

question “okay?” These undisputed facts all support the

conclusion that the detective’s remarks constituted

express questioning.

The majority notes that in two cases we have held it permissible, after

the right to remain silent has been asserted, for an officer to “provide a

defendant with information about the charges against him, about inclu-

patory evidence located by the police, or about statements made by

witnesses or codefendants, which allow a defendant to make an informed

and intelligent reassessment of his decision whether to speak to the

police....”Ante at 630. However, the officer’s comments in this case did

not provide defendant with information about the charges against him,

about inclupatory evidence the police possessed, or about witness

638 294 M

ICH

622 [Nov

ISSENTING

PINION BY

HAPIRO

,P.J.

Moreover, even if the detective’s remarks could,

somehow, be construed as not asking defendant a ques-

tion, the detective’s remarks certainly constituted the

functional equivalent of express questioning. In Innis,

the Supreme Court instructed that the intent of the

police is relevant to the extent that “it may well have a

bearing on whether the police should have known that

their words or actions were reasonably likely to evoke

an incriminating response.” Innis, 446 US at 301 n 7.

Indeed, the conclusion that the defendant had not been

interrogated in Innis was based, in part, on the policy

decision that “the police surely cannot be held account-

able for the unforeseeable results of their words or

actions....”Id. at 301-302. Rather, “the definition of

interrogation can extend only to words or actions on the

part of police officers that they should have known were

reasonably likely to elicit an incriminating response.”

Id. at 302.

The content of the detective’s comments, including

the word of inquisition added at the end, followed by the

pause of several seconds, together with the fact that the

comments were made directly to defendant and in the

presence only of defendant, demonstrate that the detec-

tive knew or should have known that his comments and

actions were reasonably likely to elicit a response from

defendant. Indeed, it is difficult to conceive of another

reason and notably, no other reason has been proffered

by the prosecution. “A party may not merely announce

statements. The officer’s comments did not offer any new information

that could provide a basis for an intelligent reassessment of the defen-

dant’s decision to remain silent. Moreover, unlike in this case, in People

v Kowalski, 230 Mich App 464; 584 NW 2d 613 (1998) (cited by the

majority to support this argument), it was only after more than an hour

had passed and defendant had spoken to a friend on the phone that the

police gave defendant an opportunity to “reassess” whether he wanted to

speak with the officers.

2011] P

EOPLE V

HITE

639

ISSENTING

PINION BY

HAPIRO

,P.J.

a position and leave it to this Court to discover and

rationalize the basis for the claim.” Nat’l Waterworks,

Inc v Int’l Fidelity & Surety, Ltd, 275 Mich App 256,

265; 739 NW2d 121 (2007).

The detective engaged in either explicit questioning

or the functional equivalence of questioning and the

trial court properly suppressed the defendant’s state-

ments. I would affirm.

640 294 M

ICH

622 [Nov

ISSENTING

PINION BY

HAPIRO

,P.J.

STATE TREASURER v SNYDER

Docket No. 298554. Submitted September 13, 2011, at Detroit. Decided

November 29, 2011, at 9:00 a.m.

The State Treasurer brought an action in the Berrien Circuit

Court against Wayne Snyder, a prisoner subject to the jurisdic-

tion of the Michigan Department of Corrections, under the

State Correctional Facility Reimbursement Act (SCFRA), MCL

800.401 et seq., to recover, as reimbursement for the cost of his

incarceration, 90 percent of the $2,500 Snyder received as the

beneficiary of his mother’s life insurance policy. Snyder re-

sponded by filing a disclaimer of property interest pursuant to

the Disclaimer of Property Interests Law (DPIL), MCL

700.2901 et seq., purporting to disclaim any interest he had in

the proceeds of the life insurance policy. Snyder asserted that he

was entitled to summary disposition because of the disclaimer.

The court, John E. Dewane, J., disagreed, concluding that

Snyder could not disclaim his interest under the DPIL because

he knew that the insurance proceeds had been deposited into his

prison account and had accepted the proceeds before filing his

purported disclaimer. The court ordered that 90 percent of the

$2,500 be applied toward reimbursing the state under the

SCFRA. Snyder appealed by delayed leave granted.

The Court of Appeals held:

The SCFRA authorizes the filing of a complaint in the circuit

court to secure reimbursement from the assets of a prisoner for

the expenses incurred by the state for the cost of care of the

prisoner during the entire period of his or her incarceration.

Under the SCFRA, “assets” include property, tangible or intan-

gible, real or personal, belonging to or due a prisoner from any

source whatsoever. Thus, proceeds a prisoner is due from a life

insurance policy are considered an asset for purposes of the

SCFRA. Under the DPIL, a person may disclaim a disclaimable

interest, which the DPIL defines as including property and the

right to receive property. However, the right to disclaim a

property interest is not absolute; it is barred to the extent

provided by other applicable law. Under the SCFRA, the attor-

ney general may use any remedy, interim order, or enforcement

2011] S

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REASURER V

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641

procedure allowed by law or court rule to prevent a prisoner

from disposing of assets, and the circuit court presiding over an

SCFRA action may appoint a receiver to protect and maintain

assets pending resolution of the action. The authority conferred

on the attorney general and the circuit court suggests a legis-

lative intent to bar a prisoner from alienating his or her

ownership interest in any assets that may be subject to confis-

cation under the SCFRA. Thus, a prisoner may not avoid the

confiscation of his or her assets by disclaiming interest in the

assets pursuant to the DPIL. Rather, assets are subject to the

SCFRA if they belong to, or are due to, the prisoner. In this case,

once Snyder’s mother died, the life insurance proceeds became

due to Snyder and were thus assets subject to the SCFRA.

Snyder could not avoid his liability under the SCFRA through

disclaimer of the proceeds, and the trial court properly declared

that the disclaimer was void, albeit for the wrong reason.

Affirmed.

RISONS AND

RISONERS —

EIMBURSEMENT OF

OSTS OF

NCARCERATION —

IFE

NSURANCE

ROCEEDS —

ISCLAIMERS OF

NTEREST

The State Correctional Facility Reimbursement Act (SCFRA) autho-

rizes the filing of a complaint in the circuit court to secure

reimbursement from the assets of a prisoner for the expenses

incurred by the state for the cost of care of the prisoner during the

entire period of his or her incarceration; under the SCFRA,

“assets” include property, tangible or intangible, real or personal,

belonging to or due a prisoner from any source whatsoever;

proceeds a prisoner is due from a life insurance policy are

considered an asset for purposes of the SCFRA; under the Dis-

claimer of Property Interests Law (DPIL), a person may disclaim

a disclaimable interest, which the DPIL defines as including

property and the right to receive property; however, the right to

disclaim a property interest is not absolute; it is barred to the

extent provided by other applicable law; under the SCFRA, the

attorney general may use any remedy, interim order, or enforce-

ment procedure allowed by law or court rule to prevent a prisoner

from disposing of assets, and the circuit court presiding over an

SCFRA action may appoint a receiver to protect and maintain

assets pending resolution of the action; the authority conferred on

the attorney general and the circuit court suggests a legislative

intent to bar a prisoner from alienating his or her ownership

interest in any assets that may be subject to confiscation under the

SCFRA; thus, a prisoner may not avoid the confiscation of his or

her assets by disclaiming interest in the assets pursuant to the

642 294 M

ICH

641 [Nov

DPIL; rather, assets are subject to the SCFRA if they belong to, or

are due to, the prisoner (MCL 700.2901 et seq., MCL 800.401 et

seq.).

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Richard A. Bandstra, Chief Legal

Counsel, and Juandisha Harris, Assistant Attorney

General, for the State Treasurer.

Wayne Snyder in propria persona.

Before: R

ONAYNE

RAUSE

,P.J., and C

AVANAGH

and

ANSEN

,JJ.

URIAM

. Defendant, Wayne Snyder, appeals by

delayed leave granted an order holding that his pur-

ported disclaimer of life insurance proceeds was void

and directing that 90 percent of those proceeds be paid

to plaintiff, the State Treasurer, in partial reimburse-

ment for the cost of defendant’s incarceration as man-

dated by the State Correctional Facility Reimbursement

Act (SCFRA), MCL 800.401 et seq. We affirm.

Defendant has been incarcerated since 1999 at a

substantial cost to the state of Michigan and its citizens.

Thus, when defendant received $2,500 as the benefi-

ciary of his mother’s life insurance policy, plaintiff filed

a complaint against him under the SCFRA, seeking

partial reimbursement for the costs associated with his

incarceration. See MCL 800.404(1). Defendant re-

sponded to plaintiff’s complaint by filing a disclaimer of

property interest pursuant to the Disclaimer of Prop-

erty Interests Law (DPIL), MCL 700.2901 et seq., pur-

porting to disclaim any and all interest in the proceeds

of his mother’s life insurance policy. Then defendant

filed a motion for summary disposition pursuant to

MCR 2.116(C)(10), arguing that dismissal of plaintiff’s

case was necessary because he had disclaimed his

2011] S

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NYDER

643

interest in the insurance proceeds.

Plaintiff opposed

the motion, arguing that defendant was barred by the

SCFRA from disclaiming his interest in the insurance

proceeds and, in the alternative, that he could not

disclaim his interest under the DPIL because he had

received the proceeds before he filed his purported

disclaimer. See MCL 700.2910(1)(c).

The circuit court agreed with plaintiff, holding that

defendant could not disclaim his interest under the

DPIL because he knew that the insurance proceeds had

been deposited into his prison account and had accepted

the proceeds before filing his purported disclaimer. See

MCL 700.2910(1)(c). Because defendant’s disclaimer

was void, the court ordered that 90 percent of the

$2,500 be applied toward reimbursing the state as

provided in SCFRA. A final order consistent with the

court’s opinion followed and the case was dismissed.

Thereafter, defendant filed a delayed application for

leave to appeal with this Court, which was granted.

State Treasurer v Snyder, unpublished order of the

Court of Appeals, entered December 13, 2010 (Docket

No. 298554).

On appeal, defendant argues that he had the right to

disclaim his interest in the insurance policy proceeds

after being sued by plaintiff; therefore, the circuit court

decision must be reversed. We disagree. Although the

circuit court did not decide this issue involving statu-

tory interpretation, it is an issue of law that was raised

by the parties, the facts necessary for its resolution are

present, and the issue is dispositive of defendant’s

appeal; therefore, we will consider and decide the issue.

This motion was rejected by the court clerk for failure to pay the

motion fee, but it was treated by the court as an answer to plaintiff’s

complaint and response to the order to show cause.

644 294 M

ICH

641 [Nov

See Michigan Twp Participating Plan v Fed Ins Co, 233

Mich App 422, 435-436; 592 NW2d 760 (1999).

This Court reviews de novo issues of statutory inter-

pretation as questions of law. Griffith v State Farm Mut

Auto Ins Co, 472 Mich 521, 525-526; 697 NW2d 895

(2005). The primary goal of statutory interpretation is

to ascertain and give effect to the legislative intent

“that may reasonably be inferred from the statutory

language itself.” Id. at 526; see, also, Frankenmuth Mut

Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573

NW2d 611 (1998). “If the plain and ordinary meaning of

the statutory language is clear, then judicial construc-

tion is neither necessary nor permitted.” Walters v

Bloomfield Hills Furniture, 228 Mich App 160, 163; 577

NW2d 206 (1998).

The SCFRA imposes a civil, statutory duty on pris-

oners to reimburse the state for the cost of their

incarceration. State Treasurer v Schuster, 456 Mich

408, 419; 572 NW2d 628 (1998); Auditor General v Hall,

300 Mich 215, 221; 1 NW2d 516 (1942). Likewise, the

SCFRA grants the state a statutory right to reimburse-

ment of up to 90 percent of the value of a prisoner’s

assets. MCL 800.403(3); State Treasurer v Sheko, 218

Mich App 185, 188; 553 NW2d 654 (1996). That is, the

SCFRA authorizes the filing of a complaint in the

circuit court “to secure reimbursement, from the assets

of a prisoner, for the expenses incurred by the state for

the cost of care of the prisoner during the entire period

of his incarceration.” Id. at 187 n 1; see, also, MCL

800.404(1) and (8). “Assets” are defined by the SCFRA

to include “property, tangible or intangible, real or

personal, belonging to or due a prisoner...from any

other source whatsoever....”MCL800.401a(a). Thus,

proceeds a prisoner is due from a life insurance policy

are considered an asset for purposes of the SCFRA.

2011] S

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645

In this case, however, defendant argues that the

insurance proceeds that he was due after his mother

died were not his “assets” within the meaning of MCL

800.401a(a) because he disclaimed his interest in the

proceeds pursuant to the DPIL. MCL 700.2902(1) of the

DPIL provides that a person “may disclaim a disclaim-

able interest in whole or in part.” MCL 700.2901(2)(b)

defines a “disclaimable interest” as including property

and the right to receive property. The insurance pro-

ceeds involved here appear to be a disclaimable interest.

But the right to disclaim is not absolute. MCL

700.2910(2) provides, for example, that the “right to

disclaim is barred to the extent provided by other

applicable law.” Thus we turn to the issue whether

defendant had the right to disclaim his interest in the

insurance proceeds, i.e., whether his right to disclaim

was barred by the SCFRA.

Under the SCFRA, if the attorney general “has good

cause to believe that a prisoner has sufficient assets to

recover not less than 10% of the estimated cost of care

of the prisoner...the attorney general shall seek to

secure reimbursement for the expense of the state of

Michigan for the cost of care of that prisoner.” MCL

800.403(2). After a complaint against the prisoner has

been filed seeking reimbursement, “the court shall

issue an order to show cause why the prayer of the

complainant should not be granted.” MCL 800.404(2).

MCL 800.404(3) provides:

At the time of the hearing on the complaint and order, if

it appears that the prisoner has any assets which ought to

be subjected to the claim of the state under this act, the

court shall issue an order requiring any person, corpora-

tion, or other legal entity possessed or having custody of

those assets to appropriate and apply the assets or a

portion thereof toward reimbursing the state as provided

for under this act.

646 294 M

ICH

641 [Nov

However, “before entering any order on behalf of the

state against the defendant, the court shall take into

consideration any legal obligation of the defendant to

support a spouse, minor children, or other dependents

and any moral obligation to support dependents to

whom the defendant is providing or has in fact provided

support.” MCL 800.404(5). Further, in seeking to secure

reimbursement, the attorney general is empowered

under MCL 800.404a(1) to “use any remedy, interim

order, or enforcement procedure allowed by law or court

rule including an ex parte restraining order to restrain

the prisoner...from disposing of certain property

pending a hearing on an order to show cause why the

particular property should not be applied to reimburse

the state as provided for under this act.” A receiver may

also be appointed, MCL 800.404a(2), but any judgment

obtained under the SCFRA may not be executed against

the prisoner’s homestead, MCL 800.404a(3).

Review of the broad and mandatory language of the

SCFRA reveals the Legislature’s manifest intent to

recover, when possible, the cost of prisoner incarcera-

tion by seeking and securing prisoner assets through

any legal means necessary. As our Supreme Court noted

in Schuster, 456 Mich at 418, “the plain and broad

language of the reimbursement provisions at issue

indicates a legislative intent to shift the burden of

incarceration expenses to prisoners and from the tax-

payers whenever possible.” The Legislature’s vigor in

this endeavor is only tempered by its recognition of a

prisoner’s legal and moral obligations to support depen-

dents, MCL 800.404(5), and the importance of a prison-

er’s homestead, MCL 800.401a(a)(i) and MCL

800.404a(3).

More particularly, the SCFRA (1) broadly defines a

prisoner’s “assets” that are subject to the reach of the

2011] S

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647

SCFRA, (2) empowers and commands the attorney

general to secure the assets and seek reimbursement

through those “sufficient assets,” and (3) directs the

presiding circuit court to consider the attorney gener-

al’s claim, determine whether the prisoner “has any

assets which ought to be subjected to the claim” and, if

so, order reimbursement from those assets after consid-

eration of a prisoner’s legal and moral support obliga-

tions.

The circuit court’s determination of the “assets

which ought to be subjected to the claim,” MCL

800.404(3), is guided by the definition of “assets” set

forth in the SCFRA, MCL 800.401a(a), which excludes

from consideration a prisoner’s homestead up to

$50,000 in value and money saved by the prisoner from

wages and bonuses paid while incarcerated.

In this case, defendant clearly attempted to avoid his

statutory duty and frustrate the state’s statutory right

to partial reimbursement for his incarceration costs by

attempting to disclaim his interest in the insurance

proceeds. However, we conclude that the SCFRA barred

defendant from disclaiming his interest. First, we note

that the Legislature’s primary intent would be ignored,

and clearly frustrated, if prisoners were permitted to

disclaim their interest in assets to which they are, or

become, entitled in a dual effort to circumvent their

statutory duty and deprive the state of its statutory

right. As this Court noted in Sheko, 218 Mich App at

189, “a prisoner cannot impede the state’s clear statu-

tory right to reimbursement....”

Second, the SCFRA specifically recognizes certain

rights and obligations with regard to prisoner assets,

but the purported right to disclaim an interest in a

potential asset is not recognized. And the fact that MCL

See MCL 800.401a(a), 800.403(2), 800.404(1), 800.404(3), and

800.404(5).

648 294 M

ICH

641 [Nov

800.404a(1) allows the attorney general to “use any

remedy, interim order, or enforcement procedure al-

lowed by law or court rule” to prevent a prisoner from

disposing of assets suggests a legislative intent to bar a

prisoner from alienating his or her ownership interest

in any assets that might be subject to confiscation.

Similarly, the authority conferred on the circuit court

by MCL 800.404a(2) to appoint a receiver to protect and

maintain the assets pending resolution of the action

also suggests a legislative intent to bar a prisoner from

alienating his or her ownership interest in assets that

might be subject to confiscation.

Third, the SCFRA’s definition of an “asset” includes

property “belonging to or due a prisoner....” MCL

800.401a(a). Thus, the state’s right to seek reimburse-

ment through a prisoner’s assets does not depend on

whether the prisoner accepted or received the particular

asset sought by the state—it need only be “due a pris-

oner.” Under the DPIL, the legal effect of a disclaimer is

that the disclaimant is treated as never having accepted or

received the disclaimed interest. MCL 700.2909(2). How-

ever, under the SCFRA acceptance and receipt of the asset

is irrelevant; again, the property must merely be due a

prisoner. In this case, once defendant’s mother died,

defendant was “due” the insurance proceeds. See Aetna

Life Ins Co v Owens, 318 Mich 129, 138-139; 27 NW2d 607

(1947); Dogariu v Dogariu, 306 Mich 392, 406; 11 NW2d

1 (1943). Accordingly, there is no conflict between the

SCFRA and the DPIL.

Fourth, in Sheko, 218 Mich App at 188-189, this

Court rejected a similar attempt by a prisoner to

avoid his statutory duty to reimburse the state for

incarceration costs under the SCFRA. In that case,

the prisoner sought to repay a debt owed to his

brother with proceeds from a lawsuit settlement and

2011] S

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649

opposed the state’s efforts to recover those proceeds

pursuant to the SCFRA. Id. at 186-187. The prisoner

argued that his common-law right to prefer creditors

was violated by the state’s action. Id. at 187. This

Court rejected the argument, noting that even if the

defendant had such a common-law right to prefer

creditors, “no such right exists in an action brought

under the SCFRA.” Id. at 188. And “[a]ccepting

defendant’s position would lead to the absurd result

of the state receiving reimbursement only when a

prisoner has no other financial obligations, or having

other financial obligations, does not object to the

state securing reimbursement from the prisoner’s

assets.” Id. In the case before us, defendant objected

to the state’s action by asserting a purported right to

disclaim his interest in the insurance proceeds. De-

fendant opposed the state’s action for, ultimately, the

same reasons rejected in Sheko—to avoid his statu-

tory duty of reimbursement and to deny the state its

statutory right to reimbursement. Permitting a pris-

oner to use the DPIL to accomplish these objectives

would similarly lead to an absurd result.

In summary, the SCFRA bars a prisoner from dis-

claiming an interest in assets pursuant to the DPIL.

Defendant had no right to disclaim his interest in the

insurance proceeds; thus, the circuit court reached the

correct result albeit for the wrong reason. See Hess v

Cannon Twp, 265 Mich App 582, 596; 696 NW2d 742

(2005). In light of our resolution of this dispositive

issue, we need not consider defendant’s other issue on

appeal pertaining to whether his purported disclaimer

was barred under the DPIL.

Affirmed.

ONAYNE

RAUSE

,P.J., and C

AVANAGH

and J

ANSEN

,JJ.,

concurred.

650 294 M

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641

HARDRICK v AUTO CLUB INSURANCE ASSOCIATION

Docket Nos. 294875, 298661, and 299070. Submitted April 5, 2011, at

Detroit. Decided December 1, 2011, at 9:00 a.m. Leave to appeal

denied, 493 Mich 867.

William J. Hardrick was injured when he was struck by a vehicle

while a pedestrian. Auto Club Insurance Association admitted

responsibility for paying his personal protection insurance ben-

efits and paid Hardrick’s parents $10.25 to $10.50 an hour to

provide the attendant-care services he needed. Hardrick brought

an action in the Oakland Circuit Court against Auto Club and

others, seeking a determination that his parents qualified as

“behavioral technicians,” entitling them to charge a higher hourly

rate. Auto Club did not contest the number of hours that plaintiff’s

parents worked providing attendant care. Before trial, the court,

Michael Warren, J., determined that Auto Club had violated its

discovery orders by providing belated and incomplete responses to

discovery requests. Plaintiff sought a default judgment, but the

court opted to impose a “lesser sanction,” precluding Auto Club

from presenting witnesses or evidence and limiting it to cross-

examining plaintiff’s witnesses and challenging his proffered evi-

dence. During trial, plaintiff’s witness testified that the value of

the care provided by plaintiff’s parents fell within the $25 to $45

an hour range. The trial court, Edward Avadenka, J., denied Auto

Club’s motion to modify the sanctions and limited the jury’s

reasonable-charge calculation to the range of $25 to $45. The jury

ultimately determined that $28 an hour represented a reasonable

charge for plaintiff’s parents’ attendant-care services. The court

then ordered Auto Club to pay plaintiff’s attorney fees for unrea-

sonably delaying making proper payment. Auto Club brought

three separate appeals from the trial court’s orders. The appeals

were consolidated.

The Court of Appeals held:

1. The trial court abused its discretion by selecting the discov-

ery sanction it imposed. A court’s chosen discovery sanction must

be proportionate and just. The trial court clearly erred by conclud-

ing that Auto Club’s discovery violations severely prejudiced

plaintiff. The trial was adjourned for nearly six months through no

ARDRICK V

UTO

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651

fault of Auto Club following the imposition of the sanction. This

additional time allowed additional discovery to occur and the

extended period reduced the prejudice caused by Auto Club’s

earlier discovery violation and supported Auto Club’s request to

modify the sanction. The sanction was disproportionate and af-

fected the entirety of the trial. The judgment of the trial court is

vacated and the case is remanded for a new trial at which the trial

court may impose a just sanction.

2. The market rate for agency-provided attendant-care service

bears relevance to establishing the rate for family-provided ser-

vices. The rates charged by an agency to provide attendant-care

services are not dispositive of the reasonable rate chargeable by a

relative caregiver, however, this does not detract from the rel-

evance of such evidence. The rate charged by an agency for the

care provided by a “behavioral technician” relates to a consequen-

tial fact, the reasonableness of plaintiff’s claimed charge for his

parents’ “behavioral technician” services, and falls within the

range of litigated matters in controversy. The fact that an agency

charges a certain rate for precisely the same services that plain-

tiff’s parents provide does not prove that the rate should apply to

the parents’ services. However, an agency rate for attendant-care

services, routinely paid by a no-fault carrier, is a piece of evidence

that throws some light on the reasonableness of a charge for

attendant-care services, supplying one measure of the value of

attendant care worthy of consideration by the jury. The fact that

different charges for the same service exist in the marketplace

does not render one charge irrelevant as a matter of law. The

evidence of agency rates is relevant and the trial court properly

rejected Auto Club’s attempt to exclude it.

3. The Legislature selected reasonableness as the operative

criterion for determining the amount of a charge for services. To

the extent that the market for a particular service bears on its

reasonableness, the parameters of the relevant market present

jury questions. The relevant market for attendant-care services

includes agency-provided services, family-provided services, and

independently contracted care. It is implausible that a relevant

market may exclude real-life competitors for precisely the same

services.

4. The no-fault act does not confine a provider’s reasonable

charge to the amount the provider customarily receives from

third-party payors.

5. A jury may consider a provider’s wage as one piece of

evidence relevant to the reasonable charge for attendant-care

services. The reasonableness inquiry encompasses any evidence

652 294 M

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651 [Dec

bearing on fair compensation for the particular services rendered.

Evidence of the employee’s hourly wage throws some light on the

reasonableness of a charge for attendant-care services. The jury

should hear such evidence.

6. Evidence of the “overhead” incurred or not incurred by

plaintiff’s parents and the “opportunity cost,” the amount that is

sacrificed when choosing one activity over the next best alterna-

tive, of the parents in providing attendant-care services are

relevant in calculating a reasonable charge for such services.

7. An objective standard guides an assessment of the term

“reasonable charge.”

8. The amount charged for attendant-care services substan-

tially similar to the services provided by plaintiff’s parents affords

a logical basis for calculating a reasonable charge. The charges

made by others for the same services provided by plaintiff’s

parents may incorporate fees and costs not present within plain-

tiff’s household, but these shortcomings affect the weight of the

evidence rather than its admissibility.

9. The trial court properly rejected instructing the jury pursu-

ant to Auto Club’s proposed Alternative A instruction because it

would have precluded the jury’s consideration of relevant evi-

dence. The trial court should have presented Auto Club’s proposed

Alternative B, which recognized the multifaceted nature of the

required calculation and allowed the jury to consider a broad

spectrum of relevant evidence.

Vacated and remanded.

ARKEY

, J., concurring in part and dissenting in part, agreed

with the majority that the trial court abused its discretion by

imposing an unjust and disproportionate discovery sanction and,

therefore, the judgment for attendant-care services and attorney

fees must be vacated and the case must be remanded for a new

trial. Judge M

ARKEY

disagreed, however, that agency rates are

relevant to determining a reasonable charge for attendant-care

services provided by family members under the no-fault insurance

act. She would hold that evidence of rates agencies charge to

provide caregivers is not admissible because the hourly rate

necessary to operate a business to provide individual caregivers is

not material to the question of a reasonable charge to compensate

individual family members who provide attendant care to injured

loved ones. She would also hold that the trial court erred by not

granting Auto Club’s motion in limine that sought to preclude

plaintiff from introducing evidence of the amounts health-care

agencies charge for providing home attendant care and by refusing

2011] H

ARDRICK V

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to instruct the jury as requested by Auto Club and would reverse

the judgment of the trial court for those reasons as well. Allowable

expenses are implicitly purchased by the injured person at their

reasonable market value. The reasonable or market value of the

attendant-care services plaintiff purchased from his parents is

what they could receive by marketing similar services to unrelated

purchasers when insurance is not involved. What payment plain-

tiff’s parents could command on the open market would depend on

their qualifications, training, experience, the demand for the

service, and other factors. What an agency might charge to provide

a caregiver of such services is not relevant because it does not

accurately reflect what the individual caregiver would earn.

Agency rates are not relevant to prove a reasonable charge for

family-provided attendant-care services. To the extent that evi-

dence regarding agency rates satisfies the “any tendency” stan-

dard for relevant evidence under MRE 401, it should be excluded

because its probative value is substantially outweighed by the

danger of confusion of the issues or misleading the jury.

1. P

RETRIAL

ROCEDURE —

ISCOVERY —

ANCTIONS

A sanction imposed by a trial court for a discovery violation must be

proportionate and just; a trial court’s imposition of discovery

sanctions is reviewed by the Court of Appeals for an abuse of

discretion; an abuse of discretion occurs when the decision results

in an outcome falling outside the range of principled outcomes.

2. I

NSURANCE —

-F

AULT —

ERSONAL

ROTECTION

NSURANCE

ENEFITS —

TTENDANT

ARE —

AMILY

-P

ROVIDED

ARE —

EASONABLE

HARGES

The market rate for agency-provided attendant-care services bears

relevance to establishing a rate for family-provided attendant-care

services under the no-fault insurance act; although rates charged

by an agency to provide attendant-care services are not dispositive

of the reasonable rate chargeable by a relative caregiver, they

supply one measure of the value of attendant care and are relevant

to the determination of a reasonable charge for family-provided

attendant-care services (MCL 500.3107[1][a]).

3. I

NSURANCE —

-F

AULT —

ERSONAL

ROTECTION

NSURANCE

ENEFITS —

LLOWABLE

XPENSES

EASONABLE

HARGES.

The Legislature selected reasonableness as the operative criterion

for determining the allowable expenses incurred for reasonably

necessary products, services, and accommodations for the care,

recovery, or rehabilitation of a person injured in a motor vehicle

accident; to the extent that the market for a particular service

bears on its reasonableness, the parameters of the relevant market

654 294 M

ICH

651 [Dec

present jury questions; the relevant market for attendant-care

services includes agency-provided services, family-provided ser-

vices, and independently contracted care; the no-fault act does not

confine a provider’s reasonable charge to the amount the provider

customarily receives from third-party payors; an objective stan-

dard guides an assessment of the term “reasonably necessary”; the

question whether expenses are reasonable and reasonably neces-

sary is generally one of fact for the jury and, in making this

determination, the jury is entitled to consider evidence relevant to

the reasonableness of the charge (MCL 500.3107[1][a]).

Liss, Seder & Andrews, P.C. (by Nicholas S. Andrews

and Arthur Y. Liss), and Larry A. Smith, for William

Hardrick.

Hom, Killeen, Siefer, Arene & Hoehn (by Kevin S.

Carden) and Gross & Nemeth, P.L.C. (by Mary T.

Nemeth), for Auto Club Insurance Association.

Before: G

LEICHER

,P.J., and S

AWYER

and M

ARKEY

,JJ.

LEICHER

,P.J. In this no-fault insurance action, a jury

found defendant Auto Club Insurance Association (ACIA)

liable to plaintiff William Hardrick for family-provided

attendant-care services at a rate of $28 an hour. The jury

reached this judgment after a trial at which ACIA was

barred from presenting any evidence.

We vacate that

judgment and remand for a new trial as the lower court

abused its discretion by imposing an unjust and dispro-

portionate sanction against ACIA.

The parties vigorously contest the parameters of the

evidence relevant on retrial to prove the reasonable rate

for family-provided attendant-care services. ACIA con-

tends that agency rates are irrelevant to establish the

cost of family-provided care. We conclude that evidence

These three appeals all arise out of the same lower-court action for

no-fault benefits and have been consolidated to advance the efficient

administration of the appellate process.

2011] H

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of agency rates constitutes a material and probative

measure of the general value of attendant-care services,

including care provided by family members.

I. BACKGROUND FACTS AND PROCEEDINGS

In May 2007, a car struck Hardrick, then aged 19, as

he walked home from work. Hardrick suffered a trau-

matic brain injury resulting in cognitive deficits and

emotional instability. Extensive hospital-based rehabili-

tation yielded only minimal therapeutic gains. In 2008,

Hardrick’s psychiatrist recommended around-the-clock

attendant care “for supervision and safety.” Hardrick’s

parents provide the prescribed attendant care.

ACIA admitted responsibility for paying Hardrick’s

personal protection insurance (PIP) benefits, “consist-

ing 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). ACIA classified Hardrick’s par-

ents as “home health aides,” and paid them a rate of

$10.25 to $10.50 an hour for the attendant care they

provided. Hardrick filed this lawsuit seeking a determi-

nation that his parents qualified as “behavioral techni-

cians,” entitling them to charge a higher hourly rate.

Throughout the litigation, the parties disputed only the

“reasonable charge” for Hardrick’s parents’ services.

ACIA never contested the number of hours Hardrick’s

parents worked providing attendant care or its respon-

sibility to pay PIP benefits.

ACIA’s counsel conceded in a pretrial motion that “The only issue for

[t]rial is the amount of compensation for Plaintiff’s family members who

provide Plaintiff the needed 24 hour a day attendant care.” At the

hearing on Hardrick’s motion for a default judgment, ACIA’s counsel

further conceded: “The only issue in this case is whether or not the

attendant care rate being paid to the parents of this injured individual is

656 294 M

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Before trial, the circuit court determined that ACIA

had violated its discovery orders by providing belated

and incomplete responses to discovery requests.

Hardrick pursued a default judgment, but the court

opted to impose a “lesser sanction.” The court pre-

cluded ACIA from presenting any witnesses or evi-

dence. As a result, ACIA was limited to cross-examining

Hardrick’s witnesses and challenging his proffered evi-

dence.

At the trial, Hardrick presented the testimony of

Robert Ancell, Ph.D., a vocational rehabilitation coun-

selor and case manager. Ancell opined that Hardrick’s

psychiatrist ordered attendant-care services at a level

consistent with the care provided by behavioral techni-

cians. Ancell explained that within the attendant-care

rubric, a “companion, like a baby sitter,” fulfills the

lowest level of responsibility. At the next level, nurse’s

aides, also known as home health aides, attend to “basic

care needs” such as “[b]athing, feeding, dressing” and

spending time with the brain-injured patient. Licensed

practical nurses occupy the next rung of the responsi-

bility ladder. “Somewhere comparable” to the licensed

practical nurses, behavioral therapists “understand[]

how to deal with behavior issues” by “cuing” and

“structuring” behavior. According to Ancell, Hardrick’s

psychiatrist ordered supervision “by someone with

[the] experience of a behavioral technician or life skills

trainer, or someone who is very familiar to the patient

who knows how to distract him, structure him, and set

limits on him in a way that won’t escalate his behav-

iors.”

a fair rate. That’s the only issue. There’s no medical issues, there’s no

coverage issues, there’s no issues of anything else.” Given these conces-

sions at the trial level, ACIA is precluded from complaining on appeal

that Hardrick’s parents did not actually serve the logged number of

attendant-care hours.

2011] H

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Ancell testified that Hardrick’s parents have fulfilled

the supervisory duties described by their son’s psychia-

trist, and opined that the value of their care ranged

between $25 and $45 an hour. Ancell derived this range

from “the market place...as it relates to providing

that kind of service to individuals and individuals who

are clients of ours that receive those types of services[.]”

During cross-examination, Ancell clarified that al-

though the “value” of the care fell within the $25 to $45

range, a behavioral technician’s hourly wage would be

less. Ancell explained that his value calculation factored

in benefits and other “government mandated inclu-

sions” applicable to agencies and conceded that employ-

ment benefits constitute 30 percent of an agency em-

ployee’s hourly rate. Ancell agreed that independent

contractors receive no benefits, but noted that they pay

social security taxes at a rate two times greater than

agency employees.

The trial court limited the jury’s reasonable-charge

calculation to a range of $25 to $45 an hour, and the jury

ultimately concluded that $28 an hour represented a

reasonable charge for Hardrick’s parents’ attendant-

care services. The trial court then ordered ACIA to pay

Hardrick’s attorney fees, pursuant to MCL 500.3148(1)

of the no-fault act, at a rate of $500 an hour, finding

that ACIA “unreasonably delayed in making proper

payment.”

II. DISCOVERY VIOLATION

ACIA concedes “that it did not timely respond to

Plaintiff’s...interrogatories and requests for discov-

ery” and that the trial court was justified in imposing a

sanction. ACIA challenges only the court’s choice of a

sanction.

658 294 M

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As a result of ACIA’s failure to provide timely and

complete discovery, Hardrick filed a motion for a default

judgment. The trial court noted that a default judgment

is a “drastic sanction” that “should be only used when

there has been a flagrant and wanton refusal to facili-

tate discovery.” The court further noted that it was

required to consider “whether a lesser sanction would

better serve the interest of justice.” The court found

that Hardrick had been severely prejudiced by ACIA’s

reticence because discovery had since closed, case evalu-

ation was completed, and the time to file a motion for

summary disposition had passed. Yet, the court found

that ACIA was not “obfuscating and attempting to

impair discovery in a malicious sense.” The trial court

then ruled, “I find in light of that that an appropriate

lesser sanction is to not allow the defendant to produce

any witnesses at all. And that is the Court’s finding,

that that lesser sanction is appropriate.” (Emphasis

added.)

Following the court’s imposition of the sanction, the

court twice adjourned the trial to accommodate the

needs of Hardrick’s counsel. As the date for the resched-

uled trial approached, ACIA filed a motion for reconsid-

eration, expressing its desire to introduce “expert wit-

nesses regarding rate and level of care.” By then, ACIA

had supplied Hardrick with complete discovery and

Hardrick had had a sufficient opportunity to review the

information, thereby eliminating any possible preju-

dice. In the interim, however, the case had been reas-

signed to a visiting judge who declined to overrule the

original judge’s penalty imposed for ACIA’s past con-

duct.

We review a trial court’s imposition of discovery

sanctions for an abuse of discretion. Dorman v Clinton

Twp, 269 Mich App 638, 655; 714 NW2d 350 (2006). An

2011] H

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abuse of discretion occurs when the decision is outside

the range of principled outcomes. Maldonado v Ford

Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).

The trial court sanctioned ACIA pursuant to MCR

2.313. “The interpretation and application of a court

rule involves a question of law that this Court reviews

de novo.” Johnson Family Ltd Partnership v White Pine

Wireless, LLC, 281 Mich App 364, 387; 761 NW2d 353

(2008). This Court reviews any factual findings under-

lying a trial court’s decision for clear error. MCR

2.613(C). “A finding is clearly erroneous when this

Court is left with a definite and firm conviction that a

mistake has been made.” Johnson, 281 Mich App at

387.

MCR 2.313(B)(2) provides for the imposition of dis-

covery sanctions as follows:

If a party or an officer, director, or managing agent of a

party, or a person designated...totestify on behalf of a party,

fails to obey an order to provide or permit discovery,...the

court in which the action is pending may order such sanctions

as are just, including, but not limited to the following:

(a) an order that the matters regarding which the order

was entered or other designated facts may be taken to be

established for the purposes of the action in accordance

with the claim of the party obtaining the order;

(b) an order refusing to allow the disobedient party to

support or oppose designated claims or defenses, or prohib-

iting the party from introducing designated matters into

evidence;

staying further proceedings until the order is obeyed,

dismissing the action or proceeding or a part of it, or

rendering a judgment by default against the disobedient

party;

***

660 294 M

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In lieu of or in addition to the foregoing orders, the court

shall require the party failing to obey the order or the

attorney advising the party, or both, to pay the reasonable

expenses, including attorney fees, caused by the failure,

unless the court finds that the failure was substantially

justified or that other circumstances make an award of

expenses unjust.

It is readily apparent that the trial court abused its

discretion by selecting the sanction imposed. The court

specifically concluded that ACIA’s conduct did not

merit the drastic sanction of a default judgment. Even

though the court labeled its order as “a lesser sanction,”

the court actually imposed a sanction more severe and

limiting than a default judgment would have been. Had

the court granted Hardrick’s request for a default

judgment, ACIA would have been permitted to present

evidence to prove the extent of Hardrick’s damages.

Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573, 578;

321 NW2d 653 (1982), mod on other grounds by Smith

v Khouri, 481 Mich 519 (2008) (while “a default settles

the question of liability as to well-pleaded allegations

and precludes the defaulting party from litigating that

issue,” it is not an admission of damages); Dollar

Rent-A-Car Sys v Nodel Constr, 172 Mich App 738, 743;

432 NW2d 423 (1988) (a default “operates as an admis-

sion by the defaulting party of issues of liability, but

leaves the issues of damages” to be resolved at a hearing

at which the defaulting party has “full participatory

rights”). The court’s actual sanction went further and

precluded ACIA from presenting any evidence, even on

the damages issue.

A court may impose the severe sanction of a default

judgment “only when a party flagrantly and wantonly

refuses to facilitate discovery, not when the failure to

comply with a discovery request is accidental or invol-

untary.” Bass v Combs, 238 Mich App 16, 26; 604 NW2d

2011] H

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727 (1999), overruled in part on other grounds Dimmitt

& Owens Fin, Inc v Deloitte & Touche (ISC), LLC, 481

Mich 618, 628 (2008); Mink v Masters, 204 Mich App

242, 244; 514 NW2d 235 (1994).

Before imposing the sanction of a default judgment, a

trial court should consider whether the failure to respond

to discovery requests extends over a substantial period of

time, whether an existing discovery order was violated, the

amount of time that has elapsed between the violation and

the motion for a default judgment, the prejudice to defen-

dant, and whether wilfulness has been shown. [Thorne v

Bell, 206 Mich App 625, 632-633; 522 NW2d 711 (1994).]

Ultimately, the court’s chosen discovery sanction must

“be proportionate and just....” Kalamazoo Oil Co v

Boerman, 242 Mich App 75, 87; 618 NW2d 66 (2000).

The trial court correctly determined that ACIA had

violated the court’s discovery order by providing be-

lated and incomplete discovery. ACIA’s failure to ad-

equately respond to discovery requests extended over

several months, even after an order to compel was

entered. The court also correctly concluded that ACIA’s

discovery violation was not flagrant and wanton, but

more likely negligent. Given the lack of flagrant and

wanton conduct on ACIA’s part, the court properly

determined that a default judgment would be too severe

a sanction.

Yet, as noted, the trial court found that Hardrick had

suffered severe prejudice. At that point, the date origi-

nally set for trial was drawing nigh and the court was

concerned that ACIA’s delay amounted to a “trial by

ambush.” The court expressed further concern over the

effect of ACIA’s delay on the court’s docket: “The

alternative would be for this Court to basically re-start

and re-gear up the scheduling order which would in-

clude significantly expanding the time that the Court

662 294 M

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would have to dedicate to this case, re-opening discov-

ery, case evaluation, motions for summary disposition.

That is completely inappropriate.”

The trial court clearly erred by concluding that

ACIA’s discovery violations severely prejudiced

Hardrick. Hardrick controlled the necessary informa-

tion regarding his treatment, progress, and the

attendant-care services provided by his parents.

Hardrick bore the burden of proof on the reasonable

value of the attendant-care services and could investi-

gate the issue without assistance from ACIA. Hardrick

was also fully aware of ACIA’s defense theory given that

ACIA had compensated his parents at “health aide”

rates. He easily could have accessed the United States

Department of Labor’s statistics on which ACIA based

its payment schedule. Moreover, at the time of the

discovery-violation hearing, the parties had agreed to

proceed with witness depositions despite the expiration

of the discovery period. Thus, the court and Hardrick

were aware that Hardrick would discover additional

information regarding ACIA’s defense before trial. The

court could have allayed its concern that ACIA was

attempting to conduct a trial by ambush by precluding

ACIA’s presentation of any undisclosed witnesses or

evidence. And the proper remedy for the inconvenience

caused to the court’s docket would be to hold ACIA in

contempt of court. MCR 2.313(B)(2)(d); Johnson, 281

Mich App at 387. Moreover, the trial was adjourned for

nearly six months following the imposition of the sanc-

tion and by no fault of ACIA. This additional time more

than amply allowed continued discovery, which did, in

fact, occur. The extended trial-preparation period cer-

tainly reduced the prejudice caused by ACIA’s earlier

discovery violation and supported ACIA’s subsequent

request to modify the existing sanction.

2011] H

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In the end, the trial court’s error cost ACIA the

opportunity to present any evidence regarding the

reasonable rate of service, an element of damages.

Because the sanction was disproportionate and affected

the entirety of the trial, we vacate the jury’s judgment

in Hardrick’s favor and remand for a new trial.

remand, the court may find a lesser degree of prejudice

caused to Hardrick and may impose some sanction on

ACIA for its violation of discovery orders. However, the

court should carefully consider what sanctions are

“just” under the circumstances. See MCR 2.313(B)(2).

III. FAMILY-PROVIDED ATTENDANT CARE

By remanding this case for a new trial, we have

reopened the parties’ debate regarding the valuation of

family-provided attendant-care services. MCL

500.3107(1)(a) provides for the payment of “[a]llowable

expenses,” “consisting of all reasonable charges in-

curred for reasonably necessary products, services and

accommodations for an injured person’s care, recovery,

or rehabilitation.” ACIA contends that the rates

charged by health-care agencies for attendant-care ser-

vices are irrelevant to establish the reasonable rate for

unlicensed, family-provided services. ACIA argues that

the rate for family-provided attendant care must be

based on what a similarly skilled care provider doing

the same work could earn if employed performing that

work for an unrelated employer. According to ACIA, the

pertinent rate for determining the value of the family-

The trial court granted a partial directed verdict in Hardrick’s favor,

requiring the jury to determine a value for attendant-care services between

$25 and $45 an hour. The court’s decision was based on the lack of evidence

contradicting Hardrick’s expert witness’s valuation of such services. Be-

cause ACIA will be able to present evidence regarding damages on remand,

including the reasonableness of the rate, we need not consider the propriety

of the court’s order granting a partial directed verdict.

664 294 M

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provided attendant care is a similar worker’s wage, not

the hourly fees that a health-care agency might charge

to provide such services because that charge would

include operating expenses as well as wages. To that

end, ACIA filed a motion in limine to preclude

Hardrick’s evidence in this regard or, in the alternative,

requested special jury instructions to limit the use of

the evidence. We hold that the market rate for agency-

provided attendant-care services bears relevance to

establishing a rate for family-provided services.

A. RELEVANCY

ACIA relies extensively on Bonkowski v Allstate Ins

Co, 281 Mich App 154; 761 NW2d 784 (2008), for the

proposition that evidence of agency rates for attendant-

care services “is irrelevant” to establish the rate for

family-provided care. However, Bonkowski expressly ac-

knowledged that its analysis of this issue was pure dicta:

This case touches on an interesting question of law and

statutory interpretation: whether, when determining rea-

sonable compensation payable under MCL 500.3107(1)(a)

to lay providers of attendant care services, a jury may rely

on the rates charged by health care agencies that employ

licensed health care professionals who provide attendant

care services. We use the words “touches on” intentionally,

as this issue is not squarely before us in this appeal.

This Court has previously embraced the notion that

“comparison to rates charged by institutions provides a

valid method for determining whether the amount of an

expense was reasonable and for placing a value on compa-

rable services performed [by family members].” Manley v

Detroit Automobile Inter-Ins Exch, 127 Mich App 444, 455;

339 NW2d 205 (1983). We question the conclusion reached

in Manley.

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Notwithstanding our questioning of Manley, defendant

did not argue in the trial court or on appeal in this Court

that Manley was wrongly decided. Rather, the lower court

record reflects that defendant only argued before the trial

court that, under MCL 500.3107, Andrew’s expenses had

not been “incurred.” The question whether attendant care

services were “incurred” is distinct from the question

whether the amount paid for attendant care services was

reasonable. [Bonkowski, 281 Mich App at 164-165 (citation

omitted).]

We are, therefore, in no way bound to follow Bonkowski.

Allison v AEW Capital Mgt, LLP, 481 Mich 419, 436-

437; 751 NW2d 8 (2008).

In any event, we disagree with Bonkowski’s sugges-

tion that agency rates are irrelevant to establish family-

care rates, to wit:

In determining reasonable compensation for an unli-

censed person who provides health care services, a fact-

finder may consider the compensation paid to licensed

health care professionals who provide similar services....

For this reason, consideration of the compensation paid by

health care agencies to their licensed health care employees

for rendering services similar to the services provided by

unlicensed family members is appropriate when determin-

ing reasonable compensation for those family members.

However, the actual charges assessed by health care agen-

cies in the business of providing such services is not

relevant and provides no assistance in determining reason-

able compensation for the actual provider of such services.

The focus should be on the compensation provided to the

person providing the services, not the charge assessed by

an agency that hires health care professionals to provide

such services. [Bonkowski, 281 Mich App at 164-165.]

We agree that the rates charged by an agency to provide

attendant-care services are not dispositive of the rea-

sonable rate chargeable by a relative caregiver. How-

ever, this does not detract from the relevance of such

evidence.

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Relevant evidence is evidence “having any tendency

to make the existence of any fact that is of consequence

to the determination of the action more probable or less

probable than it would be without the evidence.” MRE

401 (emphasis added). Relevance divides into two com-

ponents: materiality and probative value. People v

Crawford, 458 Mich 376, 388; 582 NW2d 785 (1998).

Material evidence relates to a fact of consequence to the

action. People v Sabin (After Remand), 463 Mich 43, 57;

614 NW2d 888 (2000). “ ‘[A] material fact “need not be

an element of a crime or cause of action or defense but

it must, at least, be ‘in issue’ in the sense that it is

within the range of litigated matters in controversy.” ’ ”

People v Brooks, 453 Mich 511, 518; 557 NW2d 106

(1996), quoting People v Mills, 450 Mich 61, 68; 537

NW2d 909 (1995), quoting United States v Dunn, 805

F2d 1275, 1281 (CA 6, 1986). Materiality “looks to the

relation between the propositions that the evidence is

offered to prove and the issues in the case. If the

evidence is offered to help prove a proposition that is

not a matter in issue, the evidence is immaterial.” 1

McCormick, Evidence (6th ed), § 185, p 729. Here, the

material fact at issue concerns a reasonable charge for

Hardrick’s attendant-care services. No-fault insurers

routinely pay agency rates for attendant-care services.

As Ancell explained, the rates charged vary according to

the level of care provided. Thus, the rate charged by an

agency for the care provided by a “behavioral techni-

cian” relates to a consequential fact, the reasonableness

of Hardrick’s claimed charge for his parents’ “behav-

ioral technician” services, and thus falls within the

range of litigated matters in controversy.

In People v VanderVliet, 444 Mich 52, 60 n 8; 508 NW2d 114 (1993),

our Supreme Court quoted approvingly from a treatise authored by

Professor Edward Imwinkelried, as follows:

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To be relevant, evidence must tend “ ‘to make the

existence of any fact that is of consequence to the

determination of the action more probable or less

probable than it would be without the evidence.’ ”

Crawford, 458 Mich at 389-390. Our Supreme Court

emphasized in Crawford, 458 Mich at 390, “The thresh-

old is minimal: ‘any’ tendency is sufficient probative

force.” Evidence is relevant if it “in some degree ad-

vances the inquiry,” McCormick, § 185, p 736, and is not

objectionable simply because it fails to supply conclu-

sive proof. “No single item of evidence can be rejected

upon the sole ground that it falls short of making a case;

if it contributes to that end it must be received, and its

sufficiency in connection with the other evidence must

be determined on a review of the whole when the case is

closed.” Collins v Beecher, 45 Mich 436, 438; 8 NW 97

(1881). Our Supreme Court highlighted this concept in

Brooks by quoting extensively from McCormick’s trea-

tise on evidence:

“Under our system, molded by the tradition of jury trial

and predominantly oral proof, a party offers his evidence

not en masse, but item by item. An item of evidence, being

but a single link in the chain of proof, need not prove

conclusively the proposition for which it is offered. It need

not ever make that proposition appear more probable than

not. Whether the entire body of one party’s evidence is

sufficient to go to the jury is one question. Whether a

particular item of evidence is relevant to his case is quite

another. It is enough if the item could reasonably show that

a fact is slightly more probable than it would appear

“This is the normal test for materiality: Does the item of

evidence even slightly increase or decrease the probability of the

existence of any material fact in issue? Standing alone, the item of

evidence need not have sufficient probative value to support a

finding that the fact exists. So long as the item of evidence affects

the balance of probabilities to any degree, the item is logically

relevant.” [Citation omitted.]

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without that evidence. Even after the probative force of the

evidence is spent, the proposition for which it is offered still

can seem quite improbable. Thus, the common objection

that the inference for which the fact is offered ‘does not

necessarily follow’ is untenable. It poses a standard of

conclusiveness that very few single items of circumstantial

evidence ever could meet. A brick is not a wall.” [Brooks,

453 Mich at 519, quoting 1 McCormick, Evidence (4th ed),

§ 185, p 776.]

Here, the question presented is not whether an

agency rate is reasonable per se under the circum-

stances, but whether evidence of an agency rate may

assist a jury in determining a reasonable charge for

family-provided attendant-care services. The fact that

an agency charges a certain rate for precisely the same

services that Hardrick’s parents provide does not prove

that the rate should apply to the parents’ services.

However, an agency rate for attendant-care services,

routinely paid by a no-fault carrier, is a piece of evidence

that throws some light, however faint, on the reason-

ableness of a charge for attendant-care services. See

Beaubien v Cicotte, 12 Mich 459, 484 (1864). In other

words, an agency rate supplies one measure of the value

of attendant care and is worthy of a jury’s consider-

ation. A jury may ultimately decide that an agency rate

carries less weight than the rate charged by an inde-

pendent contractor, or no weight at all. But the fact that

different charges for the same service exist in the

marketplace hardly renders one charge irrelevant as a

matter of law. Ultimately, the challenged evidence is

relevant and the trial court properly rejected ACIA’s

attempt to exclude it.

The relevancy of agency rates in determining a reasonable rate for

home care has long been implied in Michigan jurisprudence. See Reed v

Citizens Ins Co of America, 198 Mich App 443, 453; 499 NW2d 22 (1993)

(“The reasonableness of the expenses incurred may be judged by com-

parison with rates charged by institutions.”), overruled by Griffith v

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B. REASONABLE CHARGES IN THE MARKETPLACE

The dissent argues that “market rates” should dic-

tate a “ ‘reasonable charge’ for no-fault services....”

Post at 692. According to the dissent, “a reasonable

charge for attendant-care services provided by a family

member is determined by what the family member

could receive in the open market for providing similar

services.” Post at 692. The dissent reasons that the

“relevant market” includes “what an individual care

provider would be paid” or “what a health-care agency

might pay an ‘independent contractor’ to provide simi-

lar services.” Post at 692. After confining a “reasonable

charge” to the wage that might be earned by a family

member “in the open market,” the dissent contends

that agency rates lack relevance to market rates. Post at

692 (emphasis added).

Neither the no-fault act nor this state’s vast body of

no-fault caselaw mentions the term “relevant market.”

It commonly appears, however, in antitrust cases. A

claimant seeking to prove the existence of a monopoly

must establish the relevant market. Attorney General,

ex rel State Banking Comm’r v Michigan Nat’l Bank,

377 Mich 481, 489; 141 NW2d 73 (1966). The Michigan

Antitrust Reform Act, MCL 445.771 et seq., defines the

“relevant market” as “the geographical area of actual or

State Farm Mut Auto Ins Co, 472 Mich 521, 540; 697 NW2d 895 (2005)

(overruling the proposition that “room and board” and food provided

during home care are allowable expenses); Manley, 127 Mich App at 455

(“[C]omparison to rates charged by institutions provides a valid method

for determining whether the amount of an expense was reason-

able....”), rev’d 425 Mich 140 (1986) (omitting any analysis or comment

on the statement relevant here); Dunaj v Harry Becker Co, 52 Mich App

354, 358-359; 217 NW2d 397 (1974) (holding in a workers’ compensation

case “that medical services provided by a claimant’s wife are compensable

to the same extent as they would be if the services had been rendered by

someone other than the wife”).

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potential competition in a line of trade or commerce, all

or any part of which is within this state.” MCL

445.771(b). The United States Court of Appeals for the

Sixth Circuit has described the test for ascertaining a

relevant market as involving “the identification of those

products or services that are either (1) identical to or (2)

available substitutes for the defendant’s product or

service.” White & White, Inc v American Hosp Supply

Corp, 723 F2d 495, 500 (CA 6, 1983).

A relevant market includes a cluster of services or

products rather than a lone offering. “Relevant markets

are generally not limited to a single manufacturer’s

products, but are composed of products that have

reasonable interchangeability--i.e., gasoline rather than

ExxonMobil-branded gasoline.” Partner & Partner, Inc

v ExxonMobil Oil Corp, 326 Fed Appx 892, 899 (CA 6,

2009).

[D]efining a relevant product market is a process of

describing those groups of producers which, because of the

similarity of their products, have the ability -- actual or

potential -- to take significant amounts of business away

from each other. A market definition must look at all

relevant sources of supply, either actual rivals or eager

potential entrants to the market. [SmithKline Corp v Eli

Lilly & Co, 575 F2d 1056, 1063 (CA 3, 1978).]

Under federal law, determining the parameters of the

relevant market presents questions of fact. White &

White, 723 F2d at 499-500.

The Legislature selected “reasonableness” as the

operative criterion for determining the amount of a

charge for services. MCL 500.3107(1)(a). To the extent

that the market for a particular service bears on its

Michigan’s antitrust laws are patterned after federal statutes. ETT

Ambulance Serv Corp v Rockford Ambulance, Inc, 204 Mich App 392, 397;

516 NW2d 498 (1994).

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reasonableness, the parameters of the relevant market

present jury questions. Consumers of attendant-care

services may select among a variety of providers, includ-

ing themselves. Viewed through the antitrust-law lens,

the relevant market for attendant-care services in-

cludes agency-provided services, family-provided ser-

vices, and independently contracted care. We find im-

plausible the notion that a “relevant market” may

exclude real-life competitors for precisely the same

services. A true “market approach” considers the actual

marketplace rather than an artificial construct re-

stricted to but one choice.

Further, the dissent’s wage-based approach to defin-

ing a “reasonable charge” cannot be reconciled with the

language of the no-fault act. According to the dissent, “a

reasonable charge for any attendant-care services plain-

tiff’s parents provide is the equivalent of what compen-

sation they could command on the open market for

providing similar services to unrelated persons. This, in

turn, would depend on their qualifications, training,

experience, and what persons providing similar services

could earn.” Post at 692. Thus, the dissent limits a

“reasonable charge” for attendant-care services sup-

plied by family members to “what the family member

could receive in the open market for providing similar

services.” Post at 692. This definition conflates an

employee’s wage with a provider’s reasonable charge.

The governing statutory language provides that a

no-fault insurer must pay “[a]llowable expenses con-

sisting 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) (emphasis added). To charge is

“ ‘[t]o demand a fee; to bill.’ ” Holland v Trinity Health

Care Corp, 287 Mich App 524, 528; 791 NW2d 724

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(2010), quoting Black’s Law Dictionary (8th ed). As a

noun, the word “charge” means “[t]he price set or asked

for something.” The American Heritage Dictionary (2d

college ed, 1982). MCL 421.44(2) defines “wages” as

“remuneration paid by employers for employment[.]” A

worker’s wage contributes to the charge for a service,

but the two are simply not equivalent. Real life ex-

amples readily distinguish the two concepts. If one

orders a pizza for delivery, a delivery charge may attach.

The delivery charge and the pizza deliverer’s wage are

highly unlikely to correspond. Alternatively, one may

hire a car service to provide transportation to an

airport. The charge for the service will certainly exceed

the wage paid to the driver.

Another legal analogy illustrates the fundamental

distinction between wages and reasonable charges. At-

torney fee statutes such as 42 USC 1988 authorize

courts to award a “reasonable attorney’s fee” to prevail-

ing litigants. Reasonable fees, equivalent to reasonable

charges, are generally “calculated according to the

prevailing market rates in the relevant community,

regardless of whether plaintiff is represented by private

or non-profit counsel.” Blum v Stenson, 465 US 886,

895; 104 S Ct 1541; 79 L Ed 2d 891 (1984).

In seeking some basis for a standard, courts properly

have required prevailing attorneys to justify the reason-

ableness of the requested rate or rates. To inform and

assist the court in the exercise of its discretion, the burden

is on the fee applicant to produce satisfactory evidence -- in

addition to the attorney’s own affidavits -- that the re-

quested rates are in line with those prevailing in the

community for similar services by lawyers of reasonably

comparable skill, experience, and reputation. A rate deter-

mined in this way is normally deemed to be reasonable, and

is referred to -- for convenience -- as the prevailing market

rate. [Id. at 895 n 11.]

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In Smith v Khouri, 481 Mich 519; 751 NW2d 472

(2008), our Supreme Court considered the method for

determining a “reasonable attorney fee” under the case

evaluation rule, MCR 2.403(O)(6). The Supreme Court

specifically rejected the notion that a reasonable attor-

ney fee equated with an attorney’s actual wage, explain-

ing that the court rule

only permits an award of a reasonable fee, i.e., a fee similar

to that customarily charged in the locality for similar legal

services, which, of course, may differ from the actual fee

charged or the highest rate the attorney might otherwise

command. As Coulter v Tennessee, 805 F2d 146, 148 (CA 6,

1986), explains, reasonable fees “are different from the

prices charged to well-to-do clients by the most noted

lawyers and renowned firms in a region.” [Smith, 481 Mich

at 528 (opinion by T

AYLOR

, C.J.) (emphasis omitted).]

Instead, several factors determine a reasonable attor-

ney fee, including “ ‘the fee customarily charged in the

locality for similar legal services’ ” and the number of

attorney hours expended in the litigation. Id. at 530

(citation omitted). The “relevant market” for this in-

quiry encompasses the locality in which the case was

litigated. Id. The Supreme Court took pains to empha-

size that “[t]he fees customarily charged in the locality

for similar legal services” should be the measure, rather

than the fee charged by an area’s top lawyers. Id.at

531.

In the no-fault realm, this Court has repeatedly

rebuffed efforts by both providers and insurers to

circumscribe a fact-finder’s reasonable-charge determi-

nation. In Hofmann v Auto Club Ins Ass’n, 211 Mich

App 55, 113; 535 NW2d 529 (1995), this Court rejected

the argument that the “customary fee” obtained by a

provider for patients insured by Blue Cross and Blue

Shield of Michigan (BCBSM) defined the “reasonable

charge” for the service, reasoning:

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ACIA’s reasoning is premised on the principle that BCB-

SM’s “payments” to plaintiffs for x-rays, as opposed to plain-

tiffs’ “charges” to BCBSM for those x-rays, are the proper

criteria to be used in determining the plaintiffs’ “customary

charge” for x-rays. This position is untenable, however, in

light of the clear statutory language of [MCL 500.3157],

which states that a “charge” in a no-fault case “shall not

exceed the amount [a] person or institution customarily

charges for like products, services and accommodations in

cases not involving insurance” (emphasis added). Thus,

ACIA’s reliance on the amount that was “paid” by BCBSM,

as opposed to the amount that plaintiffs “charged,” is unwar-

ranted.

In Mercy Mt Clemens Corp v Auto Club Ins Ass’n, 219

Mich App 46, 54-55; 555 NW2d 871 (1996), this Court

extended Hofmann by holding that the amount paid by

Medicare, Medicaid, workers’ compensation insurers,

and BCBSM “is not admissible to prove the customary

charge that defendant must pay under [MCL

500.3157].” These precedents instruct that the no-fault

act does not confine a provider’s reasonable charge to

the amount the provider customarily receives from

third-party payors.

C. OTHER RELEVANT EVIDENCE

Given that many factors influence the determination

of a “reasonable charge” for attendant-care services, a

jury may consider a provider’s wage as one piece of

evidence relevant to this calculation. We view the rea-

sonableness inquiry as encompassing any evidence

bearing on fair compensation for the particular services

rendered. The principles supporting the relevancy of

agency rates equally support the relevancy of other

evidence. For example, Ancell testified that an agency

would pay its employees less than the $25 to $45 hourly

rate charged to the patient. Evidence of the employee’s

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hourly wage throws some light, however faint on the

reasonableness of a charge for attendant-care services.

Beaubien, 12 Mich at 484. ACIA correctly notes that the

jury should hear such evidence to more fully and

accurately calculate a reasonable rate for the services

rendered.

Similarly, evidence of the “overhead” incurred (or not

incurred) by Hardrick’s parents would be relevant to

calculating a reasonable charge. In this regard, we find

instructive Sharp v Preferred Risk Mut Ins Co, 142

Mich App 499; 370 NW2d 619 (1985). In Sharp, this

Court acknowledged that a family’s provision of atten-

dant care can include more than time for care services

rendered. Sharp’s mother personally hired and coordi-

nated the home-nursing staff, and managed the busi-

ness side of Sharp’s care. This Court determined that

the cost of such “overhead” was properly considered in

calculating a reasonable rate for the caregiver’s ser-

vices. Id. at 513-515.

A parent who personally provides attendant-care

services also certainly bears an “opportunity cost.”

“The term ‘opportunity cost,’ which is borrowed from

the field of economics, refers to the amount that is

sacrificed when choosing one activity over the next best

alternative.” Mira v Nuclear Measurements Corp, 107

F3d 466, 472 (CA 7, 1997) (citation and some quotation

marks omitted). “[T]he opportunity one gives up by

engaging in some activity is the cost of that activ-

ity....”Chronister Oil Co v Unocal Refining & Mktg,

34 F3d 462, 465 (CA 7, 1994). Limiting a family mem-

ber’s “reasonable charge” to a wage ignores these other

costs. In the end, the Legislature commanded that

no-fault insurers pay a “reasonable charge” for

attendant-care services, thereby consigning to a jury

the necessary economic-value choices.

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This analysis is consistent with Sokolek v Gen Motors

Corp, 450 Mich 133; 538 NW2d 369 (1995). Sokolek is a

workers’ compensation case in which the parties dis-

puted the reasonable rate for a relative who provided

“other attendance” recognized under MCL 418.315(1)

of the workers’ compensation act. The Sokolek Court

determined that the issue should be left to the trier of

fact, noting that “[m]any considerations may be neces-

sary to make such a determination.” Sokolek, 450 Mich

at 145 (opinion by B

RICKLEY

, C.J., and L

EVIN

, J.). As

noted in Sokolek:

The defendant argues that there is no reason why the

plaintiff’s wife should receive the extra money that an

agency charges to address administrative costs. Although

we agree that this argument is logically compelling, we

hold that what level of compensation is reasonable is a

factual determination for the magistrate to decide.

***

[T]he magistrate is in a better position than an appel-

late court to make this determination. The record before us

on appeal is limited, and it is difficult for us to know

whether it would be appropriate to award at least part of

the extra expense required to hire a home companion from

a nursing agency. Many considerations may be necessary to

make such a determination.

For example, the cost of minimal benefits and social

security contributions may be included in the higher

hourly rate paid to a nursing agency, and it may be

necessary to provide similar benefits to an independent

companion, over and above a standard salary. Nursing

agencies may also pay to provide training to their employ-

ees above and beyond the abilities of an independent

companion, training that may be necessary to care for the

plaintiff. In short, this is a multifaceted factual issue,

involving the various types of in-home care available, the

duties performed by them, their customary billing and

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payment practices, and the type of services being performed

by the plaintiff’s wife. [Id. at 145-146 (emphasis added).]

None of the evidence proffered by ACIA or Hardrick,

or even mentioned by this Court, is dispositive of the

reasonable-charge issue. Rather, the evidence provides

a collage of factors affecting the reasonable rate that

may be charged by Hardrick’s parents for the services

they provide.

D. RELEVANCY PRINCIPLES APPLIED

The no-fault act entitles providers of attendant care

to impose a “reasonable charge” for their services. The

reasonable-charge provision applies to family members,

agencies, and independent contractors. In a recent case

construing MCL 500.3107(1)(a), our Supreme Court set

forth several definitions of the term “reasonable,” in-

cluding “that which is ‘agreeable to or in accord with

reason; logical,’ or ‘not exceeding the limit prescribed

by reason; not excessive,’ ” and “ ‘fair, proper, or mod-

erate under the circumstances’ and ‘[f]it and appropri-

ate to the end in view.’ ” Krohn v Home-Owners Ins Co,

490 Mich 145, 159; 802 NW2d 281 (2011) (citations

omitted). These definitions of the term “reasonable”

demonstrate “an absence of the personal sentiment,

prejudice, and bias associated with a subjective point of

view....” Id. A subjective view is “ ‘based on an

individual’s perceptions, feelings, or intentions’ rather

than the ‘externally verifiable phenomena’ associated

with an objective viewpoint.” Id. (citations omitted). In

Krohn, the Supreme Court held that an objective stan-

dard guides an assessment of the term “ ‘reasonably

necessary.’ ” Id. at 163. We discern no basis for applying

a different standard to the term “reasonable charge.”

“[T]he question whether expenses are reasonable

and reasonably necessary is generally one of fact for the

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jury....”Nasser v Auto Club Ins Ass’n, 435 Mich 33,

55; 457 NW2d 637 (1990). In making this determina-

tion, a jury is entitled to consider evidence relevant to

the reasonableness of the charge. MRE 401 defines

relevant evidence in expansive terms. As Justice C

OOLEY

explained in Stewart v People, 23 Mich 63, 75 (1871):

“The proper test for the admissibility of evidence ought

tobe...whether it has a tendency to affect belief in the

mind of a reasonably cautious person, who should

receive and weigh it with judicial fairness.” The amount

charged for attendant-care services substantially simi-

lar to the services provided by Hardrick’s parents

affords a logical basis for calculating a “reasonable

charge.” The charges made by others for the same

services provided by Hardrick’s parents may incorpo-

rate fees and costs not present within the Hardrick

household, but as with any evidence, these shortcom-

ings affect the weight of the evidence rather than its

admissibility.

E. JURY INSTRUCTIONS

As noted, ACIA requested special jury instructions

designed to limit or direct the jury’s consideration of

the factors relevant to establishing a “reasonable

charge” for services. We review de novo the trial court’s

rejection of ACIA’s requested special jury instructions.

Heaton v Benton Constr Co, 286 Mich App 528, 537; 780

We respectfully disagree with the dissent’s contention that evidence

establishing only the “outer boundaries” of an issue “is not helpful to

prove the fact at issue.” Post at 695. Usually, no single piece of evidence

proves a case. Individual pieces of evidence, like bricks, join together to

form a wall of proof. An agency rate may represent the “outer boundary”

of a reasonable charge for attendant-care services, but along with other

evidence including rates charged by independent contractors, a litigant

may elect to incorporate evidence of agency rates in a wall of proof

supporting the reasonableness of the rate claimed.

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NW2d 618 (2009). Instructional error warrants reversal

when it affects the outcome of the trial. MCR 2.613(A);

Jimkoski v Shupe, 282 Mich App 1, 9; 763 NW2d 1

(2008).

ACIA presented two alternative jury instructions to

guide the jury’s consideration. Proposed Alternative A

instructed the jury that “[a]mounts charged by health

care agencies cannot be considered in determining

reasonable compensation.” The trial court properly

rejected that instruction because it would have pre-

cluded the jury’s consideration of relevant evidence.

ACIA’s proposed Alternative B, on the other hand,

recognizes the multifaceted nature of the required

calculation:

Plaintiff can recover benefits for care provided by mem-

ber[s] of Plaintiff’s family at its reasonable market value.

In determining the reasonable market value of such care,

you are to consider:

(l) the type and amount of care Plaintiff reasonably

needed;

(2) the various types of in-home care available from

outside care providers;

(3) the duties performed by outside care providers;

(4) the customary billing and payment practices of

outside care providers; and

(5) the type and amount of services being performed by

the member[s] of Plaintiff’s family.

There is evidence that rates charged by home care

agencies are higher than the amounts paid to the employ-

ees who actually render care. The difference between the

rates charged by agencies and the amounts paid to its

employees include agency overhead, such as social security

contributions, malpractice insurance, health insurance,

disability insurance, office clerical staff, rent, legal fees,

accounting costs and office supplies, in addition to profit

for the agency. In determining the amount owed for care

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rendered by member[s] of Plaintiff’s family, you are to

consider whether any additional amounts charged by home

care agencies are also necessary for the family member to

provide care to Plaintiff.

Alternative B accurately reflects that many factors

are relevant to the reasonable-rate issue. Alternative B

is consistent with Sokolek’s analysis of a reasonable

rate for home-provided care in the workers’ compensa-

tion realm. See Sokolek, 450 Mich at 145-146 (opinion

by B

RICKLEY

, C.J., and L

EVIN

, J.). It is consistent with

Sharp’s recognition that even family-provided care may

include “overhead” costs. Sharp, 142 Mich App at

513-515. And the proposed instruction allows the jury

to consider a broad spectrum of relevant evidence. We

therefore conclude that the trial court should have

presented this proposed instruction to adequately and

accurately inform the jury.

Whether the charge sought by Hardrick’s parents

qualifies as “ ‘fair, proper, or moderate under the cir-

cumstances’ ” and “ ‘[f]it and appropriate to the end in

view,’ ” Krohn, 490 Mich at 159 (citations omitted), will

be more fully and clearly assessed based on evidence

corresponding to this jury instruction. The jury must

weigh agency charges against the charges made by

other providers of the same or similar services to

determine a reasonable fee. Because ACIA will be able

to present such evidence on retrial, the jury will be able

to calculate a reasonable charge for Hardrick’s parents’

services under the circumstances.

Accordingly, we vacate the judgment against ACIA

and remand for a new trial consistent with this opinion.

ACIA also challenges the court’s award of no-fault penalty interest for

unreasonably delaying payment after proof of loss was presented. Be-

cause this issue may be eliminated on retrial, we decline to comment on

the propriety of the award.

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OURT

Neither party may tax costs pursuant to MCR 7.219 as

neither party prevailed in full. We do not retain juris-

diction.

AWYER

, J., concurred with G

LEICHER

,P.J.

ARKEY

,J.(concurring in part and dissenting in

part). I agree with the majority that the trial court

abused its discretion by imposing an unjust and dispro-

portionate discovery sanction and that, therefore, the

judgment for attendant care and attorney fees must be

vacated and this case remanded for a new trial. I

respectfully disagree, however, that agency rates are

relevant to determining a reasonable charge for atten-

dant care provided by family members under the no-

fault insurance act. MCL 500.3107(1)(a). I find persua-

sive the discussion on this issue in Bonkowski v Allstate

Ins Co, 281 Mich App 154, 164-165; 761 NW2d 784

(2008). I would hold inadmissible evidence of rates

agencies charge to provide caregivers; the hourly rate

necessary to operate a business to provide individual-

care givers is not material to the question of a reason-

able charge to compensate individual family members

who provide attendant care to injured loved ones. The

jury should be instructed consistent with this ruling.

In Docket No. 294875, defendant Auto Club Insur-

ance Association (defendant or ACIA), appeals by right

the judgment entered in plaintiff’s favor for attendant

care as an allowable expense under the no-fault act,

MCL 500.3107(1)(a). In Docket Nos. 298661 and

299070, defendant appeals the trial court’s order for

attorney fees under MCL 500.3148(1).

Plaintiff suffered a traumatic brain injury after being

struck by an automobile while walking home from his

job. Plaintiff asserted that although his parents were

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not licensed or formally trained caregivers, other than

receiving direction from plaintiff’s treating doctors,

they should be compensated $25 to $45 an hour—what

agencies would charge to provide high-skilled caregiv-

ers capable of handling plaintiff’s emotional problems.

At trial, because of a discovery sanction, defendant was

not permitted to present any witnesses or any affirma-

tive evidence. Plaintiff’s parents, the caregivers, did not

testify, and defendant’s cross-examination was limited

to the scope of the direct testimony elicited by plaintiff.

At the close of plaintiff’s evidence, plaintiff moved for a

directed verdict on the issues that (1) the claimed

attendant-care expenses had been incurred, and (2)

absent contrary evidence, the value of the attendant

care was no lower than $25 and no higher than $45 an

hour. The trial court granted plaintiff’s motion and so

instructed the jury, which returned a verdict for plain-

tiff that a reasonable charge for attendant care was $28

an hour. Together with penalty interest under MCL

500.3142(3), the resulting judgment was entered for

$333,354.01, even though ACIA had already paid plain-

tiff’s parents $10.25 or $10.50 an hour for all hours of

care claimed.

In Docket Nos. 298661 and 299070, defendant ap-

peals the trial court’s order for attorney fees under

MCL 500.3148(1), asserting bona fide factual issues

existed regarding the reasonable level of attendant care

plaintiff required and the reasonable rate that plain-

tiff’s parents could charge for it. Alternatively, defen-

dant argues that the trial court assessed an unreason-

ably high attorney fee.

I. FAMILY-PROVIDED ATTENDANT CARE

Before trial, defendant filed with the court requests

for jury instructions based on Sokolek v Gen Motors

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Corp, 450 Mich 133, 144-145; 538 NW2d 369 (1995),

and Bonkowski, 281 Mich App 154. The essence of the

requested instructions was that the market rate for

family-provided attendant care must be based on what

a similarly skilled care provider doing the same work

could earn if employed by an unrelated employer. In

other words, the pertinent market rate for determining

the value of the family-provided care is a similar work-

er’s wage, not the hourly fees that a health-care agency

would charge to provide a health-care worker that

includes the agency’s operating expenses in addition to

what the agency would pay the caregiver.

Defendant also filed a motion in limine seeking to

preclude plaintiff from introducing evidence of amounts

health-care agencies charge for providing home atten-

dant care. On the basis of Sokolek and Bonkowski,

defendant argued that rates health-care agencies

charge are irrelevant in determining compensation for

unlicensed family members who provide attendant care.

Defendant argued that the only relevant evidence is

evidence regarding what such agencies would pay to

their health-care employees to provide services similar

to what the family member provided. Plaintiff argued

that the discussion in Bonkowski on this issue is non-

binding dicta, and that Manley v Detroit Auto Inter-Ins

Exch, 127 Mich App 444; 339 NW2d 205 (1983), rev’d

and remanded 425 Mich 140 (1986), provides the con-

trolling rule of law. In Manley, the Court opined that

“comparison to rates charged by institutions provides a

valid method for determining whether the amount of an

expense was reasonable and for placing a value on

comparable services performed by” family members.

Manley, 127 Mich App at 455. The trial court denied the

motion and also denied defendant’s request for supple-

mental jury instructions.

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Thus, defendant presents the fundamental question:

what relevance do agency rates have in determining

reasonable compensation for nonlicensed family-

provided attendant care?

A. STANDARD OF REVIEW

A trial court’s decision to admit or exclude evidence

is reviewed on appeal for an abuse of discretion. Craig v

Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004).

A trial court abuses its discretion when its decision

results in an outcome falling outside the range of

principled outcomes. Barnett v Hidalgo, 478 Mich 151,

158; 732 NW2d 472 (2007). But questions of law under-

lying a trial court’s evidentiary decision, such as the

application of a constitutional provision, statute, court

rule, or rule of evidence, are reviewed de novo. Id.at

159; Waknin v Chamberlain, 467 Mich 329, 332; 653

NW2d 176 (2002).

Allegations of instructional error are reviewed de

novo. Heaton v Benton Constr Co, 286 Mich App 528,

537; 780 NW2d 618 (2009). Instructional error will not

warrant reversal unless it affected the outcome of the

trial. MCR 2.613(A); Jimkoski v Shupe, 282 Mich App 1,

9; 763 NW2d 1 (2008). Ultimately, this issue depends on

the interpretation and application of the no-fault act, a

question of law reviewed de novo. Bonkowski, 281 Mich

App at 164.

B. ANALYSIS

The questions presented are what evidence is rel-

evant and what courts should instruct jurors in decid-

ing what constitutes a “reasonable charge” for reason-

ably necessary attendant-care services, under MCL

500.3107(1)(a), provided by a family member to another

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member of the family injured in an automobile acci-

dent. Stated otherwise, how should fact-finders deter-

mine reasonable compensation for family members of

the injured person who provide attendant care that is

an allowable expense under the no-fault act? I find that

the pertinent discussion of this issue in Bonkowski is

persuasive dicta. “It is permissible for an appellate

court to find dictum persuasive and decide to follow it.”

Schoenherr v Stuart Frankel Dev Co, 260 Mich App 172,

181; 679 NW2d 147 (2003) (W

HITBECK

, C.J., concurring).

I also find that defendant’s argument has logical merit,

and is consistent with the limiting language of the

no-fault act and the act’s cost-containment public-

policy goals. Sokolek, 450 Mich at 145 (opinion by

RICKLEY

, C.J., and L

EVIN

, J.); Advocacy Org for Patients

& Providers v Auto Club Ins Ass’n, 257 Mich App 365,

376-378; 670 NW2d 569 (2003). I would hold that the

trial court erred by not granting defendant’s motion in

limine and also erred by refusing to instruct the jury as

requested.

I would therefore reverse and remand for a

new trial for these reasons as well.

Defendant’s proposed “Alternative A” jury instruction provides:

Family members are entitled to reasonable compensation for

care provided to an injured person. In determining reasonable

compensation for a family member who provides health care

services, you may consider the compensation paid to licensed

health care professionals who provide similar services. Amounts

charged by health care agencies cannot be considered in determin-

ing reasonable compensation.

In determining the amount owed for care rendered by [a]

member[s] of Plaintiff’s family, you are to consider:

(1) the type and amount of care Plaintiff reasonably needed;

(2) the type and amount of services actually performed by [a]

member[s] of Plaintiff’s family;

(3) whether the family member was a licensed health care

provider;

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First, contrary to plaintiff’s argument, Manley, 127

Mich App 444, is not controlling or binding legal prece-

dent. Manley was decided before November 1, 1990, and

was reversed by our Supreme Court, 425 Mich 140.

Consequently, it lacks precedential authority. MCR

7.215(J); Bradacs v Jiacobone, 244 Mich App 263,

268-269; 625 NW2d 108 (2001), citing Mitchell v Gen

Motors Acceptance Corp, 176 Mich App 23, 34; 439

NW2d 261 (1989). Moreover, the Supreme Court did not

adopt, or even discuss, the pertinent statement in the

Court of Appeals opinion that “comparison to rates

charged by institutions provides a valid method for

determining whether the amount of an expense was

reasonable and for placing a value on comparable ser-

vices performed by” family members. Manley, 127 Mich

App at 455. As a result, there can be no remaining

controlling or binding legal precedent from the Court of

Appeals decision in Manley on the issue of family-

provided attendant care. Dunn v Detroit Auto Inter-Ins

Exch, 254 Mich App 256, 262; 657 NW2d 153 (2002).

Additionally, the issue presented in Manley con-

cerned whether the parents of the injured plaintiff

could claim as an allowable expense charges for room

and board and nurse’s aides for their son. See Manley,

127 Mich App at 451-455. While the Supreme Court

affirmed this Court’s ruling that insurers are obligated

under the no-fault act to pay parents if they provide

their children with services that are allowable expenses

under the act, Manley, 425 Mich at 153, 159-160, the

Court did not discuss methods for determining the

(4) the types of in-home care available from outside care

providers; and

(5) the amounts outside care providers would have been paid to

provide the type and amount of services Plaintiff received from [a]

member[s] of [his/her] family.

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value of such services. And, although the parents ob-

tained an award for past services, this part of the award

was not considered by either appellate court. Id. at 149.

Thus, the Court in Manley did not decide the method of

determining a reasonable charge for family-provided

attendant care.

Despite its lack of precedential value, subsequent

panels of this Court have cited the Manley dicta. In

Sharp v Preferred Risk Mut Ins Co, 142 Mich App 499,

513; 370 NW2d 619 (1985), the Court found it reason-

able for a mother to charge the no-fault insurer slightly

more than what she paid for nurses and nurse’s aides to

care for her injured son. The Court reasoned that this

compensated the mother for administrative services of

“seeking, interviewing, selecting, training, and super-

vising the nurses” and “billing the insurance company,

and paying the nurses.” Id. The Court found this

“consistent with Manley” and reasonable in that case

because the “plaintiff charges less than similar institu-

tions....” Id. at 514. Because Sharp was decided

before November 1, 1990, it also lacks binding prece-

dential authority. MCR 7.215(J).

In Reed v Citizens Ins Co of America, 198 Mich App

443; 499 NW2d 22 (1993), overruled by Griffith v State

Farm Mut Auto Ins Co, 472 Mich 521, 540 (2005), this

Court again followed the Manley dicta. Reed noted that

the Sharp Court had opined that “[t]he reasonableness

of the [allowable] expenses incurred may be judged by

comparison with rates charged by institutions.” Reed,

198 Mich App at 453. Because our Supreme Court

subsequently overruled Reed, it too has no binding

precedential authority. Mitchell, 176 Mich App at 34.

Nevertheless, even though it lacks precedential au-

thority, I find that the Manley Court correctly opined

that “ ‘allowable expenses’...areimplicitly purchased

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by [the injured person] at their reasonable market

value.” Manley, 127 Mich App at 455. That is, the

reasonable or market value of the attendant-care ser-

vices plaintiff “purchased” from his parents is what

they could receive by marketing similar services to

unrelated purchasers when insurance is not involved.

This would be consistent with the plain language of

MCL 500.3107(1)(a), limiting allowable expenses to

“reasonable charges.” What payment plaintiff’s parents

could command on the open market would depend on

their qualifications, training, experience, demand for

the service, and other factors. What an agency might

charge to provide a caregiver of such services is not

relevant because it does not accurately reflect what the

individual caregiver would earn.

The Bonkowski Court discussed these market prin-

ciples in a case very similar to the present case in that

it involved family-provided attendant care, and many of

the same experts testified. The plaintiff in Bonkowski

was severely injured, suffering not only traumatic brain

injury but also spinal injuries that rendered him a

quadriplegic. Bonkowski, 281 Mich App at 157-158. The

plaintiff was discharged from the hospital to the care of

his father, Andrew, who received some training from the

hospital for that purpose but otherwise only had the

educational equivalent of a high school degree. Id.at

158-159. Allstate, the no-fault insurer, agreed to pay

Andrew approximately $166,000 a year to provide at-

tendant care for the plaintiff, but the plaintiff de-

manded that Andrew be paid $34 an hour instead of the

$19 an hour proposed by Allstate. Id. at 159. At trial,

defense counsel contended that the testimony of plain-

tiff’s experts based on “agency rates” would include a

plethora of business expenses that Andrew would not

incur. Id. at 161-162. Also, the defendant’s claims

adjuster testified that Allstate “was unwilling to pay the

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agency rate for Andrew to care for plaintiff because an

agency is licensed and incurs more expenses.” Id.at

162. The jury returned a verdict in the plaintiff’s favor.

Id. at 163.

On appeal, the issue of using agency rates as a basis

for determining the reasonableness of charges for

family-provided attendant care was not squarely pre-

sented because Allstate had not argued in the trial court

that Manley was wrongly decided. Nevertheless, the

Bonkowski Court questioned the Manley dicta and

opined:

Under MCL 500.3107, family members are entitled to

reasonable compensation for the services they provide at

home to an injured person in need of care. In determining

reasonable compensation for an unlicensed person who

provides health care services, a fact-finder may consider

the compensation paid to licensed health care professionals

who provide similar services. For this reason, consideration

of the compensation paid by health care agencies to their

licensed health care employees for rendering services simi-

lar to the services provided by unlicensed family members

is appropriate when determining reasonable compensation

for those family members. However, the actual charges

assessed by health care agencies in the business of provid-

ing such services is not relevant and provides no assistance

in determining reasonable compensation for the actual

provider of such services. The focus should be on the

compensation provided to the person providing the ser-

vices, not the charge assessed by an agency that hires

health care professionals to provide such services.

[Bonkowski, 281 Mich App at 164-165.]

In dicta, the Bonkowski Court opined that the mar-

ket rate or reasonable charge that a family member

providing attendant care may charge can be determined

from evidence of what persons providing similar care

would be paid, not by what an agency would be paid to

provide a care worker to perform similar services. But,

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the Court affirmed the jury verdict because Allstate did

not properly preserve or properly present the issue in

this Court and because substantial evidence docu-

mented Andrew’s care of the plaintiff, the reasonable-

ness of which was a question of fact for the jury.

Bonkowski, 281 Mich App at 167-169.

The Bonkowski Court also addressed the issue of

agency rates when it held that the trial court had erred

by awarding attorney fees under MCL 500.3148(1)

because Allstate had a bona fide factual basis to chal-

lenge the plaintiff’s claim. On this point, the Court

opined:

Neither the medical community nor the legal commu-

nity has established a hard and fast rule for determining

the reasonable rate of compensation due unlicensed indi-

viduals who provide necessary health care services to

family members. While consideration of rates paid to

licensed and trained health care providers is appropriate,

the law does not require that unlicensed individuals who

have not earned a degree in a pertinent health care

profession be paid the same compensation paid to licensed

health care professionals. It can hardly be disputed that the

greater the time a health care professional invests in his or

her education and training, the greater the compensation

would be for that professional. Andrew received specialized

training to allow him to provide professional quality care to

his son in an array of disciplines. However, Andrew’s

training was provided over the course of four months.

Andrew did not invest years to obtain an education and

specialized training to become a medical professional.

Quality care made possible by the dedication and love of

family members is often preferable to institutional care.

Yet, this Court has recognized that family-provided accom-

modations are generally less costly than institutional care.

Under these circumstances we cannot conclude that defen-

dant acted unreasonably when it offered to compensate

Andrew at the lower end of the range of what a licensed

and formally educated health care professional might ex-

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pect to command in the open market. [Bonkowski, 281

Mich App at 172-173 (citation omitted).]

I would combine the reasoning of Manley that mar-

ket rates control what is a “reasonable charge” for

no-fault services with the reasoning of Bonkowski re-

garding the relevant market: what an individual care

provider would be paid. I would hold that a reasonable

charge for attendant-care services provided by a family

member is determined by what the family member

could receive in the open market for providing similar

services. So, under § 3107 a reasonable charge for any

attendant-care services plaintiff’s parents provide is the

equivalent of what compensation they could command

on the open market for providing similar services to

unrelated persons. This, in turn, would depend on their

qualifications, training, experience, and what persons

providing similar services could earn. Perhaps the clos-

est market equivalent is what a health-care agency

might pay an “independent contractor” to provide simi-

lar services.

The companion case of Mullins v Frank H Wilson Co,

decided with Sokolek, 450 Mich 133, supports my con-

clusion that agency rates do not accurately reflect, and

therefore are not relevant to, the market rate of family-

provided attendant care. At issue in Mullins was

whether, in a workers’ compensation case, Mullens’s

wife was entitled to be compensated for attendant care

at an agency rate for a “ ‘homemaker companion’ ” or

at only half that rate as the cost to hire an independent

nurse’s aide. Id. at 144 (opinion by B

RICKLEY

, C.J., and

EVIN

, J.). As in the no-fault act, MCL 418.315(1)

provides for “reasonable” services, which “refers not

only to the services to be performed, but to the compen-

sation to be paid to the provider of such services.”

Sokolek, 450 Mich at 144-145 (opinion by B

RICKLEY

, C.J.,

and L

EVIN

, J.). The Court found the defendant’s argu-

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ment “that there is no reason why the plaintiff’s wife

should receive the extra money that an agency charges

to address administrative costs” was “logically compel-

ling....”Id. at 145. The Court held, however, that the

reasonable level of compensation was a multifaceted

factual determination for the fact-finder to resolve. Id.

at 145-146.

Another question presented here is whether a rea-

sonable charge for family-provided attendant care

would include shift premiums, overtime, and benefits

that a health-care worker might earn if employed by an

agency. The Bonkowski Court suggested that a reason-

able charge by a family member for attendant care

would not include shift premiums and overtime.

Bonkowski, 281 Mich App at 173. The Court in Mullins

suggested it may be necessary to include benefits simi-

lar to those earned by health-care workers. Sokolek, 450

Mich at 145-146 (opinion by B

RICKLEY

, C.J., and L

EVIN

J.). Under the market analysis discussed above, shift

premiums, overtime, and benefits would likely not

factor into determining a reasonable charge for family-

provided attendant care. Shift premiums and overtime

are generally paid in circumstances when the law

requires it or when necessitated by supply and demand

to hire and retain people to work unpopular shifts.

Family members providing services to other family

members are not covered by labor laws; presumably,

they are motivated by nonfinancial reasons. Similarly,

health-care agencies pay their workers benefits to at-

tract and retain employees. It seems unlikely that a

family member marketing his or her health-care ser-

vices outside the family could command both a salary

and benefits as an independent contractor. On the other

hand, if there were evidence to support it, the issue

would be for the fact-finder to determine. Id. at 145;

Bonkowski, 281 Mich App at 169.

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My market analysis is also consistent with the cost-

containment public policy goals of the no-fault act.

“ ‘The basic goal of the no-fault insurance system is to

provide individuals injured in motor vehicle accidents

assured, adequate and prompt reparation for certain

economic losses at the lowest cost to the individual and

the system.’ ” Advocacy Org, 257 Mich App at 377,

quoting Gooden v Transamerica Ins Corp of America,

166 Mich App 793, 800; 420 NW2d 877 (1988). With

respect to holding health-care costs down, “the plain

and ordinary language of § 3107 requiring no-fault

insurance carriers to pay no more than reasonable

medical [or other allowable] expenses, clearly evinces

the Legislature’s intent to place a check on health care

providers who have no incentive to keep the doctor [or

allowable expense] bill at a minimum.” McGill v Auto

Ass’n of Mich, 207 Mich App 402, 408; 526 NW2d 12

(1994) (quotation marks and citation omitted).

Finally, while I generally agree with the majority’s

discussion of relevance under MRE 401, I respectfully

disagree with the majority’s application of the “any

tendency” standard in this circumstance where agency

rates can only be said to be relevant because they

encompass evidence at the heart of the issue: what

individual caregivers are paid to provide the services at

issue. The analogy of “[a] brick is not a wall” the

majority discusses, see People v Brooks, 453 Mich 511,

518; 557 NW2d 106 (1996), quoting 1 McCormick,

Evidence (4th ed), § 185, p 776, illustrates the problem

with admitting evidence of agency rates in this case.

Admitting evidence of agency rates in this case is akin to

admitting evidence of the dimensions of a brick wall to

prove the dimensions of the individual bricks that com-

prise the wall or admitting evidence of the cost to build the

brick wall to estimate the cost of the individual bricks. In

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either scenario, the evidence only establishes outer

boundaries; it is not helpful to prove the fact at issue.

This point is illustrated in People v Coy, 243 Mich

App 283; 620 NW2d 888 (2000). In a murder trial, the

prosecution introduced evidence that the DNA of the

defendant was consistent with blood found on a knife

blade and on a doorknob but did not provide evidence of

the likelihood of the potential match. The Court opined

that without statistical-based interpretive testimony

the DNA evidence lacked “ ‘relevance or meaning to the

trier of fact’ ” and was “ ‘ “meaningless” to the jury

and, thus, inadmissible.’ ” Id. at 298-299, quoting Nel-

son v State, 628 A2d 69, 76 (Del, 1993). Even though the

DNA evidence clearly satisfied the “any tendency”

standard of relevancy, the Court held that without the

interpretive evidence, the DNA evidence “was insuffi-

cient to assist the jury in determining whether defen-

dant contributed DNA to the mixed sample.” Coy, 243

Mich App at 301. As an alternative, the Court also

concluded that the DNA should have been excluded

under MRE 403 because “ ‘its probative value is sub-

stantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.’ ” Coy,

243 Mich App at 302.

In the present case, evidence of agency rates is only

relevant to determine a reasonable rate to compensate

family members providing attendant care if there is also

evidence separating the component of an agency’s

hourly fee that represents that which is necessary to

compensate an individual caregiver providing similar

services. Bonkowski, 281 Mich App at 164-165. Assum-

ing such evidence is available, the only purpose for

admitting evidence of the agency rate would be to

confuse or mislead the jury into believing it reasonable

to compensate family members for care provided by

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them as if they were for-profit health-care providers

having satisfied all the requisites to be engaged in such

a business. In light of the purposes of the no-fault act, I

would hold such a level of compensation for family-

provided care would not be a “reasonable charge”

within the meaning of MCL 500.3107(1)(a).

I conclude

that agency rates are not relevant to prove a “reason-

able charge” for family-provided attendant care, but to

the extent the evidence satisfies the “any tendency”

standard of MRE 401, it should be excluded because the

evidence’s “probative value is substantially outweighed

by the danger of...confusion of the issues, or mislead-

ingthejury....”MRE403.

II. MOTIONS FOR A DIRECTED VERDICT

Defendant argues that because plaintiff’s parents did

not testify at trial, there was no evidence that they

actually provided the high level of care that plaintiff

sought as an allowable expense. As a result, defendant

argues, plaintiff failed to prove the care his parents

provided was entitled to compensation at a rate higher

than that of a health aide, which defendant had already

paid. Consequently, defendant argues, the trial court

erred by not granting it a directed verdict. Alternatively,

defendant argues that the trial court erred by granting

plaintiff a directed verdict on the issue that the higher

level of attendant care had been “incurred.” Defendant

notes that while some level of care was incurred, the

lack of evidence plaintiff presented entitled defendant,

on plaintiff’s motion for a directed verdict, to the

reasonable inference that the care provided was at the

All activities in life have “opportunity costs” and I read nothing in the

no-fault act or MCL 500.3107(1)(a) in particular that permits anyone—

whether or not a family member—to recover as part of a “reasonable

charge” for an “allowable expense” the cost of opportunities foregone.

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lower level of a basic health aide. I conclude that the

trial did not err by denying defendant’s motion but did

err by granting plaintiff’s motion. The determination of

a reasonable charge for the attendant care at issue

should have been left for a properly instructed jury to

decide.

A. PRESERVATION

Defendant opposed granting plaintiff’s motions for a

directed verdict that attendant care had been “in-

curred” and limiting the jury’s consideration of a “rea-

sonable” rate to charge for the care to between $25 and

$45 an hour. Defendant also moved for a directed

verdict on the issue that plaintiff had not presented

proof that plaintiff’s parents actually proved a higher

level of care than that for which defendant had already

paid. Thus, these issues are properly preserved because

they were raised, addressed, and decided by the trial

court.

B. STANDARD OF REVIEW

A trial court’s decision on a motion for a directed

verdict is reviewed de novo. Sniecinski v Blue Cross &

Blue Shield of Mich, 469 Mich 124, 131; 666 NW2d 186

(2003). The evidence presented up to the point of the

motion and all legitimate inferences from the evidence

must be viewed in the light most favorable to the

nonmoving party to determine whether a fact question

existed. Heaton, 286 Mich App at 532. It is for the jury

to weigh the evidence and decide the credibility of the

witnesses. King v Reed, 278 Mich App 504, 523 n 5; 751

NW2d 525 (2008). A trial court properly grants a

directed verdict only when no factual question exists

upon which reasonable minds could differ. Heaton, 286

Mich App at 532.

2011] H

ARDRICK V

UTO

LUB

’

697

PINION BY

ARKEY

,J.

C. ANALYSIS

On review of the record, I conclude that the trial

court properly denied defendant’s motion for a directed

verdict on the basis of the lack of proof that the claimed

attendant-care hours had been “incurred.” The jury

could reasonably infer the attendant-care hours were

incurred from calendar time records submitted to de-

fendant, the medical prescriptions for attendant care,

Dr. Gerald Shiener’s testimony that plaintiff’s parents

provided the prescribed attendant care, and defendant’s

payment of the attendant-care hours claimed. Indeed,

there was no evidence from which the jury could con-

clude that the claimed attendant-care hours were not

“incurred.” Therefore, the trial court properly granted

plaintiff’s motion for a directed verdict on this issue.

On the other hand, under the no-fault act, “allowable

expenses” must be “reasonable charges,” MCL

500.3107(1)(a), and a person providing an injured per-

son services “may charge a reasonable amount

for...services,” MCL 500.3157. “When read in har-

mony, §§ 3107 and 3157 clearly indicate that an insur-

ance carrier need pay no more than a reasonable charge

and that a health care provider can charge no more

than that.” McGill, 207 Mich App at 406. Further,

although the trial court properly directed a verdict in

plaintiff’s favor by finding that the attendant care was

“incurred,” it did not decide the distinct question of

what a reasonable charge for those services should be.

Bonkowski, 281 Mich App at 165. The determination of

a reasonable charge for an allowable product, service, or

accommodation is generally for the jury to determine as

a question of fact. Id. at 169, citing Advocacy Org, 257

Mich App at 379, and Nasser v Auto Club Ins Ass’n, 435

Mich 33, 55; 457 NW2d 637 (1990).

698 294 M

ICH

651 [Dec

PINION BY

ARKEY

,J.

Here, evidence presented to the jury would permit it

to infer that a reasonable charge for the services plain-

tiff’s parents provided was less than the limited range

the trial court’s instructions permitted. Specifically, the

jury could reasonably infer from the testimony of Dr.

Robert Ancell that live-in health-care workers and

independent contractors might receive compensation at

a lesser hourly rate. Further, Dr. Ancell described

attendant care for “safety purposes” as follows: “[A]t

the lowest level of responsibility is somebody who’s a

companion, like a baby sitter. Okay. Somebody who is

just there, may get something for somebody, basically

for safety purposes. No medical training, basically a

companion. They typically make $10 an hour.” The jury

also heard Dr. Shiener describe plaintiff as like an 11

year old in an adult body. Dr. Shiener also testified that

plaintiff needed supervision for his own safety from

“someone who knows how to manage behavior and

knows how to interact with him in a skillful way, can be

there to make sure that he’s safe, that he doesn’t do

anything dangerous.... To discourage him from doing

something that he’s made his mind up to do when it’s a

bad idea.” Although Dr. Shiener testified that he described

a “behavioral technician or a life skills trainer...more

than just a babysitter or a home health aide,” the jury

might have inferred that the skill level he described was

what most parents or guardians do naturally. Finally,

from evidence that defendant paid the claimed

attendant-care hours at the rate of $10.25 or $10.50 an

hour, the jury could have reasonably inferred that this

rate represented a reasonable rate of compensation for

the services rendered. “Once plaintiffs charge the in-

sured, the insurer then makes its own determination

regarding what is reasonable and pays that amount to

plaintiffs.” Advocacy Org, 257 Mich App at 379 n 4. So,

evidence existed, viewed in the light most favorable to

2011] H

ARDRICK V

UTO

LUB

’

699

PINION BY

ARKEY

,J.

defendant, that would permit the jury to infer that a

reasonable charge for attendant-care services in this

case was less than the range to which the trial court

restricted the jury’s determination.

Additionally, the trial court erred by limiting the

jury’s determination of a reasonable rate of compensa-

tion because it is the jury’s responsibility to weigh the

evidence and judge the credibility of witnesses. King,

278 Mich App at 522. The jury could have chosen to

reject the evidence that supported plaintiff’s theory of

compensation. Id. at 523. “ ‘[T]he jury is free to credit

or discredit any testimony.’ ” Id. at 523 n 5, quoting

Kelly v Builders Square, Inc, 465 Mich 29, 39; 632

NW2d 912 (2001). For example, in Manley, in determin-

ing a reasonable room and board charge, the “plaintiffs

relied upon evidence that the Oakland County Medical

Care Facility charged $78 per day” and the defendant

relied upon evidence that the plaintiff “could be accom-

modated in a nursing home at $48 per day.” Manley, 127

Mich App at 454. The jury rejected this evidence when

it determined that $30 a day was a reasonable charge

for providing room and board. Manley, 425 Mich at 154

n 13.

For these reasons, I conclude that the trial court

erred by limiting the jury’s determination regarding a

reasonable charge for the attendant-care services that

plaintiff’s parents provided and that this error also

warrants reversal and remand for a new trial.

III. CONCLUSION

I agree with the majority that the trial court abused

its discretion by imposing a sanction for a discovery

violation that was not just or proportionate to the

violation. The disproportionate discovery sanction that

precluded defendant from presenting any witnesses or

700 294 M

ICH

651 [Dec

PINION BY

ARKEY

,J.

evidence at trial and the inability of defendant to

confront plaintiff’s parents regarding the attendant

care they provided combined to deny defendant a fun-

damentally fair trial. Consequently, I agree that the

judgment entered in this matter must be vacated and

the order for sanctions must be set aside.

I also conclude that the trial court erred by not

granting defendant’s motion in limine regarding evi-

dence of agency rates, by refusing to give supplemental

jury instructions as requested, and by limiting the

jury’s fact-finding ability when determining a reason-

able charge for the attendant care at issue. These errors

also warrant reversal and remand for a new trial.

Because of the resolution of the issues raised in

Docket No. 294875, the issues in Docket Nos. 298661

and 299070 are moot.

2011] H

ARDRICK V

UTO

LUB

’

701

PINION BY

ARKEY

,J.

PECIAL

RDERS

SPECIAL ORDERS

In this section are orders of the Court of general

interest to the bench and bar of the state.

Order Entered August 25, 2011:

In re E

LLIS

, Docket Nos. 301884 and 301887. On the Court’s own

motion, it is ordered that the June 14, 2011, per curiam opinion and the

August 9, 2011, order* amending that per curiam opinion are hereby

vacated.

The Court orders that a published opinion per curiam in the above

referenced cases is hereby issued as of today’s date and is attached.

Reported at 294 Mich App 30.

Order Entered January 10, 2012:

LFIERI

ERTORELLI,

Docket No. 297733. The Court orders that the

motion for reconsideration is granted, and this Court’s opinion issued

October 18, 2011, is hereby vacated. A new opinion is attached to this

order.**

Order Entered January 17, 2012:

OOST V

ASPARI

, Docket No. 294299. The Court orders that the

motion for reconsideration is granted, and this Court’s opinion issued

September 15, 2011, is hereby vacated. A new opinion is attached to this

order.***

* Order published at 293 Mich App 801—R

EPORTER

** New opinion reported at 295 Mich App 189—R

EPORTER

*** New opinion reported at 295 Mich App 209—R

EPORTER

PECIAL

RDERS

801

INDEX-DIGEST

INDEX–DIGEST

ABANDONMENT OF ASSETS BY BANKRUPTCY

TRUSTEE—See

ANKRUPTCY

ABSENT WITNESSES—See

ONSTITUTIONAL

ABUSE OF SIBLINGS AS GROUNDS FOR

TERMINATING PARENTAL RIGHTS—See

ARENT AND

HILD

ADMISSIONS BY DEFENDANTS—See

VIDENCE

ADOPTED CHILDREN—See

ARENT AND

HILD

AFFIRMATIVE DEFENSES—See

ONTROLLED

UBSTANCES

1, 2, 5, 6

ALLOWABLE EXPENSES FOR INJURED

PERSONS—See

NSURANCE

ALTERNATE JURORS—See

RIMINAL

AMENDMENTS OF CONTRACTS—See

ABOR

ELATIONS

APPEAL OF PAROLE DECISIONS—See

AROLE

851

APPOINTIVE OFFICIALS—See

OVERNMENTAL

MMUNITY

ARBITRATION

RESUMPTION OF

RBITRABILITY

1. An issue is arbitrable when (1) there is an arbitration

agreement in a contract between the parties, (2) the

disputed issue is on its face or arguably within the

contract’s arbitration clause, and (3) the dispute is not

expressly exempted from arbitration by the terms of the

contract; any doubts concerning the scope of arbitrable

issues should be resolved in favor of arbitration, but the

presumption of arbitrability cannot compel the arbitra-

tion of issues beyond those identified in the parties’

contract. Hall v Stark Reagan, PC, 294 Mich App 88.

ARRESTS—See

RIMINAL

ARRESTS BY CHIEF OF POLICE—See

OVERNMENTAL

MMUNITY

ASSETS OF PRISONERS—See

RISONS AND

RISONERS

ASSETS SCHEDULE—See

ANKRUPTCY

1, 2

ATTENDANT-CARE SERVICES—See

NSURANCE

BANKRUPTCY

CHEDULE OF

SSETS

1. A party filing for bankruptcy must list all his or her

assets on the bankruptcy schedule, including all legal

and equitable interests of the debtor in property as of

the commencement of the proceedings; the interests of

the debtor in property include causes of action; a debtor

loses all rights to his or her property when the debtor

files for bankruptcy and a right to pursue a cause of

action formerly belonging to the debtor then vests in the

trustee for the benefit of the bankruptcy estate; the

debtor has no standing to pursue such a cause of action

852 294 M

ICH

unless the trustee abandons it or the court gives per-

mission (11 USC 521 [a][1], 11 USC 541 [a][1]). Young v

Independent Bank, 294 Mich App 141.

2. An unscheduled asset cannot be abandoned by a bank-

ruptcy trustee even if the trustee knows of the existence

of the unscheduled asset. Young v Independent Bank,

294 Mich App 141.

BINDOVERS—See

RIMINAL

BOARD OF DETERMINATION HEARINGS—See

RAINS

BURDEN OF PROOF TO ESTABLISH DEFENSE—See

ONTROLLED

UBSTANCES

CARPOOLS—See

NSURANCE

CAUSES OF ACTION BY DEBTORS—See

ANKRUPTCY

CERTIFICATES OF MAILING—See

ONSTITUTIONAL

CHIEFS OF POLICE—See

OVERNMENTAL

MMUNITY

CHILD ABUSE—See

ARENT AND

HILD

CIRCUIT COURT REVIEW OF PAROLE—See

AROLE

1, 5

CIVIL RIGHTS

ISCRIMINATION

GAINST

ONEMPLOYEES

1. Under the Civil Rights Act (CRA), an employer shall not

discriminate against an individual with respect to em-

ployment because of age or other protected status; an

employer can be held liable under the CRA for discrimi-

natory acts against a nonemployee if it can be demon-

strated that the employer affected or controlled a term,

condition, or privilege of employment (MCL

NDEX

-D

IGEST

853

37.2202[1][a]). Hall v Stark Reagan, PC, 294 Mich App

88.

ISCRIMINATION

ASED ON

ROTECTED

HARACTERISTICS

2. To state a claim for violation of Michigan’s Civil Rights

Act (CRA), a plaintiff must establish (1) discrimination

based on a protected characteristic (2) by a person (3)

resulting in the denial of the full and equal enjoyment of

the goods, services, facilities, privileges, advantages, or

accommodations (4) of a place of public accommodation;

in a discrimination action based on disparate treatment,

the plaintiff has the initial burden to establish the

existence of illegal discrimination, either through direct

or indirect evidence; direct evidence is evidence which, if

believed, requires the conclusion that unlawful discrimi-

nation was at least a motivating factor in the decision-

maker’s actions; the presentation of direct evidence of

discrimination requires that the case proceed as an

ordinary civil matter; the provision of rebuttal evidence

by the defendant is irrelevant at the summary disposi-

tion phase if the plaintiff has presented direct evidence

of discrimination (MCL 37.2302[a]). Moon v Michigan

Reproductive & IVF Center, PC, 294 Mich App 582.

ARITAL

TATUS

3. Under Michigan’s Civil Rights Act (CRA), “[e]xcept

where permitted by law,” a person may not deny an

individual the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or accommo-

dations of a place of public accommodation or public

service because of marital status; marital status refers

to whether an individual is married or not; the phrase

“except where permitted by law” encompasses statutory

law, common law, and constitutional law; however, the

contractual nature of the physician-patient relationship,

which under the common law permitted a physician to

decline to enter into the relationship for any reason,

does not allow a physician to decline to enter into the

relationship on the basis of the patient’s protected

status under the CRA; rather, a physician may only

refuse to enter into a physician-patient relationship

with a potential patient on the basis of legally permis-

sible, nondiscriminatory reasons (MCL 37.2302[a]).

Moon v Michigan Reproductive & IVF Center, PC, 294

Mich App 582.

854 294 M

ICH

CIVIL SERVICE COMMISSION—See

ONSTITUTIONAL

CLEAN, RENEWABLE, AND EFFICIENT ENERGY

ACT—See

UBLIC

TILITIES

1, 2

CLOSED HIGHWAYS—See

OVERNMENTAL

MMUNITY

COLLECTIVE BARGAINING—See

ABOR

ELATIONS

1, 2, 3

COMPENSATION OF PUBLIC EMPLOYEES—See

ONSTITUTIONAL

CONFRONTATION OF WITNESSES—See

ONSTITUTIONAL

4, 5

APE

CONSECUTIVE SENTENCES—See

ENTENCES

CONSOLIDATION OF DRAIN DISTRICTS—See

RAINS

1, 2

CONSTITUTIONAL LAW

See, also,

AROLE

IVIL

ERVICE

OMMISSION

1. The statute enacted by 2010 PA 185 to require a three

percent employee compensation contribution to finance

the Public Employee Retirement Health Care Funding

Act, MCL 38.2731 et seq., violates the grant of authority to

the Civil Service Commission to regulate the rates of

compensation of classified civil service employees in Const

1963, art 11, § 5 (MCL 38.35). AFSCME Council 25 v

State Employees’ Retirement System, 294 Mich App 1.

USTODIAL

NTERROGATION

2. People v Cortez, 294 Mich App 481.

OUBLE

EOPARDY

3. The Double Jeopardy Clause bars the imposition of

multiple punishments for the same offense unless mul-

NDEX

-D

IGEST

855

tiple punishments are specifically authorized by the

Legislature; absent clear legislative intent to impose

multiple punishments, a court must determine whether

the sentences were imposed for the same offense as

determined by the statutory elements of the offenses; if

each offense requires proof of a fact that the other does

not, they are separate offenses notwithstanding a sub-

stantial overlap in the proof offered to establish the

crimes; to prove a charge of prisoner in possession of a

controlled substance, a prosecutor must show that the

individual was a prisoner, but an individual need not be

a prisoner to be convicted of delivery of less than five

kilograms of marijuana, and a person need not deliver a

controlled substance to be a prisoner in possession;

thus, the offenses of prisoner in possession and delivery

of less than five kilograms of marijuana each require

proof of a fact that the other does not, and a person may

be convicted of both offenses based on the same trans-

action (US Const, Am V; Const 1963, art 1, § 15; MCL

333.7401[1], MCL 333.7401[2][d][iii], MCL 801.263[2]).

People v Williams, 294 Mich App 461.

VIDENCE

4. Testimonial statements of witnesses absent from trial

are admissible only when the original declarant is un-

available and the defendant has had a prior opportunity

to cross-examine that declarant; a statement is consid-

ered testimonial if its primary purpose is to establish or

prove past events potentially relevant to later criminal

prosecution; a statement satisfies this condition if it was

made under circumstances that would lead an objective

witness reasonably to believe that it would be available

for use at a later trial (US Const, Am VI; Const 1963,

art 1, § 20). People v Nunley, 294 Mich App 274.

5. The document certifying that the Secretary of State

mailed a person notice that his or her driver’s license

was suspended is testimonial in nature; it may only be

admitted to prove a charge of driving with a suspended

license without the testimony of its preparer if the

preparer is unavailable and the defendant had a prior

opportunity to cross-examine him or her (US Const, Am

VI; Const 1963, art 1, § 20; MCL 257.212; MCL

257.904[1]). People v Nunley, 294 Mich App 274.

ELF

-I

NCRIMINATION

6. The right against compelled self-incrimination is guar-

856 294 M

ICH

anteed by both the United States and Michigan Consti-

tutions; statements made during custodial interroga-

tions that the defendant did not volunteer are

admissible only if a suspect voluntarily, knowingly, and

intelligently waived his or her Fifth Amendment rights;

interrogation of a suspect in custody can be through

express questioning or its functional equivalent, which

is defined as any words or actions on the part of police

officers that they should have known were reasonably

likely to elicit an incriminating response from the sus-

pect; the focus should be on the suspect’s perception,

rather than the intent of the officers; there must be no

evidence suggesting that the police officers were aware

that the suspect was peculiarly susceptible to an appeal

to his or her conscience, or was unusually disoriented or

upset at the time, and the conversation must have been

short with no lengthy or passionate speech (US Const,

Am V; Const 1963, art 1, § 17). People v White, 294 Mich

App 622.

ENTENCES

7. In determining whether a penalty constitutes cruel or

unusual punishment, a court must consider (1) the

severity of the sentence imposed and the gravity of the

offense, (2) a comparison of the penalty to penalties for

other crimes under Michigan law, and (3) a comparison

between Michigan’s penalty and penalties imposed for

the same offense in other states; a conviction for first-

degree criminal sexual conduct is punishable by impris-

onment for life or any term of years, but not less than 25

years if the offense is committed by a person who is 17

years of age or older against an individual less than 13

years of age; a 25-year minimum sentence for first-

degree criminal sexual conduct committed by a person

who is 17 years of age or older against an individual less

than 13 years of age is not cruel or unusual in light of

the social consequences of sexual offenses against chil-

dren and given that the 25-year mandatory minimum

sentence is similar to the penalty imposed for the same

offense in several other states (US Const, Am VI; Const

1963, art 1, § 16; MCL 750.520b[2][b]). People v Benton,

294 Mich App 191.

8. In deciding if punishment is cruel or unusual, a court

considers the gravity of the offense and the harshness of

the penalty, comparing the punishment to the penalty

NDEX

-D

IGEST

857

imposed for other crimes in Michigan and the penalty

imposed for the same crime in other states; a defendant

over the age of 17 who commits first-degree criminal

sexual conduct (CSC-I) involving a victim less than 13

years of age when the defendant was previously con-

victed of a similar sex crime with a victim less than 13

years of age must be sentenced to life in prison without

the possibility of parole; the penalty of life in prison for

a repeat offender convicted of CSC-I involving a victim

under the age of 13 reflects the gravity of the offense

and is similar to the penalties imposed in other states;

the penalty is not unconstitutionally cruel or unusual

(US Const, Am VIII; Const 1963, art 1, § 16; MCL

750.520b[2][c]). People v Brown, 294 Mich App 377.

CONTRACTS—See

RBITRATION

CONTROLLED SUBSTANCES

See, also,

ONSTITUTIONAL

RIMINAL

ARIJUANA

1. A person facing prosecution for violating Michigan’s con-

trolled substances laws may assert an affirmative defense

under MCL 333.26428(a) of the Michigan Medical Mari-

huana Act if a physician has stated that, in the physician’s

professional opinion, the patient is likely to receive thera-

peutic or palliative benefit from the medical use of mari-

juana to treat or alleviate the patient’s serious or debili-

tating medical condition or symptoms of the patient’s

serious or debilitating medical condition; to successfully

assert this affirmative defense, the physician’s statement

must have been made before the person’s arrest and

before the illegal conduct. People v Reed, 294 Mich App 78.

2. A person facing prosecution for violating Michigan’s

controlled substances laws for using marijuana for

medical purposes may assert immunity from prosecu-

tion under MCL 333.26424 of the Michigan Medical

Marihuana Act, but the person must have been issued

and possess a registry identification card before the

illegal conduct is committed to be immune from arrest,

prosecution, or penalty. People v Reed, 294 Mich App 78.

3. There is presumption that a person who is either a

registered qualifying patient or a registered primary

858 294 M

ICH

caregiver under the Michigan Medical Marihuana Act is

engaged in the medical use of marijuana in accordance

with the provisions of the act if the person possesses a

registry identification card and an amount of marijuana

that does not exceed the amount allowed under the act

(MCL 333.26424[d]). People v Bylsma, 294 Mich App

219.

4. Only one person may possess 12 marijuana plants for

each specific registered qualifying patient’s medical use

of marijuana under the Michigan Medical Marihuana

Act; that person is either the patient, if the patient has

not specified that a registered primary caregiver be

allowed to cultivate his or her marijuana plants, or the

patient’s primary caregiver, if the patient has specified

that the caregiver be allowed to cultivate the patient’s

marijuana plants; either the registered qualifying pa-

tient or the qualifying patient’s registered primary

caregiver, but not both, may possess the plants for the

patient’s medical use of marijuana (MCL 333.26426).

People v Bylsma, 294 Mich App 219.

5. A registered primary caregiver under the Michigan

Medical Marihuana Act may not possess marijuana

plants that were not grown and cultivated for registered

qualifying patients to whom the caregiver is connected

to through the Michigan Department of Community

Health’s registration process; a primary caregiver who

violates this provision is not entitled to the presumption

in § 4(d) of the act that he or she was engaged in the

medical use of marijuana, the immunity provided by

§ 4(b) of the act, or the affirmative defense provided in

§ 8 of the act (MCL 333.26424[b] and [d]; MCL

333.26428). People v Bylsma, 294 Mich App 219.

6. The Michigan Medical Marihuana Act provides an affir-

mative defense to prosecution; the defendant has the

burden to establish a prima facie case for the affirmative

defense by presenting some evidence on all the elements

of the defense; if the defendant fails to establish an

element of the defense, the defense should not be

presented to the jury (MCL 333.26428). People v Danto,

294 Mich App 596.

CORROBORATION OF DECLARANTS’

STATEMENTS—See

VIDENCE

NDEX

-D

IGEST

859

COST RECOVERY—See

UBLIC

TILITIES

1, 2

CRIMINAL DEFENSES—See

ONTROLLED

UBSTANCES

1, 2, 5, 6

CRIMINAL LAW

See, also,

ONSTITUTIONAL

3, 7, 8

ONTROLLED

UBSTANCES

1,2, 3, 4, 5, 6

APE

ONTROLLED

UBSTANCES

1. To prove possession of ketamine, the prosecution was

required to establish (1) that the substance in question

was ketamine, (2) that defendant possessed some

amount of ketamine, (3) that defendant was not autho-

rized to possess ketamine, and (4) that defendant know-

ingly possessed the ketamine; the prosecution was not

required to establish that the ketamine was not ex-

cluded from the schedules of controlled substances by

MCL 333.7216(1)(h) for being in a proportion or concen-

tration that vitiated the potential for abuse (MCL

333.7401 et seq.). People v Hartuniewicz, 294 Mich App

237.

URY

RIALS

2. If an alternate juror replaces a juror after deliberations

begin, the court must instruct the jury to begin its

deliberations anew (MCR 6.411). People v Mahone, 294

Mich App 208.

ROBABLE

AUSE TO

RREST

3. The probable cause required to bind over a defendant at

a preliminary examination is different from the prob-

able cause required to arrest a defendant; the arrest

standard considers only the probability that the person

committed the crime as established at the time of the

arrest, while the preliminary hearing considers both

that probability at the time of the preliminary hearing

and the probability that the government will be able to

establish guilt at trial. People v Cohen, 294 Mich App 70.

CRIMINAL SEXUAL CONDUCT—See

ONSTITUTIONAL

7, 8

APE

860 294 M

ICH

CRUEL OR UNUSUAL PUNISHMENT—See

ONSTITUTIONAL

7, 8

CUSTODIAL INTERROGATION—See

ONSTITUTIONAL

2, 6

DAMAGES

ONECONOMIC

AMAGES

1. As a general rule, noneconomic damages are recoverable

in tort claims, and emotional damages include both

emotional distress and mental anguish; a tortfeasor is

liable for all injuries resulting directly from the wrong-

ful act, whether foreseeable or not, provided the dam-

ages are the legal and natural consequences of the

wrongful act; real property has a unique and peculiar

value, and mental anguish damages naturally flowing

from the damage to or destruction of real property may

be recovered in a negligence action; the plaintiff need

not suffer the emotional distress as a result of a fear of

physical impact; unlike a claim for emotional distress, a

party need not demonstrate a physically manifested

injury to recover for mental anguish; mental anguish

includes shame, mortification, mental pain and anxiety,

discomfiture, and humiliation. Price v High Pointe Oil,

Co, Inc, 294 Mich App 42.

DEBTORS—See

ANKRUPTCY

DEFENSES—See

ONTROLLED

UBSTANCES

1, 2, 5, 6

DEFINITION OF PRINCIPAL RESIDENCE—See

AXATION

DEFINITION OF SIBLING—See

ARENT AND

HILD

DELIVERY OF MARIJUANA—See

ONSTITUTIONAL

DEPARTMENT OF HUMAN SERVICES—See

ARENT AND

HILD

NDEX

-D

IGEST

861

DEPARTURES FROM PAROLE GUIDELINES—See

AROLE

DESIGN DEFECTS—See

OVERNMENTAL

MMUNITY

DIRECT EVIDENCE OF DISCRIMINATION—See

IVIL

IGHTS

DISCLAIMER OF PROPERTY INTERESTS LAW—See

RISONS AND

RISONERS

DISCLOSURE OF PUBLIC RECORDS—See

ECORDS

DISCOVERY—See

RETRIAL

ROCEDURE

DISCRETION OF PAROLE BOARD—See

AROLE

DISCRIMINATION AGAINST NONEMPLOYEES—See

IVIL

IGHTS

DISCRIMINATION BASED ON MARITAL STATUS—See

IVIL

IGHTS

DISCRIMINATION BASED ON PROTECTED

CHARACTERISTICS—See

IVIL

IGHTS

DISPARATE TREATMENT—See

IVIL

IGHTS

DOMESTIC VIOLENCE—See

VIDENCE

1, 4, 5

ARENT AND

HILD

DOMICILE OF OWNER—See

ARNISHMENT

DOUBLE JEOPARDY—See

ONSTITUTIONAL

862 294 M

ICH

DRAIN CODE—See

RAINS

DRAINS

ONSOLIDATION OF

RAIN

ISTRICTS

1. A petition seeking to consolidate two or more drainage

districts must be signed by at least 50 property owners

within the proposed consolidated drainage district un-

der MCL 280.441, but a petition to clean out, relocate,

widen, or straighten a drain need be signed only by 5

freeholders whose land would be subject to assessment

for the improvements under MCL 280.191; under MCL

280.194, property owners subject to a proposed assess-

ment need file only one petition for one proceeding

when maintenance, improvements, and consolidation of

drainage districts are being requested, but the signa-

tures of 50 property owners are required for combined

petitions that include a request for consolidation. Elba

Twp v Gratiot County Drain Comm’r, 294 Mich App 310.

2. The drain commissioner must give notice of the time, date,

and place of the meeting scheduled to determine whether

consolidation of two or more drainage districts would be

conducive to the public health, convenience, or welfare;

the notice must not be misleading or make any untrue

statement or fail to explain or omit any fact that would be

important to an affected person when making his or her

decision regarding the consolidation (MCL 280.441[2]).

Elba Twp v Gratiot County Drain Comm’r, 294 Mich App

310.

RAIN

ODE

3. An affected party must challenge minor errors and

irregularities under the Drain Code by filing for a writ of

certiorari in the circuit court within 10 days after the

final order of determination is issued; however, certio-

rari is not the exclusive remedy under the Drain Code;

equity will provide a remedy when the drain commis-

sioner acts without jurisdiction and there is no adequate

remedy at law (MCL 280.161). Elba Twp v Gratiot

County Drain Comm’r, 294 Mich App 310.

DUE PROCESS—See

AROLE

EIGHTH AMENDMENT—See

ONSTITUTIONAL

NDEX

-D

IGEST

863

ELECTRIC UTILITIES—See

UBLIC

TILITIES

ELEMENTS OF POSSESSION OF KETAMINE—See

RIMINAL

EMOTIONAL DAMAGES—See

AMAGES

EMPLOYMENT DISCRIMINATION—See

IVIL

IGHTS

EMPLOYMENT TERMS AND CONDITIONS—See

ABOR

ELATIONS

ENERGY-OPTIMIZATION PLANS—See

UBLIC

TILITIES

1, 2

EQUITABLE REMEDIES—See

RAINS

EVIDENCE

See, also,

ONSTITUTIONAL

4, 5

OMESTIC

IOLENCE

1. Evidence of a defendant’s commission of other acts of

domestic violence is admissible in a criminal domestic

violence action for any purpose for which it is relevant if it

is not otherwise excluded under MRE 403 because its

probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence; because

evidence offered against a criminal defendant is prejudicial

by its very nature, exclusion of the evidence is appropriate

only when there is a danger that the evidence will be given

undue or preemptive weight by the jury or if admitting it

would be inequitable; prior acts of domestic violence may

be admissible regardless of whether the acts were identical

to the charged offense (MCL 768.27b). People v Meissner,

294 Mich App 438.

EARSAY

2. A prior consistent statement is admissible if (1) the

declarant testifies at trial and is subject to cross-

864 294 M

ICH

examination, (2) there was an express or implied charge of

recent fabrication or improper influence or motive of the

declarant’s testimony, (3) the proponent offers a prior

statement that is consistent with the declarant’s chal-

lenged in-court testimony, and (4) the prior consistent

statement was made before the supposed motive to falsify

arose (MRE 801[d][1][B]). People v Mahone, 294 Mich App

208.

3. Statements made for the purpose of medical treatment

are admissible hearsay if they were reasonably neces-

sary for diagnosis and treatment and the declarant had

a self-interested motivation to be truthful in order to

receive proper medical care, irrespective of whether the

declarant sustained any immediately apparent physical

injury; in cases of sexual assault, the injuries might be

latent, such as contracting a sexually transmitted dis-

ease, or psychological in nature and thus not necessarily

physically manifested at all, and a sexual assault vic-

tim’s complete history and a recitation of the totality of

the circumstances of the assault are properly considered

to be statements made for medical treatment (MRE

803[4]). People v Mahone, 294 Mich App 208.

4. A hearsay statement is admissible if (1) the statement

purports to narrate, describe, or explain the infliction or

threat of physical injury on the declarant, (2) the action

in which the evidence is offered is an offense involving

domestic violence, (3) the statement was made at or

near the time of the infliction or threat of physical

injury and not more than five years before the current

action or proceeding was filed, (4) the statement was

made under circumstances that would indicate its trust-

worthiness, and (5) the statement was made to a law

enforcement officer; a court is not required to calculate

or consider the number of hours that elapsed between

the time of the charged offense and the time the

complainant gave the statements to the police (MCL

768.27c[1]). People v Meissner, 294 Mich App 438.

5. A hearsay statement in which a declarant describes to a

law enforcement officer a threat or incident of domestic

violence inflicted on him or her is admissible if it meets

certain temporal requirements and is trustworthy; cir-

cumstances relevant to determining trustworthiness in-

clude but are not limited to whether the statement was

made in contemplation of pending or anticipated litigation

NDEX

-D

IGEST

865

in which the declarant was interested, whether and to

what extent the declarant has a bias or motive for fabri-

cating the statement, and whether the statement is cor-

roborated by evidence other than statements that are

admissible only under MCL 768.27c; a court is not re-

quired to make factual findings regarding these circum-

stances or to exclude a statement because they have not

been established; the statutory reference to statements in

contemplation of litigation does not pertain to a domestic

violence victim’s report of the charged offense but rather

to litigation in which the declarant could gain a property,

financial, or similar advantage (MCL 768.27c[1], [2]).

People v Meissner, 294 Mich App 438.

ELEVANT

VIDENCE

6. People v Cortez, 294 Mich App 481.

7. All relevant evidence is prejudicial; only unfairly preju-

dicial evidence may be excluded; unfair prejudice exists

when there is a tendency that evidence with little

probative value will be given too much weight by the

jury; unfair prejudice may arise when considerations

extraneous to the merits of the case, such as jury bias,

sympathy, anger, or shock, are injected. People v Danto,

294 Mich App 596.

EVIDENCE OF DISCRIMINATION—See

IVIL

IGHTS

EVIDENCE OF PRIOR SEXUAL CONDUCT—See

APE

EXCESSIVE JUDGMENTS—See

UDGMENTS

EXCLUSIONS FROM SCHEDULES OF CONTROLLED

SUBSTANCES—See

RIMINAL

EXCLUSIONS FROM UNDERINSURANCE

BENEFITS—See

NSURANCE

EXECUTIVE AUTHORITY—See

OVERNMENTAL

MMUNITY

866 294 M

ICH

EXECUTIVE OFFICIALS—See

OVERNMENTAL

MMUNITY

1, 2

EXEMPTION FROM COST RECOVERY FOR ELIGIBLE

ELECTRIC CUSTOMERS—See

UBLIC

TILITIES

EXEMPTIONS FROM PROPERTY TAX—See

AXATION

EXPRESS QUESTIONING OR ITS FUNCTIONAL

EQUIVALENT—See

ONSTITUTIONAL

FAMILY-PROVIDED CARE—See

NSURANCE

FIFTH AMENDMENT—See

ONSTITUTIONAL

2, 3, 6

FIRST-DEGREE CRIMINAL SEXUAL CONDUCT—See

ONSTITUTIONAL

7, 8

FORECLOSURE BY ADVERTISEMENT—See

ORTGAGES

FREEDOM OF INFORMATION ACT—See

ECORDS

GARNISHMENT

RITS

ARNISHMENT

1. Michigan courts may garnish personal property belong-

ing to the person against whom the claim is asserted

that is in the possession or control of a third person if

the third person is subject to the judicial jurisdiction of

the state and the personal property to be applied is

within the boundaries of this state; generally, the situs

of intangible assets is the domicile of the owner unless it

is fixed by some positive law (MCL 600.4011[1][a]).

Macatawa Bank v Wipperfurth, 294 Mich App 617.

GAS UTILITIES—See

UBLIC

TILITIES

NDEX

-D

IGEST

867

GENERAL PROPERTY TAX ACT—See

AXATION

GOVERNMENTAL IMMUNITY

XECUTIVE

FFICIALS

1. Judges, legislators, and the elective or highest appoint-

ive executive officials of all levels of government are

immune from tort liability for injuries to persons or

damage to property if they are acting within the scope of

their judicial, legislative, or executive authority; a chief

of police is generally recognized as the highest appoint-

ive official in a police department; if the duties of an

ordinary police officer—such as effecting arrests—are

outside the scope of the police chief’s executive author-

ity, a police chief acting as an ordinary police officer is

not entitled to absolute immunity simply because he or

she is also the police chief, even if he or she occasionally

performs those ordinary duties, but would be entitled to

the immunity provided to governmental employees if all

the statutory requirements for that immunity are sat-

isfied (MCL 691.1407[2], [5].) Petipren v Jaskowski, 294

Mich App 419.

2. Whether an elective or highest executive official of a level

of local government was acting within his or her authority

and therefore immune from tort liability depends on (1)

the nature of the acts, (2) the position held by the official,

(3) the local law defining his or her authority, and (4) the

structure and allocation of powers at that particular level

of government; the official’s motive is irrelevant. Petipren

v Jaskowski, 294 Mich App 419.

IGHWAY

XCEPTION

3. Allegations concerning a lack of warning and traffic-

control devices or allegations of design defects do not by

themselves implicate the highway exception to govern-

mental immunity and the government’s duty to repair and

maintain a highway within its jurisdiction (MCL

691.1402[1]). Snead v John Carlo, Inc, 294 Mich App 343.

4. The appropriate test for determining whether a highway is

open for public travel for purposes of the highway excep-

tion to governmental immunity is whether under all the

circumstances a reasonable motorist traveling along the

pertinent section of highway would believe that the high-

868 294 M

ICH

way was open for travel (MCL 691.1402[1]). Snead v John

Carlo, Inc, 294 Mich App 343.

5. A governmental agency’s duty to keep a highway under

its jurisdiction in reasonable repair is suspended when

the highway is effectively closed by authorities; the duty

is still owed if the highway, despite undergoing construc-

tion, is not properly closed to the public (MCL

691.1402[1]). Snead v John Carlo, Inc, 294 Mich App

343.

GRANTS OR DENIALS OF PAROLE—See

AROLE

GROUNDS FOR TERMINATION OF PARENTAL

RIGHTS—See

ARENT AND

HILD

1, 2, 3

GUIDELINES FOR PAROLE—See

AROLE

HEALTH-CARE FUNDING—See

ONSTITUTIONAL

HEARSAY—See

ONSTITUTIONAL

4, 5

VIDENCE

2, 3, 4, 5

HIGHEST APPOINTIVE OFFICIALS—See

OVERNMENTAL

MMUNITY

HIGHWAY EXCEPTION—See

OVERNMENTAL

MMUNITY

3, 4, 5

HUMAN SERVICES DEPARTMENT—See

ARENT AND

HILD

IDENTITY OF PERPETRATOR OF CHILD ABUSE

UNKNOWN—See

ARENT AND

HILD

IMMUNITY FROM PROSECUTION—See

ONTROLLED

UBSTANCES

2, 5

NDEX

-D

IGEST

869

IMPROVEMENT AND REPAIR OF HIGHWAYS—See

OVERNMENTAL

MMUNITY

INDEBTEDNESS—See

ORTGAGES

INSTRUCTIONS TO JURY—See

RIMINAL

INSURANCE

-F

AULT

1. The market rate for agency-provided attendant-care ser-

vices bears relevance to establishing a rate for family-

provided attendant-care services under the no-fault insur-

ance act; although rates charged by an agency to provide

attendant-care services are not dispositive of the reason-

able rate chargeable by a relative caregiver, they supply

one measure of the value of attendant care and are

relevant to the determination of a reasonable charge for

family-provided attendant-care services (MCL

500.3107[1][a]). Hardrick v Auto Club Ins Ass’n, 294 Mich

App 651.

2. The Legislature selected reasonableness as the operative

criterion for determining the allowable expenses incurred

for reasonably necessary products, services, and accommo-

dations for the care, recovery, or rehabilitation of a person

injured in a motor vehicle accident; to the extent that the

market for a particular service bears on its reasonableness,

the parameters of the relevant market present jury ques-

tions; the relevant market for attendant-care services

includes agency-provided services, family-provided ser-

vices, and independently contracted care; the no-fault act

does not confine a provider’s reasonable charge to the

amount the provider customarily receives from third-party

payors; an objective standard guides an assessment of the

term “reasonably necessary”; the question whether ex-

penses are reasonable and reasonably necessary is gener-

ally one of fact for the jury and, in making this determi-

nation, the jury is entitled to consider evidence relevant to

the reasonableness of the charge (MCL 500.3107[1][a]).

Hardrick v Auto Club Ins Ass’n, 294 Mich App 651.

NDERINSURED

AND

NINSURED-

OTORIST

ENEFITS

3. For purposes of interpreting the term when not defined

870 294 M

ICH

by the automobile insurance policy, the phrases “car-

pool” or “shared-expense carpool” describe an arrange-

ment wherein the associated driving costs are shared,

but not necessarily the cars; there is no need for

members of the carpool to know each other socially and

no requirement that the members of the carpool work at

the same exact location. Pugh v Zefi, 294 Mich App 393.

INTANGIBLE ASSETS—See

ARNISHMENT

INTERESTS IN INDEBTEDNESS—See

ORTGAGES

INTERESTS OF DEBTORS—See

ANKRUPTCY

INTERROGATIONS OF PRISONERS—See

ONSTITUTIONAL

INTERROGATIONS OF SUSPECTS—See

ONSTITUTIONAL

JUDGMENTS

XCESSIVE

UDGMENTS

1. If the only error in the trial was the inadequacy or

excessiveness of the verdict, the trial court may deny a

motion for new trial on the condition that the nonmov-

ing party consent to the entry of a judgment in the

amount that the court finds to be the lowest (if the

verdict was inadequate) or the highest (if the verdict

was excessive) amount the evidence will support; a trial

court must view the evidence in the light most favorable

to the nonmoving party when deciding whether the jury

award is supported by the evidence; the court must

consider objective criteria relating to the actual conduct

of the trial or the evidence presented, including (1)

whether the verdict was the result of improper methods,

prejudice, passion, partiality, sympathy, corruption, or

mistake of law or fact, (2) whether it was within the

limits of what reasonable minds would deem to be just

compensation for the injury inflicted, and (3) whether

the amount actually awarded is comparable to other

awards in similar cases; the court’s decision is given

NDEX

-D

IGEST

871

deference because the court is in the best position to

evaluate the credibility of the witnesses and is in the

best position to make an informed decision on the issue

of remittitur (MCR 2.611[E][1]). Price v High Pointe

Oil, Co, Inc, 294 Mich App 42.

JURY INSTRUCTIONS—See

RIMINAL

JURY TRIALS—See

RIMINAL

KETAMINE—See

RIMINAL

LABOR RELATIONS

OLLECTIVE

ARGAINING

1. Retirement or pension benefits and the methods of

calculating them are mandatory subjects of collective

bargaining. Macomb County v AFSCME Council 25

Locals 411 & 893, 294 Mich App 149.

2. When a term in a collective-bargaining agreement is

unambiguous, a past practice may constitute a term or

condition of employment only if it is so widely acknowl-

edged and mutually accepted that it amends the con-

tract, that is, that the parties had a meeting of the minds

with respect to the new term or condition so that there

was an agreement to modify the contract; if the term is

unambiguous, a tacit agreement that a past practice will

continue renders that practice a term or condition of

employment that cannot be unilaterally altered. Ma-

comb County v AFSCME Council 25 Locals 411 & 893,

294 Mich App 149.

UBLIC

MPLOYEES

3. A public employer has a duty under the public employ-

ment relations act (PERA) to bargain in good faith over

the wages, hours, and other terms and conditions of

employment; a public employer commits an unfair labor

practice when it refuses to bargain in good faith regard-

ing a mandatory subject of collective bargaining, takes

unilateral action on the subject absent an impasse in

negotiations, or before bargaining unilaterally alters or

modifies a term or condition of employment unless the

employer has fulfilled its statutory obligation or been

872 294 M

ICH

freed from it; an employer may not remove a subject of

mandatory bargaining from the requirements of PERA

by assigning its management to a body not controlled by

PERA (MCL 423.10[1][e], 423.215[1]). Macomb County

v AFSCME Council 25 Locals 411 & 893, 294 Mich App

149.

LIABILITY FOR DISCRIMINATION AGAINST

NONEMPLOYEES—See

IVIL

IGHTS

LIFE IMPRISONMENT—See

ONSTITUTIONAL

LIFE INSURANCE PROCEEDS—See

RISONS AND

RISONERS

LIMITATION OF THE PRESUMPTION OF

ARBITRABILITY—See

RBITRATION

LOCATION OF INTANGIBLE ASSETS—See

ARNISHMENT

MANDATORY SUBJECTS OF BARGAINING—See

ABOR

ELATIONS

1, 3

MARIJUANA—See

ONTROLLED

UBSTANCES

1, 2, 3, 4, 5, 6

ONSTITUTIONAL

MARITAL STATUS—See

IVIL

IGHTS

MEDICAL MARIJUANA—See

ONTROLLED

UBSTANCES

1, 2, 3, 4, 5, 6

MENTAL ANGUISH—See

AMAGES

MICHIGAN MEDICAL MARIHUANA ACT—See

ONTROLLED

UBSTANCES

1, 2, 3, 4, 5, 6

NDEX

-D

IGEST

873

MICHIGAN RULES OF EVIDENCE—See

VIDENCE

2, 3

MIRANDA WARNINGS—See

ONSTITUTIONAL

2, 6

MORTGAGES

ORECLOSURE BY

DVERTISEMENT

1. Richard v Schneiderman & Sherman, PC, 294 Mich App

37.

MOTIVE OF GOVERNMENTAL OFFICIALS—See

OVERNMENTAL

MMUNITY

MULTIPLE PUNISHMENTS—See

ONSTITUTIONAL

NARRATIVE STATEMENTS RELATED TO

INJURIES—See

VIDENCE

NATURAL GAS CUSTOMERS—See

UBLIC

TILITIES

NEGLIGENCE—See

AMAGES

NO-FAULT—See

NSURANCE

1, 2

NONECONOMIC DAMAGES—See

AMAGES

NOTICE OF SUSPENSION OF DRIVER’S

LICENSES—See

ONSTITUTIONAL

NOTICE REQUIREMENT FOR CONSOLIDATION

HEARINGS—See

RAINS

OBJECTIVE CRITERIA FOR REMITTITUR—See

UDGMENTS

874 294 M

ICH

OPEN FOR PUBLIC TRAVEL—See

OVERNMENTAL

MMUNITY

OPINIONS BY APPELLATE COURTS—See

ORTGAGES

PARENT AND CHILD

ERMINATION OF

ARENTAL

IGHTS

1. Termination of parental rights under MCL

712A.19b(3)(b)(i), (b)(ii), (j), and (k)(iii) is permissible

in the absence of definitive evidence regarding the

identity of the perpetrator of child abuse when the

evidence demonstrates that the respondent parent or

parents must have either caused or failed to prevent the

child’s injuries. In re Ellis, 294 Mich App 30.

2. A petitioner must establish at least one statutory

ground for termination of parental rights by clear and

convincing evidence; a biological child who is put up for

adoption by a parent is a sibling of that parent’s other

biological children when determining whether statutory

grounds for termination of parental rights have been

established under MCL 712A.19b(3)(b)(i) and (k)(ii);

there is no distinction between a legal sibling and a

biological sibling under those subsections. In re Hudson,

294 Mich App 261.

3. In re Plump, 294 Mich App 270.

PAROLE

IRCUIT

OURT

EVIEW OF

AROLE

1. In re Parole of Elias, 294 Mich App 507.

ONSTITUTIONAL

2. A prisoner enjoys no constitutional or inherent right to

be conditionally released from a validly imposed sen-

tence; although a parolee has a right to notice and the

opportunity to be heard before parole is revoked, a

potential parolee who remains in prison has no liberty

for the Due Process Clause to protect. In re Parole of

Haeger, 294 Mich App 549.

AROLE

OARD

3. The decision to grant or deny parole is discretionary, the

Parole Board’s discretion is not absolute; the board may

not release a prisoner who has been incarcerated for two

or more years unless he or she has earned a GED and

NDEX

-D

IGEST

875

may not grant parole unless there is satisfactory evi-

dence that arrangements have been made for employ-

ment, education, or for the prisoner’s care if he or she is

physically ill or incapacitated and the board has reason-

able assurance after considering all of the facts and

circumstances that the prisoner will not become a

menace to society or to the public safety (MCL

791.233[1][a], [e], [f]). In re Parole of Elias, 294 Mich

App 507.

4. The parole guidelines quantify the applicable factors

that the Parole Board should consider in a parole

decision and are intended to inject more objectivity and

uniformity into the process in order to minimize recidi-

vism and to prevent improper factors from being con-

sidered, such as race; the parole guidelines do not

require the board to be absolutely objective; rather, the

board must consider all the facts and circumstances,

including a prisoner’s mental and social attitude, which

requires the evaluation of subjective factors; under MCL

791.233e(6), the board may depart from the parole

guidelines, but to allow meaningful appellate review

there must be substantial and compelling reasons stated

in writing for the departure; the reasons justifying

departure from the guidelines must be reasons that

keenly or irresistibly grab the board’s attention and are

of considerable worth in deciding whether it should

nonetheless deny or grant parole. In re Parole of Elias,

294 Mich App 507.

5. In re Parole of Haeger, 294 Mich App 549.

PAROLE BOARD—See

AROLE

3, 4, 5

PAROLE GUIDELINES—See

AROLE

PAST PRACTICES—See

ABOR

ELATIONS

PERSONAL NOTES—See

ECORDS

PERSONAL PROPERTY—See

ARNISHMENT

876 294 M

ICH

PERSONAL PROTECTION INSURANCE

BENEFITS—See

NSURANCE

1, 2

PETITIONS TO CONSOLIDATE—See

RAINS

PHYSICIAN-PATIENT RELATIONSHIPS—See

IVIL

IGHTS

PHYSICIAN’S STATEMENTS—See

ONTROLLED

UBSTANCES

POLICE CHIEFS—See

OVERNMENTAL

MMUNITY

POSSESSION OF MARIJUANA FOR MEDICAL USE—See

ONTROLLED

UBSTANCES

4, 5

PREJUDICE FROM OTHER-ACTS EVIDENCE—See

VIDENCE

PREJUDICIAL EVIDENCE—See

VIDENCE

6, 7

PRELIMINARY EXAMINATIONS—See

RIMINAL

PRESUMPTION OF ARBITRABILITY—See

RBITRATION

PRESUMPTIONS UNDER MICHIGAN MEDICAL

MARIHUANA ACT—See

ONTROLLED

UBSTANCES

3, 5

PRETRIAL PROCEDURE

ISCOVERY

1. A sanction imposed by a trial court for a discovery

violation must be proportionate and just; a trial court’s

imposition of discovery sanctions is reviewed by the

Court of Appeals for an abuse of discretion; an abuse of

discretion occurs when the decision results in an out-

NDEX

-D

IGEST

877

come falling outside the range of principled outcomes.

Hardrick v Auto Club Ins Ass’n, 294 Mich App 651.

PRIMARY CAREGIVERS—See

ONTROLLED

UBSTANCES

3, 4, 5

PRINCIPAL RESIDENCE EXEMPTION—See

AXATION

PRIOR ACTS OF DOMESTIC VIOLENCE—See

VIDENCE

PRIOR CONSISTENT STATEMENTS—See

VIDENCE

PRISONER IN POSSESSION OF A CONTROLLED

SUBSTANCE—See

ONSTITUTIONAL

PRISONS AND PRISONERS

See, also,

ONSTITUTIONAL

2, 3

ENTENCES

EIMBURSEMENT OF

OSTS OF

NCARCERATION

1. The State Correctional Facility Reimbursement Act

(SCFRA) authorizes the filing of a complaint in the

circuit court to secure reimbursement from the assets of

a prisoner for the expenses incurred by the state for the

cost of care of the prisoner during the entire period of

his or her incarceration; under the SCFRA, “assets”

include property, tangible or intangible, real or personal,

belonging to or due a prisoner from any source whatso-

ever; proceeds a prisoner is due from a life insurance

policy are considered an asset for purposes of the

SCFRA; under the Disclaimer of Property Interests Law

(DPIL), a person may disclaim a disclaimable interest,

which the DPIL defines as including property and the

right to receive property; however, the right to disclaim

a property interest is not absolute; it is barred to the

extent provided by other applicable law; under the

SCFRA, the attorney general may use any remedy,

interim order, or enforcement procedure allowed by law

or court rule to prevent a prisoner from disposing of

assets, and the circuit court presiding over an SCFRA

878 294 M

ICH

action may appoint a receiver to protect and maintain

assets pending resolution of the action; the authority

conferred on the attorney general and the circuit court

suggests a legislative intent to bar a prisoner from

alienating his or her ownership interest in any assets

that may be subject to confiscation under the SCFRA;

thus, a prisoner may not avoid the confiscation of his or

her assets by disclaiming interest in the assets pursuant

to the DPIL; rather, assets are subject to the SCFRA if

they belong to, or are due to, the prisoner (MCL

700.2901 et seq., MCL 800.401 et seq.). State Treasurer v

Snyder, 294 Mich App 641.

PROBABLE CAUSE TO ARREST—See

RIMINAL

PROBABLE CAUSE TO BIND A DEFENDANT OVER

FOR TRIAL—See

RIMINAL

PROBATIVE VALUE—See

VIDENCE

6, 7

PROPERTY TAX—See

AXATION

PUBLIC ACCOMMODATIONS—See

IVIL

IGHTS

2, 3

PUBLIC EMPLOYEES—See

ONSTITUTIONAL

ABOR

ELATIONS

PUBLIC RECORDS—See

ECORDS

PUBLIC UTILITIES

NERGY

-O

PTIMIZATION

LANS

1. Under the Clean, Renewable, and Efficient Energy Act,

a provider whose rates are regulated is entitled to

recover the actual costs of implementing its approved

energy-optimization plan from all natural gas custom-

ers, including those customers who only purchase gas

NDEX

-D

IGEST

879

transportation services from the provider (MCL

460.1089). In re Michigan Consolidated Gas Co’s Com-

pliance With 2008 PA 286 & 295, 294 Mich App 119.

2. Eligible electric customers are exempt from charges that

the customer would otherwise incur under the cost-

recovery provisions of the Clean, Renewable, and Effi-

cient Energy Act if the customer files a self-directed

energy-optimization plan with its electric provider and

implements the plan; the charges the customer would

otherwise incur as part of the cost-recovery plan refers

to the customer’s electric-optimization plan costs

(Former MCL 460.1093[1], as added by 2008 PA 295). In

re Michigan Consolidated Gas Co’s Compliance With

2008 PA 286 & 295, 294 Mich App 119.

PUNISHMENT FOR CRIMES—See

ONSTITUTIONAL

QUALIFYING PATIENTS—See

ONTROLLED

UBSTANCES

3, 4

RAPE

See, also,

ONSTITUTIONAL

VIDENCE

RIMINAL

EXUAL

ONDUCT

1. Under Michigan’s rape-shield statute, evidence of spe-

cific instances of a victim’s sexual conduct, opinion

evidence of the victim’s sexual conduct, and reputation

evidence of the victim’s sexual conduct may not be

admitted unless and only to the extent that the judge

finds that the proposed evidence is material to a fact at

issue in the case and that its inflammatory or prejudicial

nature does not outweigh its probative value; the evi-

dence may only be of the victim’s past sexual conduct

with the actor or of specific instances of sexual activity

showing the source or origin of semen, pregnancy, or

disease; however, evidence that is not admissible under

one of the statutory exceptions to the rape-shield statute

may nevertheless be relevant and admissible to preserve

a defendant’s Sixth Amendment right of confrontation;

in determining whether to admit the evidence, a court

must consider the significant legislative purposes un-

derlying the rape-shield statute and should always favor

exclusion of evidence of a complainant’s sexual conduct

880 294 M

ICH

when its exclusion would not unconstitutionally abridge

the defendant’s right to confront the witnesses against

him or her (MCL 750.520j). People v Benton, 294 Mich

App 191.

RAPE-SHIELD STATUTE—See

APE

REAL PROPERTY—See

AMAGES

REASONABLE CHARGES FOR ATTENDANT-CARE

SERVICES—See

NSURANCE

REASONABLE CHARGES FOR CARE OF INJURED

PERSONS—See

NSURANCE

RECORDS

REEDOM OF

NFORMATION

1. Under the Freedom of Information Act, a public body must

disclose all public records which are not specifically ex-

empt under the act; a writing can become a public record

after its creation if used by a public body in the perfor-

mance of an official function, regardless of who prepared

it; handwritten notes taken by a member of a township

board of trustees for his or her personal use, not circulated

among other board members, not used in the creation of

the minutes of any meetings, and retained or destroyed at

the member’s sole discretion are not public records subject

to disclosure under the act (MCL 15.232[e]). Hopkins v

Duncan Twp, 294 Mich App 401.

REGISTRY IDENTIFICATION CARDS—See

ONTROLLED

UBSTANCES

2, 5

REIMBURSEMENT OF COSTS OF

INCARCERATION—See

RISONS AND

RISONERS

RELEVANT EVIDENCE—See

VIDENCE

6, 7

NDEX

-D

IGEST

881

REMANDS TO PAROLE BOARD—See

AROLE

REMITTITUR—See

UDGMENTS

REPEAT OFFENDERS—See

ONSTITUTIONAL

RETIREMENT AND PENSION BENEFITS—See

ABOR

ELATIONS

RETIREMENT OF PUBLIC EMPLOYEES—See

ONSTITUTIONAL

RETROACTIVE APPLICATION OF APPELLATE

OPINIONS—See

ORTGAGES

REVIEW OF PAROLE DECISIONS—See

AROLE

RIGHT OF CONFRONTATION—See

ONSTITUTIONAL

4, 5

APE

RIGHT TO PAROLE—See

AROLE

RULES OF EVIDENCE—See

VIDENCE

2, 3

SANCTIONS FOR DISCOVERY VIOLATIONS—See

RETRIAL

ROCEDURE

SCHEDULE OF ASSETS—See

ANKRUPTCY

1, 2

SCHEDULES OF CONTROLLED SUBSTANCES—See

RIMINAL

SCOPE OF AUTHORITY—See

OVERNMENTAL

MMUNITY

882 294 M

ICH

SELF-INCRIMINATION—See

ONSTITUTIONAL

2, 6

SENTENCES

See, also,

ONSTITUTIONAL

7, 8

ONSECUTIVE

ENTENCES

1. A consecutive sentence may be imposed only if specifi-

cally authorized by statute; a person who is incarcerated

in a penal or reformatory institution and who commits a

crime during that incarceration which is punishable by

imprisonment in a penal or reformatory institution

must, upon conviction of that crime, be sentenced as

provided by law; the term of imprisonment imposed for

the crime must begin to run at the expiration of the

term or terms of imprisonment which the person is

serving or has become liable to serve; an inmate has

become liable to serve a sentence only if that sentence

was imposed, or the act underlying the sentence oc-

curred, in the past; thus, a defendant convicted of an

offense committed while incarcerated for a prior offense

will be given a sentence consecutive to the sentence he

or she is currently serving for that prior offense; and, if

the defendant has committed any offenses between his

or her original sentencing offense and the new sentenc-

ing offense, the defendant’s new sentence will also be

consecutive to the sentences for those prior offenses;

however, if an incarcerated defendant commits two

offenses contemporaneously and those offenses are tried

and sentenced together, the defendant has become liable

to serve the sentences at the same time and the

consecutive-sentencing statute is inapplicable (MCL

768.7a[1]). People v Williams, 294 Mich App 461.

SERVICES TO RECTIFY CONDITIONS LEADING TO

REMOVAL OF CHILD—See

ARENT AND

HILD

SEXUAL-ASSAULT VICTIMS—See

VIDENCE

SHARED-EXPENSE CARPOOLS—See

NSURANCE

NDEX

-D

IGEST

883

SIBLINGS DEFINED—See

ARENT AND

HILD

SIGNATURE REQUIREMENTS FOR

CONSOLIDATION PETITIONS—See

RAINS

SIXTH AMENDMENT—See

ONSTITUTIONAL

4, 5, 7

APE

STATE CORRECTIONAL FACILITY REIMBURSEMENT

ACT—See

RISONS AND

RISONERS

STATEMENTS MADE FOR MEDICAL

TREATMENT—See

VIDENCE

SUBSTANTIAL AND COMPELLING REASONS FOR

DEPARTING FROM PAROLE GUIDELINES—See

AROLE

SUBSTITUTION OF JURORS AFTER

COMMENCEMENT OF DELIBERATIONS—See

RIMINAL

TAXATION

ROPERTY

1. A principal residence is exempt from the tax levied by a

local school district for school operating purposes; the

term “principal residence” includes all of an owner’s

property that is classified as residential, is adjoining or

contiguous to his or her dwelling, and is unoccupied; as

used in the statute, “unoccupied” means without hu-

man occupants (MCL 211.7cc[1], 211.7dd[c]). Elden-

Brady v City of Albion, 294 Mich App 251.

TEMPORAL REQUIREMENTS FOR NARRATIVE

STATEMENTS—See

VIDENCE

884 294 M

ICH

TERMINATION OF PARENTAL RIGHTS—See

ARENT AND

HILD

1, 2, 3

TESTIMONIAL STATEMENTS—See

ONSTITUTIONAL

4, 5

TORTS—See

AMAGES

OVERNMENTAL

MMUNITY

1, 2, 3, 4, 5

TRAFFIC-CONTROL DEVICES—See

OVERNMENTAL

MMUNITY

TRUSTEES IN BANKRUPTCY—See

ANKRUPTCY

1, 2

TRUSTWORTHINESS OF DECLARANT’S

STATEMENTS—See

VIDENCE

UNDERINSURED- AND UNINSURED-MOTORIST

BENEFITS—See

NSURANCE

UNFAIR LABOR PRACTICES—See

ABOR

ELATIONS

UNFAIR PREJUDICE—See

VIDENCE

6, 7

UNSCHEDULED ASSETS—See

ANKRUPTCY

VERDICTS SUBJECT TO REMITTITUR—See

UDGMENTS

VICTIMS OF DOMESTIC VIOLENCE—See

ARENT AND

HILD

VIOLATIONS OF DRAIN CODE—See

RAINS

NDEX

-D

IGEST

885

WORDS AND PHRASES—See

ECORDS

WRITS OF GARNISHMENT—See

ARNISHMENT

886 294 M

ICH