MICHIGAN REPORTS
CASES DECIDED
IN THE
SUPREME COURT
OF
MICHIGAN
FROM
September 19, 2012, through May 10, 2013
JOHN O. JUROSZEK
REPORTER OF DECISIONS
VOL. 493
FIRST EDITION
2013
Copyright 2013, by Michigan Supreme Court
The paper used in this publication meets the minimum
requirements of American National Standard for Information
Sciences—Permanence of Paper for Printed Library Materials,
ANSI Z39.48-1984.
SUPREME COURT
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C
HIEF
J
USTICE
ROBERT P. YOUNG, J
R
. .............................................................. 2019
J
USTICES
MICHAEL F. CAVANAGH............................................................ 2015
MARILYN KELLY......................................................................... 2013
1
STEPHEN J. MARKMAN............................................................ 2021
DIANE M. HATHAWAY ............................................................... 2017
2
MARY BETH KELLY.................................................................... 2019
BRIAN K. ZAHRA ........................................................................ 2015
BRIDGET M. M
C
CORMACK ....................................................... 2021
3
DAVID F. VIVIANO ...................................................................... 2015
4
C
OMMISSIONERS
DANIEL C. BRUBAKER, C
HIEF
C
OMMISSIONER
SHARI M. OBERG, D
EPUTY
C
HIEF
C
OMMISSIONER
TIMOTHY J. RAUBINGER MICHAEL S. WELLMAN
LYNN K. RICHARDSON GARY L. ROGERS
NELSON S. LEAVITT RICHARD B. LESLIE
DEBRA A. GUTIERREZ-M
c
GUIRE FREDERICK M. BAKER, J
R.
ANNE-MARIE HYNOUS VOICE KATHLEEN M. DAWSON
DON W. ATKINS RUTH E. ZIMMERMAN
JÜRGEN O. SKOPPEK SAMUEL R. SMITH
ANNE E. ALBERS
S
TATE
C
OURT
A
DMINISTRATOR
CHAD C. SCHMUCKER
C
LERK:
CORBIN R. DAVIS
R
EPORTER OF
D
ECISIONS:
JOHN O. JUROSZEK
C
RIER:
DAVID G. PALAZZOLO
1
To January 1, 2013.
2
To January 21, 2013.
3
From January 1, 2013.
4
From March 1, 2013.
COURT OF APPEALS
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C
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J
UDGE
WILLIAM B. MURPHY................................................................. 2019
C
HIEF
J
UDGE
P
RO
T
EM
DAVID H. SAWYER....................................................................... 2017
J
UDGES
MARK J. CAVANAGH ................................................................... 2015
KATHLEEN JANSEN ................................................................... 2019
E. THOMAS FITZGERALD.......................................................... 2015
HENRY WILLIAM SAAD.............................................................. 2015
JOEL P. HOEKSTRA..................................................................... 2017
JANE E. MARKEY......................................................................... 2015
PETER D. O’CONNELL ............................................................... 2019
WILLIAM C. WHITBECK............................................................. 2017
MICHAEL J. TALBOT .................................................................. 2015
KURTIS T. WILDER...................................................................... 2017
PATRICK M. METER.................................................................... 2015
DONALD S. OWENS..................................................................... 2017
KIRSTEN FRANK KELLY............................................................ 2019
CHRISTOPHER M. MURRAY...................................................... 2015
PAT M. DONOFRIO ...................................................................... 2017
KAREN FORT HOOD ................................................................... 2015
STEPHEN L. BORRELLO............................................................ 2019
DEBORAH A. SERVITTO............................................................. 2019
JANE M. BECKERING ................................................................. 2019
ELIZABETH L. GLEICHER......................................................... 2019
CYNTHIA DIANE STEPHENS.................................................... 2017
MICHAEL J. KELLY...................................................................... 2015
DOUGLAS B. SHAPIRO ............................................................... 2019
AMY RONAYNE KRAUSE............................................................ 2015
MARK T. BOONSTRA................................................................... 2015
MICHAEL J. RIORDAN................................................................ 2019
C
HIEF
C
LERK
/R
ESEARCH
D
IRECTOR:
LARRY S. ROYSTER
CIRCUIT JUDGES
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1. MICHAEL R. SMITH ........................................................ 2015
2. ALFRED M. BUTZBAUGH .............................................. 2013
JOHN E. DEWANE ........................................................... 2015
JOHN M. DONAHUE ....................................................... 2017
CHARLES T. L
A
SATA........................................................ 2017
3. DEBORAH ROSS ADAMS................................................ 2019
DAVID J. ALLEN............................................................... 2015
WENDY M. BAXTER ........................................................ 2019
ANNETTE J. BERRY ........................................................ 2019
GREGORY D. BILL ........................................................... 2019
SUSAN D. BORMAN......................................................... 2015
ULYSSES W. BOYKIN....................................................... 2015
MARGIE R. BRAXTON..................................................... 2017
MEGAN MAHER BRENNAN .......................................... 2015
JAMES A. CALLAHAN ..................................................... 2017
MICHAEL J. CALLAHAN................................................. 2015
JEROME C. CAVANAGH.................................................. 2019
ERIC WILLIAM CHOLACK ............................................. 2017
JAMES R. CHYLINSKI..................................................... 2017
ROBERT J. COLOMBO, J
R
. ............................................. 2019
DAPHNE MEANS CURTIS.............................................. 2015
CHRISTOPHER D. DINGELL ......................................... 2015
MARTHA M. SNOW.......................................................... 2017
1
PRENTIS EDWARDS........................................................ 2013
CHARLENE M. ELDER.................................................... 2015
VONDA R. EVANS............................................................. 2015
EDWARD EWELL, J
R
. ...................................................... 2019
PATRICIA SUSAN FRESARD.......................................... 2017
SHEILA ANN GIBSON..................................................... 2017
JOHN H. GILLIS, J
R
. ....................................................... 2015
DAVID ALAN GRONER ................................................... 2017
RICHARD B. HALLORAN, J
R
. ........................................ 2019
AMY PATRICIA HATHAWAY........................................... 2019
1
From December 5, 2012.
v
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CYNTHIA GRAY HATHAWAY......................................... 2017
MICHAEL M. HATHAWAY .............................................. 2017
SUSAN L. HUBBARD....................................................... 2017
MURIEL D. HUGHES....................................................... 2017
THOMAS EDWARD JACKSON ....................................... 2013
VERA MASSEY JONES .................................................... 2015
CONNIE MARIE KELLEY ............................................... 2015
TIMOTHY MICHAEL KENNY ........................................ 2017
ARTHUR J. LOMBARD .................................................... 2015
KATHLEEN I. MACDONALD.......................................... 2017
KATHLEEN M. M
C
CARTHY............................................ 2019
WADE H. M
C
CREE............................................................ 2015
BRUCE U. MORROW........................................................ 2017
JOHN A. MURPHY ........................................................... 2017
MARIA L. OXHOLM ......................................................... 2019
LINDA V. PARKER ............................................................ 2019
LYNNE A. PIERCE............................................................ 2015
LITA MASINI POPKE ...................................................... 2017
DANIEL P. RYAN............................................................... 2019
MICHAEL F. SAPALA ....................................................... 2013
RICHARD M. SKUTT ....................................................... 2015
MARK T. SLAVENS........................................................... 2017
LESLIE KIM SMITH ........................................................ 2019
VIRGIL C. SMITH............................................................. 2019
JEANNE STEMPIEN........................................................ 2017
CRAIG S. STRONG ........................................................... 2015
BRIAN R. SULLIVAN ....................................................... 2017
LAWRENCE S. TALON .................................................... 2015
DEBORAH A. THOMAS ................................................... 2019
MARGARET MARY V
AN
HOUTEN .................................. 2015
CAROLE F. YOUNGBLOOD............................................. 2013
ROBERT L. ZIOLKOWSKI............................................... 2015
4. SUSAN E. BEEBE ............................................................. 2017
RICHARD N. L
A
FLAMME ................................................ 2017
JOHN G. M
C
BAIN, J
R
. ...................................................... 2015
THOMAS D. WILSON....................................................... 2019
5. AMY M
C
DOWELL.............................................................. 2015
6. JAMES M. ALEXANDER.................................................. 2015
MARTHA ANDERSON ..................................................... 2015
LEO BOWMAN.................................................................. 2019
MARY ELLEN BRENNAN ............................................... 2017
RAE LEE CHABOT........................................................... 2017
LISA ORTLIEB GORCYCA............................................... 2015
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NANCI J. GRANT.............................................................. 2015
SHALINA D. KUMAR ....................................................... 2015
DENISE LANGFORD-MORRIS ....................................... 2019
CHERYL A. MATTHEWS................................................. 2017
RUDY J. NICHOLS............................................................ 2015
COLLEEN A. O’BRIEN .................................................... 2017
DANIEL PATRICK O’BRIEN........................................... 2017
WENDY LYNN POTTS..................................................... 2019
EDWARD SOSNICK.......................................................... 2013
MICHAEL D. WARREN, J
R
. ............................................. 2019
JOAN E. YOUNG .............................................................. 2017
7. DUNCAN M. BEAGLE...................................................... 2017
JOSEPH J. FARAH............................................................ 2017
JUDITH A. FULLERTON ................................................ 2019
JOHN A. GADOLA............................................................ 2015
ARCHIE L. HAYMAN ....................................................... 2019
GEOFFREY L. NEITHERCUT ........................................ 2019
DAVID J. NEWBLATT ...................................................... 2017
MICHAEL J. THEILE ....................................................... 2015
RICHARD B. YUILLE....................................................... 2015
8. DAVID A. HOORT ............................................................. 2017
SUZANNE KREEGER ...................................................... 2015
9. GARY C. GIGUERE, J
R
. ................................................... 2015
STEPHEN D. GORSALITZ............................................... 2017
J. RICHARDSON JOHNSON ........................................... 2017
PAMELA L. LIGHTVOET ................................................ 2019
ALEXANDER C. LIPSEY.................................................. 2017
10. JANET M. BOES ............................................................... 2019
FRED L. BORCHARD....................................................... 2017
DARNELL JACKSON........................................................ 2019
ROBERT L. KACZMAREK ............................................... 2015
11. WILLIAM W. CARMODY .................................................. 2015
12. CHARLES R. GOODMAN................................................. 2015
13. THOMAS G. POWER ........................................................ 2017
PHILIP E. RODGERS, J
R
. ............................................... 2015
14. JAMES M. GRAVES, J
R
. .................................................. 2013
TIMOTHY G. HICKS ........................................................ 2017
WILLIAM C. MARIETTI................................................... 2017
JOHN C. RUCK ................................................................. 2015
2
15. PATRICK W. O’GRADY..................................................... 2015
16. JAMES M. BIERNAT, S
R
. ................................................. 2019
RICHARD L. CARETTI..................................................... 2017
2
To March 31, 2013.
vii
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MARY A. CHRZANOWSKI ............................................... 2017
DIANE M. DRUZINSKI .................................................... 2015
JOHN C. FOSTER............................................................. 2015
PETER J. MACERONI...................................................... 2015
EDWARD A. SERVITTO, J
R
. ........................................... 2019
MARK S. SWITALSKI....................................................... 2019
MATTHEW S. SWITALSKI .............................................. 2015
DAVID VIVIANO ............................................................... 2019
TRACEY A. YOKICH ........................................................ 2019
17. GEORGE S. BUTH............................................................ 2017
PAUL J. DENEFELD......................................................... 2017
KATHLEEN A. FEENEY.................................................. 2015
DONALD A. JOHNSTON, III........................................... 2019
DENNIS B. LEIBER.......................................................... 2019
JAMES ROBERT REDFORD............................................ 2017
PAUL J. SULLIVAN .......................................................... 2015
MARK A. TRUSOCK......................................................... 2019
CHRISTOPHER P. YATES................................................ 2019
DANIEL V. ZEMAITIS ...................................................... 2015
18. HARRY P. GILL.................................................................. 2017
KENNETH W. SCHMIDT ................................................. 2019
JOSEPH K. SHEERAN..................................................... 2015
19. JAMES M. BATZER........................................................... 2015
20. KENT D. ENGLE .............................................................. 2017
JON H. HULSING............................................................. 2015
EDWARD R. POST ............................................................ 2017
JON VAN ALLSBURG ...................................................... 2019
21. PAUL H. CHAMBERLAIN................................................ 2017
MARK H. DUTHIE............................................................ 2019
22. ARCHIE CAMERON BROWN.......................................... 2017
TIMOTHY P. CONNORS................................................... 2019
MELINDA MORRIS .......................................................... 2013
DONALD E. SHELTON .................................................... 2015
DAVID S. SWARTZ ............................................................ 2015
23. RONALD M. BERGERON ................................................ 2015
WILLIAM F. MYLES.......................................................... 2017
24. DONALD A. TEEPLE ....................................................... 2015
25. JENNIFER MAZZUCHI.................................................... 2015
THOMAS L. SOLKA.......................................................... 2017
26. MICHAEL G. MACK ......................................................... 2015
27. ANTHONY A. MONTON.................................................. 2019
TERRENCE R. THOMAS ................................................. 2015
28. WILLIAM M. FAGERMAN ............................................... 2015
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29. MICHELLE M. RICK ........................................................ 2017
RANDY L. TAHVONEN.................................................... 2015
30. ROSEMARIE ELIZABETH AQUILINA .......................... 2015
LAURA BAIRD................................................................... 2019
CLINTON CANADY, III.................................................... 2017
WILLIAM E. COLLETTE ................................................. 2015
JOYCE DRAGANCHUK.................................................... 2017
JANELLE A. LAWLESS.................................................... 2015
PAULA J.M. MANDERFIELD .......................................... 2013
31. JAMES P. ADAIR ............................................................... 2013
DANIEL J. KELLY............................................................. 2015
CYNTHIA A. LANE........................................................... 2017
32. ROY D. GOTHAM.............................................................. 2015
33. RICHARD M. PAJTAS....................................................... 2015
34. MICHAEL J. BAUMGARTNER........................................ 2017
35. GERALD D. LOSTRACCO................................................ 2015
36. KATHLEEN BRICKLEY................................................... 2019
PAUL E. HAMRE............................................................... 2015
37. ALLEN L. GARBRECHT .................................................. 2017
JAMES C. KINGSLEY....................................................... 2015
STEPHEN B. MILLER...................................................... 2017
CONRAD J. SINDT ........................................................... 2019
38. JOSEPH A. COSTELLO, J
R
. ............................................ 2015
MICHAEL W. L
A
BEAU...................................................... 2019
MICHAEL A. WEIPERT ................................................... 2017
DANIEL WHITE................................................................ 2015
39. MARGARET MURRAY-SCHOLZE NOE ......................... 2015
TIMOTHY P. PICKARD .................................................... 2019
40. MICHAEL P. HIGGINS..................................................... 2015
3
NICK O. HOLOWKA ......................................................... 2017
BYRON KONSCHUH........................................................ 2015
4
41. MARY BROUILLETTE BARGLIND................................ 2017
RICHARD J. CELELLO .................................................... 2015
42. MICHAEL J. BEALE ......................................................... 2015
JONATHAN E. LAUDERBACH....................................... 2013
5
43. MICHAEL E. DODGE ....................................................... 2017
44. MICHAEL P. HATTY......................................................... 2019
DAVID READER................................................................ 2017
45. PAUL E. STUTESMAN..................................................... 2019
3
To March 29, 2013.
4
From April 8, 2013.
5
To March 1, 2013.
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46. JANET M. ALLEN............................................................. 2011
GEORGE J. MERTZ .......................................................... 2015
4
47. STEPHEN T. DAVIS.......................................................... 2017
48. MARGARET BAKKER...................................................... 2017
KEVIN W. CRONIN........................................................... 2015
49. SCOTT P. HILL-KENNEDY ............................................. 2019
RONALD C. NICHOLS ..................................................... 2015
50. NICHOLAS J. LAMBROS ................................................. 2013
51. RICHARD I. COOPER ...................................................... 2015
52. M. RICHARD KNOBLOCK............................................... 2015
53. SCOTT LEE PAVLICH...................................................... 2017
54. AMY GIERHART ............................................................... 2019
7
PATRICK REED JOSLYN................................................. 2013
55. THOMAS R. EVANS.......................................................... 2015
ROY G. MIENK.................................................................. 2019
56. THOMAS S. EVELAND .................................................... 2013
CALVIN E. OSTERHAVEN .............................................. 2015
57. CHARLES W. JOHNSON.................................................. 2019
6
From January 22, 2013.
7
From December 17, 2012.
x
DISTRICT JUDGES
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1. MARK S. BRAUNLICH...................................................... 2015
TERRENCE P. BRONSON................................................. 2019
JACK VITALE..................................................................... 2017
2A. LAURA J. SCHAEDLER .................................................... 2017
JAMES E. SHERIDAN....................................................... 2015
2B. DONALD L. SANDERSON................................................ 2015
3A. BRENT R. WEIGLE ........................................................... 2015
3B. JEFFREY C. MIDDLETON............................................... 2015
WILLIAM D. WELTY ......................................................... 2013
4. STACEY A. RENTFROW................................................... 2015
5. GARY J. BRUCE ................................................................. 2017
ANGELA PASULA.............................................................. 2015
SCOTT SCHOFIELD.......................................................... 2015
STERLING R. SCHROCK ................................................. 2019
DENNIS M. WILEY............................................................ 2017
7. ARTHUR H. CLARKE, III................................................. 2015
ROBERT T. HENTCHEL................................................... 2017
8-1. ANNE E. BLATCHFORD .................................................. 2019
PAUL J. BRIDENSTINE.................................................... 2019
CAROL A. HUSUM ............................................................ 2017
1
8-2. ROBERT C. KROPF ........................................................... 2015
8-3. RICHARD A. SANTONI..................................................... 2015
VINCENT C. WESTRA ...................................................... 2017
10. SAMUEL I. DURHAM, J
R
. ................................................ 2017
JOHN A. HALLACY........................................................... 2015
JOHN R. HOLMES ............................................................ 2019
FRANKLIN K. LINE, J
R
. .................................................. 2015
12. JOSEPH S. FILIP............................................................... 2017
DANIEL GOOSTREY......................................................... 2013
JAMES M. JUSTIN ............................................................ 2013
MICHAEL J. KLAEREN.................................................... 2015
R. DARRYL MAZUR........................................................... 2015
14A. RICHARD E. CONLIN....................................................... 2015
J. CEDRIC SIMPSON......................................................... 2019
KIRK W. TABBEY............................................................... 2017
1
To February 28, 2013.
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14B. CHARLES POPE ................................................................ 2015
15. JULIE CREAL..................................................................... 2013
CHRISTOPHER S. EASTHOPE ....................................... 2015
ELIZABETH POLLARD HINES....................................... 2017
16. SEAN P. KAVANAGH ......................................................... 2015
KATHLEEN J. M
C
CANN ................................................... 2019
17. KAREN KHALIL ................................................................ 2017
CHARLOTTE L. WIRTH ................................................... 2015
18. SANDRA A. CICIRELLI..................................................... 2019
MARK A. M
C
CONNELL .................................................... 2015
19. WILLIAM C. HULTGREN ................................................. 2017
MARK W. SOMERS ............................................................ 2015
RICHARD WYGONIK ........................................................ 2013
20. MARK J. PLAWECKI......................................................... 2015
DAVID TURFE.................................................................... 2019
21. RICHARD L. HAMMER, J
R
. ............................................. 2015
22. SABRINA JOHNSON......................................................... 2013
23. GENO SALOMONE ........................................................... 2019
WILLIAM J. SUTHERLAND............................................. 2015
24. JOHN T. COURTRIGHT.................................................... 2015
RICHARD A. PAGE............................................................ 2017
25. DAVID A. BAJOREK.......................................................... 2015
DAVID J. ZELENAK........................................................... 2017
26. MICHAEL F. CIUNGAN .................................................... 2015
27. RANDY L. KALMBACH..................................................... 2019
28. JAMES A. KANDREVAS.................................................... 2015
29. LAURA REDMOND MACK............................................... 2019
30. BRIGETTE R. OFFICER ................................................... 2017
31. PAUL J. PARUK.................................................................. 2015
32A. ROGER J. L
A
ROSE............................................................ 2015
33. JENNIFER COLEMAN HESSON .................................... 2017
JAMES KURT KERSTEN.................................................. 2015
MICHAEL K. M
C
NALLY.................................................... 2019
34. TINA BROOKS GREEN .................................................... 2019
BRIAN A. OAKLEY............................................................ 2017
DAVID M. PARROTT ......................................................... 2015
35. MICHAEL J. GEROU......................................................... 2017
RONALD W. LOWE ............................................................ 2019
JAMES A. PLAKAS ............................................................ 2015
36. LYDIA NANCE ADAMS..................................................... 2017
ROBERTA C. ARCHER...................................................... 2019
MARYLIN E. ATKINS........................................................ 2013
JOSEPH N. BALTIMORE.................................................. 2015
NANCY M
C
CAUGHAN BLOUNT..................................... 2015
IZETTA F. BRIGHT............................................................ 2017
ESTHER LYNISE BRYANT-WEEKES.............................. 2015
RUTH C. CARTER ............................................................. 2017
DONALD COLEMAN......................................................... 2019
PRENTIS EDWARDS, J
R
. ................................................. 2019
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DEBORAH GERALDINE FORD....................................... 2017
RUTH ANN GARRETT ..................................................... 2019
RONALD GILES................................................................. 2015
KATHERINE HANSEN ..................................................... 2017
SHANNON A. HOLMES.................................................... 2015
PAULA G. HUMPHRIES ................................................... 2017
PATRICIA L. JEFFERSON................................................ 2015
VANESA F. JONES-BRADLEY ......................................... 2013
KENNETH J. KING........................................................... 2015
DEBORAH L. LANGSTON ............................................... 2019
DEMETRIA BRUE ............................................................ 2015
LEONIA J. LLOYD............................................................. 2017
MIRIAM B. MARTIN-CLARK ........................................... 2017
WILLIAM M
C
CONICO ....................................................... 2019
DONNA R. MILHOUSE..................................................... 2019
B. PENNIE MILLENDER ................................................. 2017
CYLENTHIA L. MILLER .................................................. 2017
KEVIN F. ROBBINS........................................................... 2019
DAVID S. ROBINSON, J
R
. ................................................ 2019
BRENDA KAREN SANDERS............................................ 2015
MICHAEL E. WAGNER..................................................... 2015
37. DEAN AUSILIO.................................................................. 2017
2
JOHN M. CHMURA ........................................................... 2019
JENNIFER FAUNCE ......................................................... 2015
DAWNN M. GRUENBURG ............................................... 2017
3
MATTHEW P. SABAUGH.................................................. 2013
38. CARL F. GERDS III ............................................................ 2015
39. JOSEPH F. BOEDEKER.................................................... 2015
MARCO A. SANTIA ........................................................... 2019
CATHERINE B. STEENLAND ......................................... 2017
40. MARK A. FRATARCANGELI............................................ 2019
JOSEPH CRAIGEN OSTER.............................................. 2015
41A. MICHAEL S. MACERONI ................................................. 2015
DOUGLAS P. SHEPHERD................................................. 2019
STEPHEN S. SIERAWSKI ................................................ 2017
KIMBERLEY ANNE WIEGAND....................................... 2019
41B. LINDA DAVIS ..................................................................... 2015
CARRIE LYNN FUCA ........................................................ 2017
SEBASTIAN LUCIDO........................................................ 2019
42-1. DENIS R. L
E
DUC ............................................................... 2015
42-2. WILLIAM H. HACKELL III .............................................. 2019
43. CHARLES G. GOEDERT................................................... 2015
KEITH P. HUNT................................................................. 2019
JOSEPH LONGO................................................................ 2017
44. TERRENCE H. BRENNAN............................................... 2015
2
From December 5, 2012.
3
To May 21, 2013.
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DANIEL SAWICKI ............................................................. 2013
45A. JAMES L. WITTENBERG ................................................. 2015
45B. MICHELLE FRIEDMAN APPEL ..................................... 2015
DAVID M. GUBOW ............................................................ 2015
46. SHEILA R. JOHNSON....................................................... 2015
SUSAN M. MOISEEV ........................................................ 2013
WILLIAM J. RICHARDS.................................................... 2017
47. JAMES BRADY ................................................................... 2015
MARLA E. PARKER........................................................... 2017
48. MARC BARRON ................................................................. 2017
DIANE D’AGOSTINI ......................................................... 2019
KIMBERLY SMALL............................................................ 2015
50. RONDA FOWLKES GROSS .............................................. 2019
MICHAEL C. MARTINEZ.................................................. 2015
PRESTON G. THOMAS..................................................... 2017
CYNTHIA THOMAS WALKER......................................... 2015
51. JODI R. DEBBRECHT SWITALSKI................................. 2019
RICHARD D. KUHN, J
R
. ................................................... 2015
52-1. ROBERT BONDY ............................................................... 2019
BRIAN W. M
AC
KENZIE...................................................... 2015
DENNIS N. POWERS ........................................................ 2017
52-2. JOSEPH G. FABRIZIO....................................................... 2015
KELLEY RENAE KOSTIN................................................ 2017
52-3. LISA L. ASADOORIAN...................................................... 2019
NANCY TOLWIN CARNIAK............................................. 2017
JULIE A. NICHOLSON ..................................................... 2015
52-4. WILLIAM E. BOLLE.......................................................... 2015
DENNIS C. DRURY............................................................ 2013
KIRSTEN NIELSEN HARTIG.......................................... 2017
53. THERESA M. BRENNAN ................................................. 2015
L. SUZANNE GEDDIS....................................................... 2017
CAROL SUE READER....................................................... 2019
54A. LOUISE ALDERSON ......................................................... 2017
PATRICK F. CHERRY ........................................................ 2015
FRANK J. D
E
LUCA ............................................................ 2019
CHARLES F. FILICE.......................................................... 2015
54B. RICHARD D. BALL ............................................................ 2017
DAVID L. JORDON............................................................ 2013
55. DONALD L. ALLEN........................................................... 2017
THOMAS P. BOYD.............................................................. 2015
56A. HARVEY J. HOFFMAN ..................................................... 2017
JULIE H. REINCKE .......................................................... 2015
56B. MICHAEL LEE SCHIPPER .............................................. 2019
57. WILLIAM A. BAILLARGEON........................................... 2019
JOSEPH S. SKOCELAS..................................................... 2015
58. SUSAN A. JONAS .............................................................. 2015
RICHARD J. KLOOTE....................................................... 2013
BRADLEY S. KNOLL......................................................... 2015
KENNETH D. POST.......................................................... 2017
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E
XPIRES
J
ANUARY
1
OF
59. PETER P. VERSLUIS......................................................... 2017
60. HAROLD F. CLOSZ, III...................................................... 2015
MARIA LADAS HOOPES .................................................. 2015
MICHAEL JEFFREY NOLAN .......................................... 2019
ANDREW WIERENGO ...................................................... 2017
61. DAVID J. BUTER................................................................ 2015
J. MICHAEL CHRISTENSEN........................................... 2017
JEANINE NEMESI L
A
VILLE ........................................... 2019
BEN H. LOGAN, II............................................................. 2019
DONALD H. PASSENGER................................................ 2017
KIMBERLY A. SCHAEFER ............................................... 2015
62A. PABLO CORTES................................................................. 2015
STEVEN M. TIMMERS ..................................................... 2019
62B. WILLIAM G. KELLY .......................................................... 2015
63-1. STEVEN R. SERVAAS ....................................................... 2015
63-2. SARA J. SMOLENSKI........................................................ 2015
64A. RAYMOND P. VOET........................................................... 2015
64B. DONALD R. HEMINGSEN ............................................... 2015
65A. RICHARD D. WELLS......................................................... 2015
65B. STEWART D. M
C
DONALD................................................ 2015
66. WARD L. CLARKSON........................................................ 2019
TERRANCE P. DIGNAN .................................................... 2015
67-1. DAVID J. GOGGINS........................................................... 2015
67-2. JOHN L. CONOVER .......................................................... 2015
MARK W. LATCHANA....................................................... 2017
67-3. LARRY STECCO................................................................. 2015
67-4. MARK C. M
C
CABE ............................................................. 2015
CHRISTOPHER ODETTE................................................. 2019
68. TRACY L. COLLIER-NIX .................................................. 2015
WILLIAM H. CRAWFORD, II ........................................... 2019
MARY CATHERINE DOWD.............................................. 2017
HERMAN MARABLE, J
R
. ................................................. 2019
NATHANIEL C. PERRY, III .............................................. 2015
70-1. TERRY L. CLARK .............................................................. 2019
M. RANDALL JURRENS................................................... 2017
M. T. THOMPSON, J
R
. ...................................................... 2015
70-2. CHRISTOPHER S. BOYD ................................................. 2017
ALFRED T. FRANK............................................................ 2015
KYLE HIGGS TARRANT .................................................. 2019
71A. LAURA CHEGER BARNARD ........................................... 2015
JOHN T. CONNOLLY ........................................................ 2013
71B. KIM DAVID GLASPIE ....................................................... 2015
72. MICHAEL L. HULEWICZ ................................................. 2017
JOHN D. MONAGHAN...................................................... 2019
CYNTHIA SIEMEN PLATZER ......................................... 2015
73A. GREGORY S. ROSS............................................................ 2015
73B. DAVID B. HERRINGTON ................................................. 2015
74. MARK E. JANER................................................................ 2015
TIMOTHY J. KELLY .......................................................... 2013
xv
T
ERM
E
XPIRES
J
ANUARY
1
OF
DAWN A. KILDA ................................................................ 2015
75. STEVEN CARRAS.............................................................. 2017
JOHN HENRY HART ........................................................ 2015
76. WILLIAM R. RUSH............................................................ 2015
77. SUSAN H. GRANT............................................................. 2015
78. H. KEVIN DRAKE ............................................................. 2015
79. PETER J. WADEL .............................................................. 2015
80. JOSHUA M. FARRELL ...................................................... 2015
81. ALLEN C. YENIOR............................................................ 2015
82. RICHARD E. NOBLE......................................................... 2015
83. DANIEL L. SUTTON ......................................................... 2015
84. DAVID A. HOGG ................................................................ 2015
4
85. BRENT V. DANIELSON .................................................... 2015
86. MICHAEL J. HALEY.......................................................... 2015
THOMAS J. PHILLIPS ...................................................... 2013
MICHAEL STEPKA ........................................................... 2017
87. PATRICIA A. MORSE ........................................................ 2015
88. THEODORE O. JOHNSON ............................................... 2015
89. MARIA L. BARTON ........................................................... 2015
90. RICHARD W. MAY.............................................................. 2015
91. ELIZABETH BIOLETTE CHURCH................................. 2015
92. BETH GIBSON................................................................... 2015
93. MARK E. LUOMA .............................................................. 2009
94. GLENN A. PEARSON........................................................ 2015
95A. JEFFREY G. BARSTOW.................................................... 2015
95B. CHRISTOPHER S. NINOMIYA ........................................ 2015
96. DENNIS H. GIRARD ......................................................... 2017
ROGER W. KANGAS .......................................................... 2015
97. MARK A. WISTI ................................................................. 2015
98. ANDERS B. TINGSTAD, J
R
. ............................................ 2015
4
To January 1, 2013.
xvi
MUNICIPAL JUDGES
T
ERM
E
XPIRES
J
ANUARY
1
OF
RUSSELL F. ETHRIDGE....................................................... 2012
CARL F. JARBOE ................................................................... 2014
THEODORE A. METRY ........................................................ 2011
MATTHEW R. RUMORA....................................................... 2014
xvii
PROBATE JUDGES
T
ERM
E
XPIRES
C
OUNTY
J
ANUARY
1
OF
Alcona .......................LAURA A. FRAWLEY .............................. 2019
Alger/Schoolcraft......CHARLES C. NEBEL............................... 2019
Allegan ......................MICHAEL L. BUCK................................. 2019
Alpena .......................THOMAS J. L
A
CROSS ............................. 2019
Antrim.......................NORMAN R. HAYES................................ 2019
Arenac.......................RICHARD E. VOLLBACH, J
R
. ................ 2019
Baraga.......................TIMOTHY S. BRENNAN ........................ 2019
Barry .........................WILLIAM M. DOHERTY......................... 2013
Bay ............................KAREN TIGHE ........................................ 2013
Benzie........................NANCY A. KIDA....................................... 2013
Berrien ......................MABEL JOHNSON MAYFIELD............. 2015
Berrien ......................THOMAS E. NELSON ............................. 2019
Branch.......................FREDERICK L. WOOD ........................... 2013
Calhoun.....................MICHAEL L. JACONETTE..................... 2017
Cass ...........................SUSAN L. DOBRICH ............................... 2019
Cheboygan ................ROBERT JOHN BUTTS.......................... 2019
Chippewa ......................................................................................
Clare/Gladwin...........THOMAS P. McLAUGHLIN .................... 2019
Clinton ......................LISA SULLIVAN....................................... 2019
Crawford ...................MONTE BURMEISTER........................... 2019
Delta..........................ROBERT E. GOEBEL, J
R
. ....................... 2019
Dickinson..................THOMAS D. SLAGLE.............................. 2019
Eaton.........................THOMAS K. BYERLEY ........................... 2019
Emmet/Charlevoix ...FREDERICK R. MULHAUSER .............. 2019
Genesee.....................JENNIE E. BARKEY ............................... 2015
Genesee.....................F. KAY BEHM ........................................... 2019
Gogebic......................JOEL L. MASSIE...................................... 2019
Grand Traverse........DAVID L. STOWE .................................... 2013
Gratiot.......................JACK T. ARNOLD .................................... 2013
Hillsdale....................MICHAEL E. NYE.................................... 2013
Houghton..................FRASER T. STROME............................... 2019
Huron........................DAVID L. CLABUESCH .......................... 2019
Ingham......................R. GEORGE ECONOMY.......................... 2019
xviii
Ingham......................RICHARD JOSEPH GARCIA.................. 2015
Ionia ..........................ROBERT SYKES, J
R
................................. 2019
Iosco ..........................JOHN D. HAMILTON.............................. 2013
Iron............................C. JOSEPH SCHWEDLER ...................... 2019
Isabella......................WILLIAM T. ERVIN ................................. 2019
Jackson .....................DIANE M. RAPPLEYE ............................ 2019
Kalamazoo ................CURTIS J. BELL, J
R
................................. 2019
Kalamazoo ................PATRICIA N. CONLON ........................... 2015
Kalamazoo ................DONALD R. HALSTEAD ........................ 2017
Kalkaska ...................LYNNE MARIE BUDAY .......................... 2019
Kent...........................NANARUTH H. CARPENTER ............... 2017
Kent...........................PATRICIA D. GARDNER......................... 2019
Kent...........................G. PATRICK HILLARY ............................ 2019
Kent...........................DAVID M. MURKOWSKI ........................ 2015
Kent...........................GEORGE JAY QUIST .............................. 2017
Keweenaw.................JAMES G. JAASKELAINEN ................... 2019
Lake...........................MARK S. WICKENS................................. 2019
Lapeer .......................JUSTUS C. SCOTT .................................. 2019
Leelanau ...................LARRY J. NELSON .................................. 2019
Lenawee ....................GREGG P. IDDINGS ................................ 2019
Livingston.................CAROL HACKETT GARAGIOLA........... 2013
Luce/Mackinac..........W. CLAYTON GRAHAM .......................... 2019
Macomb.....................KATHRYN A. GEORGE........................... 2015
Macomb.....................PAMELA GILBERT O’SULLIVAN ......... 2013
Manistee....................THOMAS N. BRUNNER.......................... 2019
Marquette .................MICHAEL J. ANDEREGG....................... 2013
Mason........................MARK D. RAVEN..................................... 2013
Mecosta/Osceola .......MARCO S. MENEZES.............................. 2019
Menominee ...............WILLIAM A. HUPY.................................. 2019
Midland.....................DORENE S. ALLEN................................. 2019
Missaukee .................CHARLES R. PARSONS .......................... 2019
Monroe......................JOHN A. HOHMAN, J
R
. .......................... 2019
Montcalm..................CHARLES W. SIMON, III ........................ 2019
Montmorency............JOHN E. FITZGERALD .......................... 2013
Muskegon..................NEIL G. MULLALLY ............................... 2017
Muskegon..................GREGORY C. PITTMAN ......................... 2019
Newaygo....................GRAYDON W. DIMKOFF ........................ 2019
Oakland.....................LINDA S. HALLMARK ............................ 2019
Oakland.....................DANIEL A. O’BRIEN............................... 2015
Oakland.....................ELIZABETH M. PEZZETTI .................... 2017
Oakland.....................KATHLEEN A. RYAN .............................. 2017
Oceana ......................BRADLEY G. LAMBRIX.......................... 2019
Ogemaw ....................SHANA A. LAMBOURN.......................... 2019
Ontonagon ................JANIS M. BURGESS................................ 2019
Oscoda.......................KATHRYN JOAN ROOT ......................... 2019
xix
Otsego .......................MICHAEL K. COOPER ........................... 2019
Ottawa ......................MARK A. FEYEN ..................................... 2019
Presque Isle..............DONALD J. M
C
LENNAN ........................ 2019
Roscommon ..............DOUGLAS C. DOSSON ........................... 2019
Saginaw.....................FAYE M. HARRISON ............................... 2015
Saginaw.....................PATRICK J. M
C
GRAW.............................. 2019
St. Clair.....................ELWOOD L. BROWN............................... 2015
St. Clair.....................JOHN TOMLINSON................................ 2019
St. Joseph .................THOMAS E. SHUMAKER....................... 2013
Sanilac.......................R. TERRY MALTBY ................................. 2013
Sanilac.......................GREGORY S. ROSS.................................. 2015
Shiawassee................JAMES R. CLATTERBAUGH ................. 2013
Tuscola......................W. WALLACE KENT, J
R
........................... 2013
Van Buren.................FRANK D. WILLIS................................... 2019
Washtenaw................NANCY CORNELIA WHEELER ............ 2015
Washtenaw................DARLENE A. O’BRIEN........................... 2019
Wayne........................JUNE E. BLACKWELL-HATCHER ....... 2019
Wayne........................FREDDIE G. BURTON, J
R
. ..................... 2019
Wayne........................JUDY A. HARTSFIELD........................... 2015
Wayne........................MILTON L. MACK, J
R
. ............................ 2017
Wayne........................MARTIN T. MAHER................................. 2015
Wayne........................LISA MARIE NEILSON .......................... 2017
Wayne........................FRANK S. SZYMANSKI .......................... 2019
Wexford .....................KENNETH L. TACOMA.......................... 2019
xx
JUDICIAL CIRCUITS
County Seat Circuit
Alcona....................Harrisville ......... 26
Alger......................Munising ........... 11
Allegan ..................Allegan............... 48
Alpena ...................Alpena................ 26
Antrim...................Bellaire .............. 13
Arenac ...................Standish ............ 34
Baraga ...................L’Anse................ 12
Barry .....................Hastings ............ 5
Bay.........................Bay City............. 18
Benzie....................Beulah ............... 19
Berrien ..................St. Joseph.......... 2
Branch...................Coldwater .......... 15
Calhoun.................Marshall, Battle
Creek................ 37
Cass .......................Cassopolis.......... 43
Charlevoix.............Charlevoix ......... 33
Cheboygan ............Cheboygan......... 53
Chippewa ..............Sault Ste. Marie. 50
Clare......................Harrison ............ 55
Clinton ..................St. Johns............ 29
Crawford ...............Grayling............. 46
Delta......................Escanaba ........... 47
Dickinson ..............Iron Mountain .. 41
Eaton.....................Charlotte ........... 5
Emmet...................Petoskey ............ 33
Genesee .................Flint................... 7
Gladwin.................Gladwin ............. 55
Gogebic..................Bessemer ........... 32
Grand Traverse ....Traverse City .... 13
Gratiot...................Ithaca................. 29
Hillsdale ................Hillsdale ............ 1
Houghton ..............Houghton .......... 12
Huron....................Bad Axe ............. 52
Ingham..................Mason, Lansing. 30
Ionia ......................Ionia................... 8
Iosco ......................Tawas City ........ 23
Iron........................Crystal Falls ...... 41
Isabella..................Mount Pleasant. 21
Jackson..................Jackson.............. 4
Kalamazoo ............Kalamazoo......... 9
Kalkaska ...............Kalkaska............ 46
Kent.......................Grand Rapids.... 17
Keweenaw.............Eagle River........ 12
County Seat Circuit
Lake ................Baldwin ................. 51
Lapeer.............Lapeer ................... 40
Leelanau .........Leland ................... 13
Lenawee..........Adrian ................... 39
Livingston.......Howell ................... 44
Luce.................Newberry .............. 11
Mackinac.........St. Ignace .............. 50
Macomb...........Mount Clemens .... 16
Manistee .........Manistee................ 19
Marquette.......Marquette ............. 25
Mason..............Ludington ............. 51
Mecosta...........Big Rapids............. 49
Menominee .....Menominee ........... 41
Midland...........Midland................. 42
Missaukee .......Lake City .............. 28
Monroe............Monroe .................. 38
Montcalm........Stanton.................. 8
Montmorency .Atlanta .................. 26
Muskegon .......Muskegon.............. 14
Newaygo .........White Cloud.......... 27
Oakland ..........Pontiac .................. 6
Oceana ............Hart....................... 27
Ogemaw ..........West Branch.......... 34
Ontonagon......Ontonagon ............ 32
Osceola............Reed City .............. 49
Oscoda.............Mio......................... 23
Otsego .............Gaylord.................. 46
Ottawa ............Grand Haven ........ 20
Presque Isle....Rogers City ........... 26
Roscommon ....Roscommon........... 34
Saginaw...........Saginaw................. 10
St. Clair ..........Port Huron ........... 31
St. Joseph .......Centreville............. 45
Sanilac.............Sandusky............... 24
Schoolcraft......Manistique ............ 11
Shiawassee......Corunna ................ 35
Tuscola............Caro....................... 54
Van Buren.......Paw Paw................ 36
Washtenaw......Ann Arbor............. 22
Wayne..............Detroit................... 3
Wexford...........Cadillac.................. 28
xxi
TABLE OF CASES REPORTED
(Lines set in small type refer to orders entered in cases starting at page 851,
and to special orders starting at page 1201.)
P
AGE
A
AFSCME Local 25 v Wayne County .................................... 899
AFT Michigan v State of Michigan ...................................... 884
AM Rodriguez Associates, Inc v City Council of the City
of the Village of Douglas .................................................. 951
AO Smith, McFadden v ......................................................... 971
Aberdeen of Brighton, LLC v City of Brighton .................. 942
Abernathy, LaSalle Bank Midwest, NA v ............................ 940
Abraham, Lamphiere v ......................................................... 1021
Acquaah, People v ................................................................. 952
Adair v Court of Appeals ...................................................... 882
Adam, People v ...................................................................... 892
Adams, People v (Chad) ........................................................ 894
Adams, People v (Terry) ....................................................... 894
Adams/Crigler Minors, In re ................................................. 932
Addison Twp v Barnhart ...................................................... 860
Ader v Delta College Bd of Trustees ................................... 887
Advance Steel Co v Oilfield Pipe & Supply, Inc .................. 897
Advantage Health Physicians, PC, Detary v ....................... 970
Ahepa 371 II, Inc, Koss v ...................................................... 866
Aikens, People v ..................................................................... 920
Akhmedov, People v ............................................................... 920
Al-Shara, People v ................................................................. 870
xxiii
P
AGE
Albert Trostel & Sons Co, Sulowska v ................................ 897
Alcaraz, People v ................................................................... 955
Alexander v Cassidy .............................................................. 955
Alexander, People v (Antonio) .............................................. 921
Alexander, People v (Delbridge) ........................................... 954
Alexander, People v (Jumar) ................................................. 870
Alford, People v ..................................................................... 856
Alger Correctional Facility Warden, Coates v ..................... 929
Allen, Bonner v ...................................................................... 898
Allen, Cabala v ....................................................................... 959
Allen, People v (Anthony) ..................................................... 953
Allen, People v (Bernard) ...................................................... 892
Allen, People v (Christopher) ............................................... 939
Allen, People v (Kevin) .......................................................... 854
Allen, People v (Ronald) ....................................................... 955
Allen, People v (Ronald Lee) ................................................ 973
Allen, People v (Spencer) ...................................................... 969
Allingham Corp, People v ..................................................... 939
Allison, People v .................................................................... 968
Allor v DeClark ...................................................................... 928
Allstate Ins Co, Rambin v ..................................................... 973
Allstate Ins Co, Westfield Ins Co v ...................................... 894
Allyn, Desai v ......................................................................... 932
Almond, People v ................................................................... 895
Almutawa v Meyers ............................................................... 916
American Associates, Inc, Wendy Sabo & Associates, Inc v .. 970
American Fellowship Mutual Ins Co, EMC Mortgage
Corp v ................................................................................ 969
Amerisure Ins Co v Debruyn Produce Co ........................... 953
Amersey, People v .................................................................. 857
Anderson, People v (Eric) ..................................................... 967
Anderson, People v (Michael) ............................................... 955
Anderson v Thompson .......................................................... 869
Andrie, Inc v Dep’t of Treasury .................................... 900, 901
Ankney, People v .................................................................... 892
Application of Consumers Energy Co to Increase Rates,
In re ................................................................................... 971
Application of International Transmission Co for
Expedited Siting Certificate, In re .................................. 947
xxiv 493 M
ICH
R
EPORTS
P
AGE
Application of The Detroit Edison Co to Increase Rates,
In re ................................................................................... 950
Aquilina v Fifth Third Bank ................................................ 864
Archie v Citimortgage ........................................................... 856
Arenac County Treasurer, Arenac Property I v .................. 856
Arenac Property I v Arenac County Treasurer .................. 856
Arends, Mooney v .................................................................. 870
Armijo, People v ..................................................................... 864
Armstrong, People v .............................................................. 923
Arnett, People v ..................................................................... 940
Arthur, People v .............................................................. 898, 935
Ascension Health, Inc, Sharma v ......................................... 893
Ashenhurst-Gallina, People v ............................................... 956
Ashford, People v ................................................................... 954
Atchison, People v ................................................................. 869
Atkins v Suburban Mobility Auth for Regional
Transportation .................................................................. 877
Attorney Fees of Atchinson & Hartman, In re (People v
Merriman) ......................................................................... 865
Attorney General v Civil Service Comm ............................. 974
Attorney General v Public Service Comm ........................... 946
Attorney Grievance Comm, Ballard v ........................... 872, 943
Attorney Grievance Comm, Botimer v ................................ 942
Attorney Grievance Comm, Burgess v ................................. 971
Attorney Grievance Comm, Carlson v ................................. 956
Attorney Grievance Comm, Chapman v .............................. 858
Attorney Grievance Comm, DeVaney v ............................... 930
Attorney Grievance Comm, Ghannam v ............................. 858
Attorney Grievance Comm, Hammonds v ........................... 858
Attorney Grievance Comm, Hope-Jackson v ....................... 898
Attorney Grievance Comm, Houston v ................................ 872
Attorney Grievance Comm, Lane v ...................................... 956
Auburn Hills (City of), MISS DIG System, Inc v ............... 870
August v August .................................................................... 968
Aurora Loan Services, LLC, Saad v ..................................... 938
Austin, In re ........................................................................... 926
Auto Club Group Ins Co, Converse v ............................ 877, 942
Auto Club Ins Ass’n v Frankenmuth Mutual Ins Co ......... 956
Auto Club Ins Ass’n, Hardrick v .......................................... 867
T
ABLE OF
C
ASES
R
EPORTED
xxv
P
AGE
Auto Owners Ins Co, Bronson Methodist Hospital v .. 866, 880
Auto-Owners Ins Co, Dezaak Management, Inc v .............. 954
Auto-Owners Ins Co, Titan Ins Co v ................................... 873
Auto-Owners Ins Co, Wyoming Chiropractic Health
Clinic v ............................................................................... 930
Automobile Club of Michigan, Baker v ............................... 882
Awad v General Motors Acceptance Corp ........................... 905
B
BP Products North America Inc v Dep’t of
Environmental Quality .................................................... 938
BP1, LLC v DDR Corp .......................................................... 971
Babbitt’s Sport Center, LLC, Community Shores Bank v ..... 919
Babiarz v Leslie ..................................................................... 862
Bacon, People v ...................................................................... 922
Bailey, People v ...................................................................... 930
Baker v Automobile Club of Michigan ................................ 882
Baker, People v (Dannie) ...................................................... 894
Baker, People v (Todd) .......................................................... 857
Baker, People v (Todd) .......................................................... 857
Bakri v Mortgage Electronic Registration System ............. 954
Bald Mountain West, Jacob v ............................................... 937
Ball, People v (Amanda) ........................................................ 878
Ball, People v (Eric) .............................................................. 897
Ballard v Attorney Grievance Comm ............................ 872, 943
Ballerini v Dep’t of Corrections ........................................... 956
Bally Total Fitness of the Midwest, Inc, Bonner v ............. 938
Bancroft, People v ................................................................. 929
Bank of America, Rodriguez v .............................................. 902
Banks, People v ...................................................................... 922
Banks/Kimble, In re .............................................................. 961
Bard, People v ........................................................................ 970
Barnes, People v (Jeffery) ..................................................... 970
Barnes, People v (Tracy) ....................................................... 890
Barnhard, People v ................................................................ 894
Barnhart, Addison Twp v ..................................................... 860
Barrett, Hoffman v .................................................. 866, 925, 964
Barry County Treasurer v Klinge ........................................ 937
Bartley, People v .................................................................... 953
xxvi 493 M
ICH
R
EPORTS
P
AGE
Bartulio, People v .................................................................. 892
Barylski, People v .................................................................. 954
Bass, People v ........................................................................ 969
Basso, People v ...................................................................... 855
Bastien, People v ................................................................... 921
Bates, People v ....................................................................... 891
Baxter v Geurink ................................................................... 924
Beaber, International Transmission Co v ............................ 854
Bearden, People v .................................................................. 857
Bedford v Rogers ................................................................... 858
Belcher, People v .................................................................... 891
Bell v Dep’t of Human Services ........................................... 970
Bell v Dep’t of Natural Resources ....................................... 974
Bell, People v (Brandon) ....................................................... 952
Bell, People v (Clois) ............................................................. 855
Bell, People v (Devon) .................................................... 870, 943
Bell, People v (Edmund) ....................................................... 895
Bell, People v (Joie) ............................................................... 930
Bell, People v (Reginald) ....................................................... 893
Bell-Cook, People v ................................................................ 954
Beltowski, People v ................................................................ 968
Bennett, People v (Ellery) ..................................................... 952
Bennett, People v (Jimmy) ................................................... 928
Bennett, People v (Neil) ........................................................ 921
Bentley, People v (Bryant) ..................................................... 969
Bentley, People v (Damon)..................................................... 967
Benton, People v .................................................................... 953
Betts, People v ....................................................................... 870
Beverley, People v .................................................................. 881
Bijarro, People v .................................................................... 952
Birge, People v ....................................................................... 953
Biskner, People v ................................................................... 895
Bivins, People v ..................................................................... 954
Blackburn v Grenquist .......................................................... 956
Blackburn, Mayor of the City of Cadillac v ......................... 889
Blackshere, People v .............................................................. 891
Blackwell, People v ................................................................ 919
Blair Twp, Cherryland Electric Cooperative v ............. 884, 949
Blake, People v ...................................................................... 952
T
ABLE OF
C
ASES
R
EPORTED
xxvii
P
AGE
Blankenship, People v ..................................................... 918, 957
Blanks, People v .................................................................... 919
Blaser v Devries ..................................................................... 854
Bleich, Yergeau v ................................................................... 861
Bloomfield Hills (City of) v Froling ..................................... 938
Bloomfield Hills School Dist, Fellin v .................................. 891
Bloomfield Hills School Dist, Mushovic v ........................... 891
Blue Cross & Blue Shield of Michigan, Calhoun County v ... 917
Board of Manistee County Rd Comm’rs, Hagerty v ........... 933
Boertmann v Cincinnati Ins Co ..................................... 898, 963
Bogard, People v (Steve) ....................................................... 940
Bogard, People v (Villard) ..................................................... 893
Bonner v Allen ....................................................................... 898
Bonner v Bally Total Fitness of the Midwest, Inc .............. 938
Bonner, City of Brighton v ................................................... 902
Bonsu v Ocwen Loan Servicing, LLC .................................. 955
Booker, Kenney v ............................................................ 851, 927
Booker, People v ..................................................................... 897
Boone, People v ...................................................................... 897
Bopp, People v ....................................................................... 939
Borkowski, People v .............................................................. 931
Bostick, People v .................................................................... 896
Botimer v Attorney Grievance Comm ................................. 942
Botsford Continuing Care Corp, Haslip v ........................... 945
Boudreau, Lemon v ............................................................... 952
Bowdry, People v .................................................................... 921
Bowers, People v ............................................................. 869, 931
Boyett, People v ..................................................................... 890
Boykin, People v .................................................................... 868
Boyne USA, Inc, Marshall v ................................................. 901
Bradley Estate, In re ............................................................. 866
Bragg, People v ...................................................................... 897
Brame, People v ..................................................................... 872
Brantley, People v ........................................................... 877, 943
Brasher, People v ................................................................... 895
Breard v Employment Group, Inc ....................................... 971
Brickman, Harkness v .......................................................... 970
Bridgeforth, People v ............................................................. 938
Bridges, People v ................................................................... 871
xxviii 493 M
ICH
R
EPORTS
P
AGE
Briggs, People v ..................................................................... 917
Brighton (City of), Aberdeen of Brighton, LLC v ............... 942
Brighton (City of) v Bonner ................................................. 902
Brittain, Grosse Ile Twp v .................................................... 866
Brockitt, In re ........................................................................ 1022
Bronson Methodist Hospital v Auto Owners Ins Co ... 866, 880
Bronson Methodist Hospital v Home-Owners Ins Co ........ 880
Bronson Methodist Hospital v Michigan Assigned Claims
Plan .................................................................................... 939
Bronson Methodist Hospital v Progressive Michigan Ins
Co ....................................................................................... 939
Brooks, People v .................................................................... 955
Broughton, People v .............................................................. 871
Brown v Governor (In re Executive Message of the
Governor) .......................................................................... 905
Brown v Home-Owners Ins Co ............................................. 970
Brown, People v (Charles) .................................................... 872
Brown, People v (Donna) ...................................................... 968
Brown, People v (Jason) ....................................................... 929
Brown, People v (Matthew) .................................................. 857
Brown, People v (Rashod) ..................................................... 891
Brown, People v (Robert) ...................................................... 919
Brown, People v (Ryan) ........................................................ 939
Brown, People v (William Bedford) ...................................... 869
Brown, People v (William Jessie) ......................................... 954
Brown v Summerfield Twp ................................................... 939
Brownell, People v ................................................................. 856
Browning, People v ................................................................ 870
Bryant, People v .................................................................... 892
Buchanan v Walters .............................................................. 930
Buck, People v ....................................................................... 928
Buckner, People v .................................................................. 881
Buggs, People v ...................................................................... 892
Buhalis v Trinity Continuing Care Services ....................... 901
Buley, People v ....................................................................... 928
Bullock, People v ................................................................... 893
Burgess v Attorney Grievance Comm .................................. 971
Burgler v Snow ...................................................................... 869
Buriel, People v ...................................................................... 938
T
ABLE OF
C
ASES
R
EPORTED
xxix
P
AGE
Burke, People v ............................................................... 918, 957
Burnett, People v ................................................................... 868
Burnette, People v ................................................................. 955
Burns, People v (David) ........................................................ 879
Burns, People v (Douglas) .................................................... 941
Burns-Perry, People v ............................................................ 917
Burnside v Genesee Circuit Judge ....................................... 898
Burr, People v ........................................................................ 893
Burrell, People v .................................................................... 968
Burris v KAM Transport, Inc ............................................... 873
Burton, People v .................................................................... 952
Burton (City of), Whitman v .............................. 303
Bush, People v ....................................................................... 954
Buss, People v ........................................................................ 891
Byars, People v ...................................................................... 858
Bylsma, People v .................................................. 17
Bynum, People v .................................................................... 877
Byrd, People v ........................................................................ 920
Byron Twp, VMG, Inc v ........................................................ 895
C
CBS Outdoor, Inc, Dep’t of Transportation v ..................... 852
CCXLS, LLC v Dep’t of Treasury ........................................ 968
CF Fick & Sons, Inc, Hazelton v ......................................... 953
CJ’s Excavating, Inc v City of Frankfort ............................ 955
CM Transportation, Inc, Vucaj v .......................................... 922
Cabala v Allen ........................................................................ 959
Caldwell, People v .................................................................. 952
Calhoun County v Blue Cross & Blue Shield of Michigan .... 917
Callison v Hatzel & Buehler, Inc ......................................... 918
Calvin, People v ..................................................................... 870
Camel, People v ..................................................................... 920
Cameron, People v ................................................................. 895
Camp Retreats Foundation, Inc v Marathon Twp ............. 946
Canada, People v ................................................................... 857
Cannon, People v ................................................................... 967
Canton Charter Twp v Polk ................................................. 894
Capital One Bank v Green ................................................... 928
Cardenas-Borbon, People v ................................................... 939
xxx 493 M
ICH
R
EPORTS
P
AGE
Carlson v Attorney Grievance Comm .................................. 956
Carlson, Horseshoe Lake Corp v .......................................... 929
Carlson, People v ................................................................... 869
Carpenter, People v (Brian) .................................................. 868
Carpenter, People v (Darrell) ................................................ 955
Carr, People v (Leondre) ....................................................... 953
Carr, People v (Trent) ........................................................... 868
Carroll, In re .......................................................................... 899
Carroll, People v .................................................................... 930
Carson City Correctional Facility Warden, Clark v ............ 956
Carter, People v (Drew) ......................................................... 856
Carter, People v (Keith) ........................................................ 869
Carter, People v (Richard) .................................................... 894
Cary, People v ........................................................................ 946
Casanave, People v ................................................................ 855
Cassidy, Alexander v .............................................................. 955
Causley, People v ................................................................... 892
Cavin, People v ...................................................................... 968
Certainteed Corp, David Conrad, DDS v ............................. 950
Certified Question from the United States Dist
Court for the Western Dist of Michigan, In re
(Mattison v Social Security Comm’r) ................ 70
Certified Question from the United States Dist Court for
the Western Dist of Michigan, In re (Mattison v Social
Security Comm’r) ................................................................... 853
Chaddah, In re ....................................................................... 954
Chakkour v Chakkour ................................................... 946, 966
Chakkour, People v ................................................................ 961
Chamberlain v Messer .......................................................... 869
Chandler, People v ................................................................. 856
Chapman v Attorney Grievance Comm ............................... 858
Chapman, People v (David) .................................................. 942
Chapman, People v (Winslow) .............................................. 868
Charter Twp of Royal Oak, NWD, LLC v ........................... 970
Chen, People v ................................................................. 866, 922
Cherryland Electric Cooperative v Blair Twp .............. 884, 949
Cherryland Electric Cooperative v East Bay Twp .............. 884
Cherryland Electric Cooperative v Garfield Twp ............... 884
Cherryland Mall Ltd Partnership, Wells Fargo Bank v ..... 859
T
ABLE OF
C
ASES
R
EPORTED
xxxi
P
AGE
Cherrywood Lodge, Inc, Sabatos v ....................................... 972
Childress, People v .......................................................... 858, 893
Childs, People v ..................................................................... 859
Chinn, People v ...................................................................... 891
Chippewa Correctional Facility Warden, McClinton v ....... 893
Chorazyczewski, People v ..................................................... 954
Christian, People v ................................................................ 897
Chrysler Financial Services Americas, LLC v Dep’t of
Treasury ...................................................................... 866, 919
Cincinnati Ins Co, Boertmann v .................................... 898, 963
Citimortgage, Archie v .......................................................... 856
CitiMortgage, Inc, Elhady v .................................................. 897
Citizens Ins Co of America v Professional Temperature
Heating & Air Conditioning, Inc ..................................... 954
Citizens Ins Co of America, Constantino v ......................... 852
Citizens Ins Co of America, Envision Builders, Inc v ........ 929
Citizens Ins Co of America, Kokas v ................................... 930
Citizens Ins Co of America, Merlo Construction Co,
Inc v ................................................................................... 940
Citizens Ins Co of America, Nicholson v ............................. 880
City Council of the City of the Village of Douglas, AM
Rodriguez Associates, Inc v ............................................. 951
City of Auburn Hills, MISS DIG System, Inc v .................. 870
City of Bloomfield Hills v Froling ........................................ 938
City of Brighton, Aberdeen of Brighton, LLC v ................. 942
City of Brighton v Bonner .................................................... 902
City of Burton, Whitman v ................................. 303
City of Dearborn v Mattison ................................................ 861
City of Detroit, Hyde Park Cooperative v ........................... 966
City of Ecorse, City of River Rouge v .................................. 929
City of Flint, Davis v ............................................................. 918
City of Flint, Halford v ......................................................... 922
City of Flint, Kincaid v ......................................................... 871
City of Flint, Landon v ......................................................... 951
City of Frankfort, CJ’s Excavating, Inc v ........................... 955
City of Howell, McPherson Mansion LLC v ........................ 953
City of Huntington Woods v Orchard, Hiltz &
McCliment, Inc ................................................................. 905
xxxii 493 M
ICH
R
EPORTS
P
AGE
City of Lansing, Speelman v ................................................. 974
City of River Rouge v City of Ecorse ................................... 929
City of Romulus, Orco Investments, Inc v .......................... 928
City of Romulus v Wayne County ........................................ 856
City of South Lyon, South Lyon Woods Associates, LLC v ... 953
City of Southfield v Rhodes .................................................. 893
City of Wyoming, Ter Beek v ............................................... 957
Civil Service Comm, Attorney General v ............................ 974
Civil Service Comm, Marble v .............................................. 861
Clardy, People v ..................................................................... 919
Clark v Carson City Correctional Facility Warden ............. 956
Clark v Meitzner ................................................................... 920
Clark, People v ....................................................................... 917
Clausell, People v ................................................................... 870
Clear Choice Communication, Inc, Wireless Toyz
Franchise, LLC v .............................................................. 933
Clifton v Johnson .................................................................. 877
Cloud, People v ...................................................................... 928
Coates v Alger Correctional Facility Warden ...................... 929
Coatsworth, People v ............................................................. 920
Coca Cola Co, Herron-Burgess v .......................................... 940
Coca-Cola Enterprises, Scharnitzke v ................................. 947
Coddington, People v ............................................................. 919
Coffin, People v ...................................................................... 868
Cole, People v (Duncan) ........................................................ 857
Cole, People v (Jimmy) ......................................................... 855
Cole, People v (Richmond) .................................................... 857
Coleman, People v (Daniel) ................................................... 941
Coleman, People v (Derrick) ................................................. 922
College Park Partners, LLC, 7800 W Outer Rd Holding,
LLC v ................................................................................. 967
Colson, People v ..................................................................... 870
Comcast Entertainment Group, Gary v .............................. 920
Comella, People v .................................................................. 905
Command Officers Ass’n of Michigan v Shelby Twp ......... 861
Community Shores Bank v Babbitt’s Sport Center, LLC ...... 919
Comstock, People v ................................................................ 920
Conservatorship of Cisneros, In re ...................................... 899
Constantino v Citizens Ins Co of America .......................... 852
T
ABLE OF
C
ASES
R
EPORTED
xxxiii
P
AGE
Consumers Energy Co, Hoffman v ...................................... 906
Consumers Energy Co, Raszkowski v .................................. 944
Converse v Auto Club Group Ins Co ............................. 877, 942
Cook, People v ........................................................................ 891
Cooper, People v (Elrick) ....................................................... 917
Cooper, People v (Steven) ..................................................... 917
Cooper, People v (Wendell) .................................................... 871
Cornelius, People v ................................................................ 951
Cornwell, People v ................................................................. 937
Corrections (Dep’t of), Ballerini v ........................................ 956
Corrections (Dep’t of), Green v ............................................ 951
Corrections (Dep’t of), McCreary v ...................................... 894
Corrections (Dep’t of), Parks v ............................................. 925
Corrion, People v ................................................................... 856
Countrywide Home Loans, Inc v Peoples Choice Home
Loan, Inc ........................................................................... 854
County of Mason v Indian Summer Cooperative, Inc ........ 973
Court of Appeals, Adair v ..................................................... 882
Cousins, People v ................................................................... 871
Cox v Huron-Clinton Metropolitan Authority .................... 943
Crabtree, People v ................................................................. 878
Craighead, People v ........................................................ 867, 931
Crane v Director of Assessing for the Charter Twp of
West Bloomfield ................................................................ 951
Crawford, People v ................................................................ 920
Crenshaw, People v ................................................................ 920
Croff, People v ........................................................................ 905
Cromer v Warden, Baraga Correctional Facility ................. 967
Crowell, People v ................................................................... 937
Crowley, Pugh v ..................................................................... 858
Crump, People v .............................................................. 892, 943
Cruz-Rivera, People v ............................................................ 879
Crysler, People v .................................................................... 859
Culberson, People v ............................................................... 890
Culhane, People v .................................................................. 968
Cullens, People v ................................................................... 919
Cummings v Lewis .......................................................... 902, 932
Cummings, People v .............................................................. 881
Cunningham, People v .......................................................... 869
xxxiv 493 M
ICH
R
EPORTS
P
AGE
Currie, People v ............................................................... 868, 931
Curry, People v (DeMarcus) .................................................. 969
Curry, People v (Erick) .......................................................... 965
Curry, People v (Jeffrey) ....................................................... 893
Curry-Howard, People v ........................................................ 857
Curtiss v Menard, Inc ........................................................... 949
Cutler-Ferro, People v ........................................................... 896
D
DAN Joint Venture III, LP v Hofmeister ............................ 937
DDR Corp, BP1, LLC v ......................................................... 971
D’Agostini, Harkins v ........................................................... 880
Dancy, People v ...................................................................... 895
Daniel v Public Storage Inc ........................................... 871, 944
Daniels, People v ................................................................... 955
Danou Technical Park, Fifth Third Bank v ........................ 857
Dantzler, People v ........................................................... 918, 971
David, People v ...................................................................... 869
David Conrad, DDS v Certainteed Corp .............................. 950
Davis v City of Flint .............................................................. 918
Davis v Emergency Financial Manager for the Detroit
Public Schools ................................................................... 925
Davis v Gulleckson ................................................................ 969
Davis v Parker ....................................................................... 867
Davis, People v (Anthony) .................................................... 871
Davis, People v (Detrick) ...................................................... 971
Davis, People v (Jeffrey) ....................................................... 873
Davis, People v (Tarranisha) ................................................ 917
Dawson, People v (Tabatha) ................................................. 930
Dawson, People v (Terrance) ................................................ 895
Dean, People v (Fletcher) ..................................................... 921
Dean, People v (Isadore) ................................................. 881, 930
Dearborn (City of) v Mattison .............................................. 861
Debano-Griffin v Lake County ........................... 167
DeBerry, People v .................................................................. 893
Debruyn Produce Co, Amerisure Ins Co v .......................... 953
DeClark, Allor v ..................................................................... 928
DeJonge, People v .................................................................. 928
Deleon, People v .................................................................... 857
T
ABLE OF
C
ASES
R
EPORTED
xxxv
P
AGE
Delpiano, People v ................................................................. 967
Delta College Bd of Trustees, Ader v .................................. 887
DeMeyer v Sheets .................................................................. 871
Dep’t of Corrections, Ballerini v .......................................... 956
Dep’t of Corrections, Green v .............................................. 951
Dep’t of Corrections, McCreary v ........................................ 894
Dep’t of Corrections, Parks v ............................................... 925
Dep’t of Environmental Quality, BP Products North
America Inc v .................................................................... 938
Dep’t of Human Services, Bell v .......................................... 970
Dep’t of Human Services Director, Smith v .......... 853, 926, 947
Dep’t of Natural Resources, Bell v ...................................... 974
Dep’t of Transportation v CBS Outdoor, Inc ...................... 852
Dep’t of Transportation, Detroit International Bridge
Co v ........................................................................................... 852
Dep’t of Treasury, Andrie, Inc v .................................... 900, 901
Dep’t of Treasury, CCXLS, LLC v ........................................ 968
Dep’t of Treasury, Chrysler Financial Services Americas,
LLC v .......................................................................... 866, 919
Dep’t of Treasury, Eastbrook Homes, Inc v ................. 882, 931
Dep’t of Treasury, Fradco, Inc v .......................................... 948
Dep’t of Treasury, Huzella v ................................................ 865
Dep’t of Treasury, Krueger v ................................................ 917
Dep’t of Treasury, Malpass v ................................................ 864
Dep’t of Treasury, SMK, LLC v ........................................... 948
Dep’t of Treasury, TMW Enterprises, Inc v ........................ 952
Dep’t of Treasury, Thomas v ................................................ 920
Dep’t of Treasury, Wheeler Estate v .................................... 865
Dep’t of Treasury, Wheeler v ................................................ 865
Dep’t of Treasury, Wright v .................................................. 865
Desai v Allyn .......................................................................... 932
Desmyther, People v .............................................................. 952
Detary v Advantage Health Physicians, PC ........................ 970
Detroit (City of), Hyde Park Cooperative v ......................... 966
Detroit International Bridge Co v Dep’t of Transportation .. 852
DeVaney v Attorney Grievance Comm ................................ 930
Devries, Blaser v .................................................................... 854
Dezaak Management, Inc v Auto-Owners Ins Co ............... 954
Diaz, People v ........................................................................ 921
xxxvi 493 M
ICH
R
EPORTS
P
AGE
Dickerson, People v ............................................................... 940
Dinardo, Rugiero v ................................................................ 957
Director of Assessing for the Charter Twp of West
Bloomfield, Crane v .......................................................... 951
Disney, People v ..................................................................... 858
Dixon, International Transmission Co v ............................. 854
Dixon, People v (Carl) ........................................................... 868
Dixon, People v (Hamin) ....................................................... 867
Dixon, People v (Lamont) ..................................................... 868
Dixon, People v (Marcael) ..................................................... 971
Dobbs, People v ...................................................................... 952
Donald E Massey Revocable Trust Dated December 13,
2001, In re ......................................................................... 928
Donaldson, People v .............................................................. 896
Dorsey, People v ..................................................................... 857
Dosenberry, People v ............................................................. 869
Dothard, People v .................................................................. 918
Dotson, People v .................................................................... 868
Douglas, People v (Jeffery) ................................................... 876
Douglas, People v (Ronald) ................................................... 894
Douglas, People v (Todd) ...................................................... 861
Douglas Estate, In re ............................................................ 928
Downs, Home-Owners Ins Co v ........................................... 925
Drake, People v ...................................................................... 919
Duenas, Rodenhiser v ........................................................... 856
Duffield v Suburban Mobility Auth for Regional
Transportation .................................................................. 866
Dufresne, People v ................................................................. 868
Duncan, In re ......................................................................... 860
Duncan, People v (Michael) .................................................. 921
Duncan, People v (Stanley) ............................................ 867, 926
Duncan, People v (Vita) .................................................. 867, 926
Dunigan, People v .................................................................. 869
Dunn, People v ....................................................................... 898
Dunn v West Shoreline Correctional Facility Warden ........ 951
Durham, People v .................................................................. 856
Dusseau, People v .................................................................. 871
Dutterer, People v .................................................................. 896
Dwyer, People v ..................................................................... 896
T
ABLE OF
C
ASES
R
EPORTED
xxxvii
P
AGE
Dykes v Singh ........................................................................ 939
E
E T MacKenzie Co v RBS Construction, Inc ...................... 872
EMC Mortgage Corp v American Fellowship Mutual Ins
Co ....................................................................................... 969
ET4, Inc, Holmes v ............................................................... 935
Earl, People v ......................................................................... 945
Earls, People v ....................................................................... 897
East Bay Twp, Cherryland Electric Cooperative v ............. 884
Eastbrook Homes, Inc v Dep’t of Treasury .................. 882, 931
Eaton Corp Torque Controls, Smith v ................................. 942
Ebrahimi, People v ................................................................ 877
Eby, People v .......................................................................... 891
Echols, People v ..................................................................... 918
Eckford, People v ................................................................... 855
Ecorse (City of), City of River Rouge v ............................... 929
Edwards, People v (Andre) ............................................. 881, 931
Edwards, People v (Kenneth) ............................................... 919
Eisen, People v ....................................................................... 918
Eison, People v ....................................................................... 941
El-Sayed v Mehsen Garmo, Royse, Inc ................................ 954
Elba Twp v Gratiot County Drain Comm’r ...... 265
Eleanor V Mirek Trust, In re ............................................... 929
Elhady v CitiMortgage, Inc ................................................... 897
Elie, People v ......................................................................... 858
Elizondo, People v ................................................................. 895
Elledge, People v .................................................................... 919
Ellis, People v (Obar) ...................................................... 920, 957
Ellis, People v (Zachary) ....................................................... 896
Elmore, People v .................................................................... 955
Emergency Financial Manager for the Detroit Public
Schools, Davis v ................................................................ 925
Emery, People v ..................................................................... 952
Emory, People v ..................................................................... 877
Employment Group, Inc, Breard v ...................................... 971
Engelhardt v St John Health System-Detroit-Macomb
Campus .............................................................................. 958
xxxviii 493 M
ICH
R
EPORTS
P
AGE
English, People v ................................................................... 927
Environmental Quality (Dep’t of), BP Products North
America Inc v .................................................................... 938
Envision Builders, Inc v Citizens Ins Co of America ......... 929
Erie Ins Exch v Lake City Industrial Products, Inc .......... 935
Esbaugh, People v ................................................................. 896
Etchie, People v ..................................................................... 865
Evans, People v ...................................................................... 959
Evans v Redwood Dental Group .......................................... 920
EverHome Mortgage Co, Paige v ......................................... 951
Everett, People v ................................................................... 918
Executive Message of the Governor, In re (Brown v
Governor) .......................................................................... 905
F
Fairley, People v (Harvey) ..................................................... 855
Fairley, People v (Lewis) ....................................................... 894
Family Medicine Associates of Midland, Zunich v .............. 893
Farmers Ins Exch, Lee v ....................................................... 945
Farmers Ins Exch v Michigan Insurance Co ....................... 1015
Farmington Public Schools, Greenstein v ........................... 932
Farnen, People v .................................................................... 872
Federal National Mortgage Ass’n v Maple Pointe
Condominium Ass’n ......................................................... 940
Fellin v Bloomfield Hills School Dist ................................... 891
Ferrell, People v ..................................................................... 918
Ferrous Processing & Trading Co, Torres v ....................... 941
Fields, People v (Timothy) .................................................... 882
Fields, People v (Willie) ........................................................ 892
Fifth Third Bank, Aquilina v ............................................... 864
Fifth Third Bank v Danou Technical Park ......................... 857
Fifth Third Bank, Sallie v .................................................... 871
Fifth Third Mortgage-MI, LLC v Hance ............................. 862
Findling v Kloian ................................................................... 929
First American Title Ins Co, Huntington National Bank v .. 905
First of America Bank, Graham v ....................................... 941
Fizer, People v ........................................................................ 896
Flemming, People v ............................................................... 891
Flint (City of), Davis v .......................................................... 918
T
ABLE OF
C
ASES
R
EPORTED
xxxix
P
AGE
Flint (City of), Halford v ....................................................... 922
Flint (City of), Kincaid v ....................................................... 871
Flint (City of), Landon v ....................................................... 951
Florence, People v .................................................................. 870
Flores, People v ...................................................................... 918
Ford Motor Co, Vrooman v ................................................... 942
Foremost Ins Co, Ile v .................................................... 915, 964
Forfeiture of Bail Bond, In re (People v Gaston) ................ 936
Forgeon, People v .................................................................. 917
Foster, People v ...................................................................... 893
Fradco, Inc v Dep’t of Treasury ........................................... 948
Frankenmuth Mutual Ins Co, Auto Club Ins Ass’n v ............ 956
Frankfort (City of), CJ’s Excavating, Inc v ......................... 955
Franklin, People v ........................................................... 897, 944
Frederick, People v (Christa) ................................................ 918
Frederick, People v (Myles) .................................................. 951
Freeman, People v (Joseph Delvert) .................................... 970
Freeman, People v (Joseph Erby) ........................................ 918
Fremont Ins Co v Izenbaard ................................................ 859
French, People v .................................................................... 930
Friedman, People v ................................................................ 869
Frisby, People v ...................................................................... 892
Fritz, People v ........................................................................ 941
Froling, City of Bloomfield Hills v ....................................... 938
Fryer, People v ....................................................................... 939
Furman, People v .................................................................. 940
G
GE Money Bank v Haddad ................................................... 872
GMAC Mortgage, LLC, Roach v ........................................... 966
Gaines, People v .................................................................... 858
Gansen v Phillips .................................................................. 854
Gantt, People v ...................................................................... 868
Gardner, People v (Chester) ................................................. 955
Gardner, People v (Ronald) ................................................... 941
Garfield Twp, Cherryland Electric Cooperative v .............. 884
Garland v Hartman & Tyner, Inc ........................................ 958
Garrett, People v ................................................................... 949
Garrison, People v ................................................................. 1015
xl 493 M
ICH
R
EPORTS
P
AGE
Gary v Comcast Entertainment Group ............................... 920
Gaskill, People v .................................................................... 894
Gaston, People v (In re Forfeiture of Bail Bond) ................ 936
Gatiss, People v ..................................................................... 892
Geico General Ins Co, Walker v ........................................... 941
Geierman, People v ............................................................... 934
General Motors Acceptance Corp, Awad v .......................... 905
General Motors Europe, US Motors v .......................... 866, 931
Genesee Circuit Judge, Burnside v ...................................... 898
Gentry, People v ..................................................................... 930
Gentry v Wayne County Deputy Sheriff .............................. 872
George, People v .................................................................... 938
George W Smith & Co, PC, Ruby & Associates v ............... 854
Gerencer, People v ................................................................. 940
Geroco Tech Holding Corp, Lowry Holding Co, Inc v ........ 870
Geurink, Baxter v .................................................................. 924
Ghannam v Attorney Grievance Comm .............................. 858
Giddis, People v ............................................................... 897, 944
Giles, People v ........................................................................ 857
Gillen, People v ...................................................................... 857
Gilmore, People v .................................................................. 859
Gioglio, People v .................................................................... 864
Gladish, People v ................................................................... 918
Glover, People v ..................................................................... 857
Godboldo-Hakim, In re ......................................................... 854
Goike, People v ...................................................................... 969
Goldberg v Wlezniak ............................................................. 929
Goldie, In re ..................................................................... 902, 945
Gonser, People v .................................................................... 901
Gonzales v Gonzales .............................................................. 938
Gonzales, People v ................................................................. 893
Gonzalez, People v ................................................................. 969
Gooden, People v ................................................................... 896
Goodenow v Public School Employees’ Retirement Bd ..... 852
Goodman, People v ................................................................ 891
Gordon, People v ................................................................... 917
Gosselin, People v .................................................................. 900
Goudlock, People v ................................................................ 928
Gourd, People v ..................................................................... 925
T
ABLE OF
C
ASES
R
EPORTED
xli
P
AGE
Governor, Brown v (In re Executive Message of the
Governor) ......................................................................... 905
Graham v First of America Bank ........................................ 941
Graham, People v (Donald) .................................................. 892
Graham, People v (Ernest) ................................................... 856
Graham, People v (Scott) ...................................................... 955
Granaas, People v ........................................................... 855, 931
Granderson, People v ............................................................ 896
Grange Ins Co of Michigan v Lawrence .............................. 851
Grant, People v ...................................................................... 900
Grasman, Lindeblad v ........................................................... 953
Gratiot County Drain Comm’r, Elba Twp v ...... 265
Great Expressions Dental Centers, PC,
Sexton-Walker v ............................................................... 901, 956
Great Lakes Casualty Ins Co, Lucio v .......................... 852, 931
Green, Capital One Bank v .................................................. 928
Green v Dep’t of Corrections ............................................... 951
Green, People v ...................................................................... 916
Greenberg, Techner v ............................................................ 897
Greene, People v (Darrius) ............................................. 919, 957
Greene, People v (Loren) ................................................ 916, 917
Greenstein v Farmington Public Schools ............................ 932
Greenville Mfg, LLC v NextEnergy Center ........................ 939
Greer, People v ....................................................................... 868
Gregory, People v ................................................................... 920
Grenquist, Blackburn v ......................................................... 956
Grievance Administrator v Lygizos ............................... 892, 971
Grievance Administrator v Plants ....................................... 880
Grievance Administrator v Widenbaum ........................ 901, 957
Griffin v Griffin ..................................................................... 879
Grisham, People v ................................................................. 855
Grissom, People v .................................................................. 880
Grix, People v ........................................................................ 896
Gross, Trierweiler v .............................................................. 867
Grosse Ile Twp v Brittain ..................................................... 866
Grubbs, People v .................................................................... 953
Guerra, People v .................................................................... 891
Gulleckson, Davis v ............................................................... 969
Gwinn Area Community Schools, Stansky v ...................... 968
xlii 493 M
ICH
R
EPORTS
P
AGE
H
Haddad, GE Money Bank v .................................................. 872
Hagerty v Board of Manistee County Rd Comm’rs ............ 933
Haggarty, People of the City of Troy v ................................ 953
Haire, People v ....................................................................... 895
Hale, People v ........................................................................ 870
Halford v City of Flint .......................................................... 922
Hall, People v (Kareen) ......................................................... 930
Hall, People v (Robert) .......................................................... 968
Hall, People v (Shakeisha) .................................................... 973
Hall, People v (William) .................................................. 898, 971
Hall v Stark Reagan, PC ...................................................... 903
Halperin, VanSlembrouck v ........................................... 902, 943
Hamama, People v ................................................................. 905
Hamilton, People v .......................................................... 882, 931
Hammonds v Attorney Grievance Comm ............................ 858
Hammoud v Hammoud ......................................................... 928
Hamood v Stanowski ............................................................. 969
Hampton, People of the City of Bay City v ......................... 953
Hamtramck Housing Comm, Slomka v ............................... 953
Hance, Fifth Third Mortgage-MI, LLC v ............................. 862
Haney, People v ...................................................................... 954
Hansen, People v ................................................................... 893
Hanserd, People v .................................................................. 952
Hardges, People v .................................................................. 866
Hardrick v Auto Club Ins Ass’n ........................................... 867
Hardy, People v ...................................................................... 898
Harkins v D’Agostini ............................................................ 880
Harkness v Brickman ........................................................... 970
Harriger, People v .................................................................. 868
Harrington, People v ............................................................. 891
Harris, People v (Corey) ....................................................... 917
Harris, People v (Frederick) ................................................. 968
Harris, People v (Gregory) .................................................... 970
Harris, People v (Isaac) ......................................................... 920
Harris, People v (James) ....................................................... 948
Harris, People v (Johnny) ..................................................... 906
Harris, People v (Kymon) ..................................................... 969
Harris, People v (Otto) .......................................................... 892
T
ABLE OF
C
ASES
R
EPORTED
xliii
P
AGE
Harris, People v (Raymond) ........................................... 941, 967
Harrison Charter Twp, 35160 Jefferson Avenue, LLC v ... 938
Hartman & Tyner, Inc, Garland v ....................................... 958
Hartwick, People v ................................................................ 950
Harvey, People v .................................................................... 896
Haslip v Botsford Continuing Care Corp ............................ 945
Hatzel & Buehler, Inc, Callison v ........................................ 918
Hawkins, People v (Cecil) ..................................................... 895
Hawkins, People v (Charles) ................................................. 920
Hawkins, People v (Deandre) ............................................... 969
Hawley, People v .................................................................... 898
Hayes, People v ...................................................................... 895
Haynes, People v (Aaron) ..................................................... 968
Haynes, People v (Maurice) .................................................. 897
Hazelton v CF Fick & Sons, Inc .......................................... 953
Hazlett, Ponte v ..................................................................... 928
Heath, People v ...................................................................... 897
Heisler, People v .................................................................... 890
Henderson, People v ....................................................... 856, 857
Hendricks, People v ............................................................... 970
Hendrix, People v .................................................................. 952
Henley, People v ..................................................................... 925
Henry v Laborers Local 1191 ............................................... 934
Henry Ford Hospital, Hodges v ............................................ 969
Herbert, People v ................................................................... 968
Herron-Burgess v Coca Cola Co ........................................... 940
Herry v Suburban Mobility Auth for Regional
Transportation .................................................................. 870
Hershey, People v .................................................................. 937
Hesley, People v ..................................................................... 869
Hess, People v ........................................................................ 871
Hettinger, People v ................................................................ 882
Heyza, People v ...................................................................... 882
Highers, People v ................................................................... 959
Hill, People v (Kevin)............................................................. 939
Hill, People v (Nayvon) ......................................................... 967
Hill, People v (William) ......................................................... 968
Hillsdale County, Hillsdale County Senior Services
Center, Inc v ...................................................................... 852
xliv 493 M
ICH
R
EPORTS
P
AGE
Hillsdale County Senior Services Center, Inc v Hillsdale
County ............................................................................... 852
Hilton, People v ..................................................................... 971
Hinzman, People v (Aaron) .................................................. 951
Hinzman, People v (Rebecca) ............................................... 951
Hoard, People v ..................................................................... 892
Hobbs, People v ............................................................... 920, 972
Hoch, People v ....................................................................... 919
Hodge v State Farm Mutual Automobile Ins Co ................ 937
Hodges v Henry Ford Hospital ............................................. 969
Hodges, People v .................................................................... 918
Hoffman v Barrett ................................................... 866, 925, 964
Hoffman v Consumers Energy Co ....................................... 906
Hoffner v Lanctoe ................................................................. 852
Hofmeister, DAN Joint Venture III, LP v ........................... 937
Holcomb v Kelly Services, Inc .............................................. 969
Holden, People v .................................................................... 969
Holmes v ET4, Inc ................................................................ 935
Holmes, People v (Jeffrey) .................................................... 891
Holmes, People v (Rod) ......................................................... 895
Holt, People v ......................................................................... 938
Home Depot USA, Inc v State of Michigan ........................ 870
Home-Owners Ins Co, Brown v ............................................ 970
Home-Owners Ins Co v Downs ............................................ 925
Honorable Diane M Hathaway, In re ................................... 956
Honorable Kenneth D Post, In re ........................................ 974
Hood, People v ....................................................................... 871
Hope-Jackson v Attorney Grievance Comm ........................ 898
Hopkins, People v (Eugene) .................................................. 917
Hopkins, People v (Lemont) ................................................. 894
Hopkins, People v (Russell) .................................................. 895
Hopp v Palace Sports & Entertainment .............................. 918
Horn, People v ....................................................................... 897
Horseshoe Lake Corp v Carlson ........................................... 929
Houston v Attorney Grievance Comm ................................. 872
Howard, People v (Anthony) ................................................ 890
Howard, People v (Joseph) ................................................... 921
Howell, People v .................................................................... 893
Howell (City of), McPherson Mansion LLC v ..................... 953
T
ABLE OF
C
ASES
R
EPORTED
xlv
P
AGE
Howmet Corp, Nichols v ....................................................... 890
Howze, People v ..................................................................... 951
Hubel, People v ...................................................................... 893
Huddleston v Trinity Health Michigan ............................... 958
Hudson, People v (David) ..................................................... 900
Hudson, People v (Gerald) .................................................... 970
Hudson, Unit 67, LLC v ....................................................... 940
Hudson Ins Co, Perkovic v ................................................... 971
Huffman, People v ................................................................. 893
Hughes, In re ......................................................................... 906
Hughes, People v ................................................................... 921
Huguely, People v .................................................................. 897
Human Services (Dep’t of), Bell v ....................................... 970
Human Services Director (Dep’t of), Smith v ....... 853, 926, 946
Hunt v Lower Harbor Properties, LLC ............................... 954
Hunt, People v ....................................................................... 857
Hunter, People v (Andre) ...................................................... 1015
Hunter, People v (Larry) ....................................................... 919
Hunter, People v (Willie) ....................................................... 895
Huntington Mortgage, Livingston v .................................... 872
Huntington National Bank v First American Title Ins
Co ....................................................................................... 905
Huntington Woods (City of) v Orchard, Hiltz &
McCliment, Inc ................................................................. 905
Huntmore Estates Condominium Ass’n, Lech v ................ 921
Hurley, MSX International Platform Services, LLC v ....... 905
Hurley Health Services, Radford v ...................................... 941
Huron-Clinton Metropolitan Authority, Cox v .................... 943
Huron Valley Schools, Javorsky v ........................................ 953
Hursey, People v .................................................................... 954
Hurtado-Garcia, People v ...................................................... 869
Huzella v Dep’t of Treasury ................................................. 865
Hyde Park Cooperative v City of Detroit ............................ 966
I
ITC Holdings Corp, Murray v .............................................. 937
Ile v Foremost Ins Co ..................................................... 915, 964
Imler, People v ....................................................................... 896
In re Adams/Crigler Minors .................................................. 932
xlvi 493 M
ICH
R
EPORTS
P
AGE
In re Application of Consumers Energy Co to Increase
Rates .................................................................................. 971
In re Application of International Transmission Co for
Expedited Siting Certificate ............................................. 947
In re Application of The Detroit Edison Co to Increase
Rates .................................................................................. 950
In re Attorney Fees of Atchinson & Hartman (People v
Merriman) ......................................................................... 865
In re Austin ............................................................................ 926
In re Banks/Kimble ............................................................... 961
In re Bradley Estate .............................................................. 866
In re Brockitt ......................................................................... 1022
In re Carroll ........................................................................... 899
In re Certified Question from the United States
Dist Court for the Western Dist of Michigan
(Mattison v Social Security Comm’r) ................ 70
In re Certified Question From the United States Dist
Court for the Western Dist of Michigan (Mattison v
Social Security Comm’r) .................................................. 853
In re Chaddah ........................................................................ 954
In re Conservatorship of Cisneros ....................................... 899
In re Donald E Massey Revocable Trust Dated December
13, 2001 ............................................................................. 928
In re Douglas Estate ............................................................. 928
In re Duncan .......................................................................... 860
In re Eleanor V Mirek Trust ................................................ 929
In re Executive Message of the Governor (Brown v
Governor) .......................................................................... 905
In re Forfeiture of Bail Bond (People v Gaston) ................. 936
In re Godboldo-Hakim .......................................................... 854
In re Goldie ...................................................................... 902, 945
In re Honorable Diane M Hathaway ................................... 956
In re Honorable Kenneth D Post ......................................... 974
In re Hughes .......................................................................... 906
In re James ............................................................................ 902
In re Kieca .............................................................................. 916
In re Kowalski ........................................................................ 956
In re Mays .............................................................................. 945
T
ABLE OF
C
ASES
R
EPORTED
xlvii
P
AGE
In re McCree .................................................................... 873, 935
In re Morrow .......................................................................... 878
In re Nabers/Reed Minors .................................................... 945
In re Niemiec ......................................................................... 890
In re Palacios ......................................................................... 867
In re Parole of Grier .............................................................. 854
In re Parole of Howard ......................................................... 946
In re Request for Advisory Opinion Regarding
Constitutionality of 2012 PA 348 and 2012 PA 349 ...... 1016
In re Russell ........................................................................... 864
In re SCP ................................................................................ 959
In re Sanders ......................................................................... 959
In re Sasak ............................................................................. 852
In re Sholberg Estate ............................................................ 974
In re TD .................................................................................. 873
In re Tiemann ........................................................................ 958
In re Tucker ........................................................................... 925
In re Waters Drain Drainage Dist ........................................ 871
Indian Summer Cooperative, Inc, County of Mason v ....... 973
Ingram, People v (Lyle) ......................................................... 920
Ingram, People v (Roummel) ................................................ 958
Inman, People v ..................................................................... 871
International Transmission Co v Beaber ............................ 854
International Transmission Co v Dixon .............................. 854
International Transmission Co v Kuhn .............................. 854
International Transmission Co v Lemke ............................. 854
International Transmission Co v Liogghio ......................... 854
International Transmission Co v Rogers ............................ 854
International Transmission Co v Slay Estate ..................... 854
International Transmission Co v Smith .............................. 854
Ionia County, Pitsch Recycling & Disposal, Inc v ............... 971
Ives, People v ......................................................................... 877
Ivory, People v ........................................................................ 922
Izenbaard, Fremont Ins Co v ............................................... 859
J
JH Business Consultants, Inc v Tower Automotive
Operations USA III, LLC ................................................. 951
JP Morgan Chase Bank, Kim v ............................................ 962
xlviii 493 M
ICH
R
EPORTS
P
AGE
JPMorgan Chase Bank, Simpson v ...................................... 871
JPMorgan Chase Bank, NA, Kim v ................... 98
Jackson v Jackson ................................................................. 868
Jackson, People v (Don) ........................................................ 919
Jackson, People v (Eric) ........................................................ 954
Jackson, People v (Keith) ...................................................... 868
Jackson, People v (Marcus) .................................................. 920
Jackson-El v Spada ............................................................... 897
Jacob v Bald Mountain West ................................................ 937
Jamerson, People v ................................................................ 901
James, In re ........................................................................... 902
Jamison, People v .................................................................. 857
January, People v ................................................................... 941
Javorsky v Huron Valley Schools ......................................... 953
Jenkins, People v ................................................................... 897
Jennings, People v (Eusean) ................................................. 921
Jennings, People v (Mark) .................................................... 856
Jessee v Walgreen Co ............................................................ 954
Jett, People v ......................................................................... 893
John Guidobono, II, Revocable Trust Agreement v
Jones .................................................................................. 862
John Michael Garrett, MD, PC, Lemin v ............................ 900
Johns v Wixom Builders Supply, Inc ................................... 921
Johnson, Clifton v ................................................................. 877
Johnson v Jones .................................................................... 949
Johnson, People v (Alfonzo) ................................................. 972
Johnson, People v (Brandon) ................................................ 922
Johnson, People v (David) .................................................... 855
Johnson, People v (James) .................................................... 895
Johnson, People v (Jeremy) .................................................. 938
Johnson, People v (Paul) ....................................................... 855
Johnson, People v (Reginald) ............................................... 891
Johnson, People v (Richard) ................................................. 941
Johnson, People v (Savante) ................................................. 970
Johnson, People v (Tadarius) ............................................... 852
Johnson, People v (Terrise) .................................................. 969
Johnson, People v (Todd) ...................................................... 970
Johnson, People v (Trevis) .................................................... 969
Johnston, People v ................................................................. 952
T
ABLE OF
C
ASES
R
EPORTED
xlix
P
AGE
Jones, John Guidobono, II, Revocable Trust Agreement v ... 862
Jones, Johnson v ................................................................... 949
Jones, People v (Anthony) .................................................... 967
Jones, People v (David) ......................................................... 892
Jones, People v (Jeffrey) ....................................................... 918
Jones, People v (Kevin) ......................................................... 852
Jones, People v (Patrick) ....................................................... 917
Jones, People v (Raynada) .................................................... 955
Jones, People v (Ryan) .......................................................... 958
Jones, People v (Scott) .......................................................... 931
Jones, People v (Shulie) ........................................................ 869
Jones, People v (Stanley) ...................................................... 865
Jones, People v (Willie) ......................................................... 893
Jordan, People v .................................................................... 951
Junker, People v .................................................................... 891
K
KAM Transport, Inc, Burris v .............................................. 873
Kasper, People v ..................................................................... 919
Kean, People v ....................................................................... 859
Keinonen, People v ................................................................ 871
Keller, People v ...................................................................... 917
Kellman, People v .................................................................. 897
Kelly, People v ................................................................. 937, 940
Kelly Services, Inc, Holcomb v ............................................. 969
Ken’s Service, Westfield Ins Co v ......................................... 880
Kenney v Booker ............................................................. 851, 927
Kerr, People v ......................................................................... 869
Ketola, People v ..................................................................... 855
Keys, People v ........................................................................ 918
Kieca, In re ............................................................................. 916
Kiessel, Leelanau County Sheriff v ...................................... 877
Kim v JP Morgan Chase Bank ............................................. 962
Kim v JPMorgan Chase Bank, NA .................... 98
Kincaid v City of Flint .......................................................... 871
Kincaid, People v ................................................................... 921
Kindle, People v ..................................................................... 894
King, People v (Nicholas) ...................................................... 955
King, People v (Raymond) .................................................... 938
l 493 M
ICH
R
EPORTS
P
AGE
King, Wilson v ....................................................................... 955
Kinross Correctional Facility Warden, Staffney v .............. 951
Kinross Correctional Facility Warden, Torres v ................. 956
Kircher, People v .................................................................... 959
Kirkland, People v ................................................................. 920
Kirksey, People v ................................................................... 952
Kitchen, People v ................................................................... 901
Kiyoshk, People v .................................................................. 923
Klaasen, People v ............................................................ 860, 861
Klinge, Barry County Treasurer v ....................................... 937
Kloian, Findling v .................................................................. 929
Kloosterman, People v .......................................................... 877
Knight, People v .................................................................... 917
Koehler, Li v ........................................................................... 890
Kokas v Citizens Ins Co of America .................................... 930
Koss v Ahepa 371 II, Inc ....................................................... 866
Kowal, People v ...................................................................... 870
Kowalski, In re ....................................................................... 956
Kraczkowski, People v ........................................................... 919
Krueger v Dep’t of Treasury ................................................ 917
Kuhn, International Transmission Co v ............................. 854
Kutz v Kutz ............................................................................ 857
L
Laborers Local 1191, Henry v .............................................. 934
Laborers Local 1191, Ramsey v ........................................... 934
LaCasse, People v ............................................................ 919, 971
Lacey, People v ....................................................................... 852
LaJoice v Northern Michigan Hospitals, Inc ...................... 965
Lake City Industrial Products, Inc, Erie Ins Exch v ......... 935
Lake County, Debano-Griffin v ........................... 167
Lake Walden Country Club, Majestic Golf, LLC v ............. 958
Lakes of the North Ass’n, New Properties, Inc v ............... 951
Lalone, People v ..................................................................... 895
Lamkin, Read Lumber & Hardware Inc v .......................... 938
Lamphiere v Abraham .......................................................... 1021
Lanctoe, Hoffner v ................................................................ 852
Landon v City of Flint .......................................................... 951
Landon v Twp of Mt Morris ................................................. 951
T
ABLE OF
C
ASES
R
EPORTED
li
P
AGE
Lane v Attorney Grievance Comm ....................................... 956
Langton v State of Michigan ................................................ 972
Lansing (City of), Speelman v .............................................. 974
Lapine, People v .................................................................... 928
Larock, People v .................................................................... 891
LaSalle Bank Midwest, NA v Abernathy ............................ 940
LaSalle Bank National Ass’n v Murray ........................ 871, 944
Laski, People v ....................................................................... 904
Lawrence, Grange Ins Co of Michigan v ............................. 851
Lawson, People v (Geoffrey) ................................................. 896
Lawson, People v (Sema’j) .................................................... 928
Leadingham, People v ........................................................... 952
Leak, People v ........................................................................ 919
Lech v Huntmore Estates Condominium Ass’n ................. 921
Lee v Farmers Ins Exch ........................................................ 945
Lee, People v .......................................................................... 855
Leelanau County Sheriff v Kiessel ....................................... 877
LeFevers v State Farm Mutual Automobile Ins Co ..... 865, 960
Lemerand v University of Michigan Regents ..................... 900
Lemin v John Michael Garrett, MD, PC ............................. 900
Lemke, International Transmission Co v ............................ 854
Lemon v Boudreau ................................................................ 952
Lerner, Willowbrook Rehabilitation Services v ................... 880
Leslie, Babiarz v .................................................................... 862
Lester, People v ...................................................................... 969
Levigne, People v ................................................................... 882
Lewis, Cummings v ......................................................... 902, 932
Lewis, People v (Carlos)......................................................... 892
Lewis, People v (Jerry) .......................................................... 968
Lewis, People v (Martin) ....................................................... 954
Lewis, People v (Sage) ........................................................... 968
Li v Koehler ........................................................................... 890
Ligon, People v ...................................................................... 854
Lindeblad v Grasman ............................................................ 953
Liogghio, International Transmission Co v ........................ 854
Lipnevicius v Lipnevicius ...................................................... 906
Little, People v ....................................................................... 896
Livingston v Huntington Mortgage ..................................... 872
Lloyd, People v ................................................................ 894, 971
lii 493 M
ICH
R
EPORTS
P
AGE
Lockett, People v ................................................................... 852
Logan, People v ...................................................................... 938
Long, People v (Hunter) ....................................................... 861
Long, People v (Joseph) ........................................................ 930
Long, People v (Kenneth) ..................................................... 941
Longacre, People v ................................................................. 869
Lotzer, People v ..................................................................... 858
Loughner, People v ................................................................ 858
Loutts v Loutts ...................................................................... 968
Lovett, People v ..................................................................... 855
Lower Harbor Properties, LLC, Hunt v .............................. 954
Lowry Holding Co, Inc v Geroco Tech Holding Corp ......... 870
Lucio v Great Lakes Casualty Ins Co ........................... 852, 931
Lumbreras, People v .............................................................. 958
Lygizos, Grievance Administrator v .............................. 892, 971
Lynch, People v ...................................................................... 940
Lyon Charter Twp v McDonald’s USA, LLC ................ 906, 963
M
M & T Bank v Ramondetta .................................................. 951
MISS DIG System, Inc v City of Auburn Hills ................... 870
MSX International Platform Services, LLC v Hurley ........ 905
MacArthur, People v .............................................................. 917
Mack, People v ..................................................... 1
Macovei, People v .................................................................. 955
Maedel, Marsack v ................................................................. 926
Majestic Golf, LLC v Lake Walden Country Club .............. 958
Malone, People v .................................................................... 880
Malpass v Dep’t of Treasury ................................................ 864
Mann, People v ...................................................................... 865
Manners, People v ................................................................. 890
Manning, People v ................................................................. 920
Manoku, People v .................................................................. 870
Manzo v Manzo ..................................................................... 858
Maple Pointe Condominium Ass’n, Federal National
Mortgage Ass’n v .............................................................. 940
Marathon Twp, Camp Retreats Foundation, Inc v ............ 946
Marble v Civil Service Comm ............................................... 861
Marks, People v ..................................................................... 931
T
ABLE OF
C
ASES
R
EPORTED
liii
P
AGE
Marsack v Maedel .................................................................. 926
Marshall v Boyne USA, Inc .................................................. 901
Marshall, People v (Calvin) ................................................... 967
Marshall, People v (Dustin) .................................................. 1020
Martin, People v (Alison) ...................................................... 892
Martin, People v (Frederick) ................................................ 919
Martin, People v (Harold) ..................................................... 952
Martinez, People v ................................................................. 894
Marvin, People v (Mark) ....................................................... 956
Marvin, People v (Michael) ................................................... 897
Maslonka, People v ................................................................ 856
Mathison, People v ................................................................ 930
Mattei v Ott ........................................................................... 901
Matthews, People v (Jerry) ................................................... 900
Matthews, People v (Madge) ................................................. 969
Matti, People v ....................................................................... 917
Mattison, City of Dearborn v ............................................... 861
Mattison v Social Security Comm’r (In re
Certified Question from the United States
Dist Court for the Western Dist of Michigan) .. 70
Mattison v Social Security Comm’r (In re Certified
Question From the United States Dist Court for the
Western Dist of Michigan) ............................................... 853
Mayen, People v ..................................................................... 880
Mayes, People v ..................................................................... 970
Mayor of the City of Cadillac v Blackburn .......................... 889
Mays, In re ............................................................................. 945
McCall, People v .................................................................... 952
McCants, People v ................................................................. 893
McCarn, People v ................................................................... 856
McCauley, People v (Coty) .................................................... 919
McCauley, People v (Dedrick) ............................................... 872
McClain, People v .................................................................. 852
McClendon, People v ............................................................. 894
McClinton v Chippewa Correctional Facility Warden ........ 893
McClure, People v .................................................................. 939
McConnell, People v .............................................................. 967
McCowan, People v ................................................................ 892
McCray, People v ................................................................... 967
liv 493 M
ICH
R
EPORTS
P
AGE
McCreary v Dep’t of Corrections ......................................... 894
McCree, In re ................................................................... 873, 935
McDaniel, People v ................................................................ 895
McDonald, People v (James) ................................................. 921
McDonald, People v (Terry) .................................................. 892
McDonald, Sinta v ................................................................. 946
McDonald’s USA, LLC, Lyon Charter Twp v ............... 906, 963
McDuff, People v .................................................................... 956
McFadden v AO Smith .......................................................... 971
McFarland, People v .............................................................. 956
McFerrin, People v ................................................................ 891
McGaha, People v .................................................................. 896
McGhee, People v .................................................................. 897
McGowan, People v (Anthony) ............................................. 930
McGowan, People v (Demetric) ............................................ 967
McIlveene, People v ............................................................... 858
McKelvy, Trackhtenberg v .................................................... 946
McKenzie, People v ................................................................ 893
McKinney, People v ............................................................... 940
McLean, Michigan One Funding, LLC v ............................. 973
McLean, People v ................................................................... 967
McMahon, People v ............................................................... 930
McMillan, People v ................................................................ 953
McNeight, People v ................................................................ 882
McNeilus Truck & Mfg, Inc, Mitchell v .............................. 973
McPherson v McPherson .................................... 294
McPherson v McPherson ...................................................... 853
McPherson Mansion LLC v City of Howell ......................... 953
McQueen, State of Michigan v ........................... 135
Meads, People v ..................................................................... 896
Medlin, People v .................................................................... 919
Mehsen Garmo, Royse, Inc, El-Sayed v ............................... 954
Meissner, People v ................................................................. 922
Meitzner, Clark v ................................................................... 920
Menard, Inc, Curtiss v .......................................................... 949
Mende, People v ..................................................................... 969
Mendoza, People v ................................................................. 868
Merlo Construction Co, Inc v Citizens Ins Co of America .... 940
Merriman, People v (In re Attorney Fees of Atchinson &
Hartman) ........................................................................... 865
T
ABLE OF
C
ASES
R
EPORTED
lv
P
AGE
Merritt, People v .................................................................... 967
Messer, Chamberlain v .......................................................... 869
Metcalfe, People v .................................................................. 921
Metzelburg, People v ............................................................. 970
Meyers, Almutawa v .............................................................. 916
Michigan American Federation of State, County &
Municipal Employees Council 25, Local 917, 36th Dist
Court v ............................................................................... 879
Michigan Ass’n of Governmental Employees v State of
Michigan ............................................................................ 860
Michigan Assigned Claims Plan, Bronson Methodist
Hospital v .......................................................................... 939
Michigan Catastrophic Claims Ass’n, Old Republic Ins
Co v ........................................................................................... 856
Michigan Ed Ass’n v Michigan Public School Employees’
Retirement System ........................................................... 884
Michigan Film Coalition v State of Michigan ..................... 944
Michigan Ins Co, Farmers Insurance Exch v ...................... 1015
Michigan Ins Co v National Liability & Fire Ins Co ... 853, 924
Michigan One Funding, LLC v McLean .............................. 973
Michigan Public School Employees’ Retirement System,
Michigan Ed Ass’n v ........................................................ 884
MidMichigan Medical Center-Midland, Zunich v ............... 893
Midds, People v ...................................................................... 891
Mihalovits v SDW Holdings Corp ........................................ 882
Miles, People v ....................................................................... 925
Miller v Miller ........................................................................ 879
Miller, People v (Charles) ...................................................... 896
Miller, People v (Deandrae) .................................................. 871
Miller, People v (Eric) ........................................................... 917
Miller, People v (Marty) ........................................................ 968
Miller, People v (Theodore) ................................................... 970
Mills, People v (Ellis) ............................................................ 868
MillervSMHong Associates, Inc ....................................... 925
Mills, People v (Glynn) .......................................................... 968
Minch, People v .................................................... 87
Minix, People v ...................................................................... 952
Mitchell v McNeilus Truck & Mfg, Inc ............................... 973
Mitchell, People v (Anthony) ................................................ 857
lvi 493 M
ICH
R
EPORTS
P
AGE
Mitchell, People v (Vaughn) .................................................. 883
Moats, People v ...................................................................... 971
Mobley, People v .................................................................... 954
Moncado, People v ................................................................. 920
Montgomery, People v ........................................................... 868
Moon, People v (Cecil) ........................................................... 856
Moon, People v (Christopher) ............................................... 854
Mooney v Arends ................................................................... 870
Moore, People v (George) ...................................................... 955
Moore, People v (James) ....................................................... 896
Moore, People v (Keith) ........................................................ 933
Moore, People v (Matthew) ................................................... 955
Moore, People v (Ricky) ........................................................ 871
Moore, People v (Robert) ...................................................... 943
Moore v Pugsley Correctional Facility Warden ................... 918
Moore v Walgreens Co .......................................................... 956
Morningstar, People v ........................................................... 939
Morris v Morris ..................................................................... 865
Morris, People v ..................................................................... 935
Morrissey, People v ................................................................ 940
Morrow, In re ......................................................................... 878
Mort, People v ........................................................................ 894
Mortgage Electronic Registration System, Bakri v ............ 954
Morton, People v .................................................................... 871
Mosley, People v ..................................................................... 919
Moss, People v ................................................................. 892, 957
Muhammad, People v ............................................................ 893
Mull, People v ........................................................................ 867
Murphy, People v (Antionne) ................................................ 955
Murphy, People v (Bernard) ................................................. 869
Murphy, People v (John) ....................................................... 869
Murray v ITC Holdings Corp ............................................... 937
Murray, LaSalle Bank National Ass’n v ........................ 871, 944
Murray, People v .................................................................... 868
Mushovic v Bloomfield Hills School Dist ............................ 891
Musser, People v .................................................................... 860
N
NWD, LLC v Charter Twp of Royal Oak ............................ 970
T
ABLE OF
C
ASES
R
EPORTED
lvii
P
AGE
Nabers/Reed Minors, In re ................................................... 945
Naccarato, People v ............................................................... 953
Napier, People v ..................................................................... 954
National Liability & Fire Ins Co, Michigan Ins Co v .. 853, 924
Natural Resources (Dep’t of), Bell v .................................... 974
Neal, People v (Diontae) ....................................................... 892
Neal, People v (Wesley) ......................................................... 891
Neff, People v ......................................................................... 893
Nelson, People v (Cody) ........................................................ 866
Nelson, People v (Germaine) ................................................ 921
Nelson, People v (James) ...................................................... 932
Nelson, People v (Jimmie) .................................................... 933
Nelson, People v (William) .................................................... 929
Nettekoven, People v ............................................................. 858
Nettles, People v .................................................................... 939
New Properties, Inc v Lakes of the North Ass’n ................ 951
NextEnergy Center, Greenville Mfg, LLC v ........................ 939
Nichol, People v ..................................................................... 870
Nichols v Howmet Corp ........................................................ 890
Nicholson v Citizens Ins Co of America .............................. 880
Nicholson, People v ............................................................... 942
Niemiec, In re ........................................................................ 890
Niemiec, People v ............................................................ 890, 971
Niswonger, Porter v ............................................................... 897
Norris, People v (John) ......................................................... 869
Norris, People v (Philip) ....................................................... 891
North American Specialty Ins Co, Premier Center of
Canton v ............................................................................ 854
North Pointe Ins Co v Simpson ........................................... 929
Northern Michigan Hospitals, Inc, LaJoice v ..................... 965
Novak, People v ..................................................................... 953
Null, People v ......................................................................... 898
O
Oakland Pebble Creek Housing Associates, Olney v .......... 1021
Oaks Correctional Facility Warden, Truss v ....................... 940
Obrien, People v .................................................................... 954
Obrzut v Polish Deli & Bakery, Inc ..................................... 970
O’Connor, People v ................................................................ 920
lviii 493 M
ICH
R
EPORTS
P
AGE
Ocwen Loan Servicing, LLC, Bonsu v ................................. 955
Odom, People v ...................................................................... 891
Odoms, People v .................................................................... 870
Oilfield Pipe & Supply, Inc, Advance Steel Co v ................. 897
Old CF, Inc v Rehmann Group, Inc ..................................... 930
Old Republic Ins Co v Michigan Catastrophic Claims
Ass’n .................................................................................. 856
Oliver, People v (Ronnie) ...................................................... 858
Oliver, People v (Shirley) ...................................................... 897
Olney v Oakland Pebble Creek Housing Associates ........... 1021
Orchard, Hiltz & McCliment, Inc, City of Huntington
Woods v .............................................................................. 905
Orco Investments, Inc v City of Romulus ........................... 928
Orick, People v ....................................................................... 967
Orlando, People v .................................................................. 929
Orlewicz, People v ................................................................. 916
Ortiz v Richard A Handlon Correctional Facility Warden ..... 896
Osborne, People v .................................................................. 851
Ostrander, People v ............................................................... 919
Ott, Mattei v .......................................................................... 901
Ovegian, People v .................................................................. 869
P
Pahoski, People v ................................................................... 965
Paige v EverHome Mortgage Co .......................................... 951
Palace Sports & Entertainment, Hopp v ............................. 918
Palacios, In re ........................................................................ 867
Palmer, People v .................................................................... 869
Palushaj, Thom v ............................................................ 865, 931
Paramount Limited, LLC, Police & Fire Retirement
System of the City of Detroit v ....................................... 1022
Parker, Davis v ....................................................................... 867
Parker, People v ..................................................................... 896
Parks v Dep’t of Corrections ................................................ 925
Parks, People v (Angelo) ....................................................... 870
Parks, People v (Francis) ...................................................... 944
Parks, People v (Robert) ....................................................... 952
Parole of Grier, In re ............................................................. 854
Parole of Howard, In re ........................................................ 946
T
ABLE OF
C
ASES
R
EPORTED
lix
P
AGE
Parrish, People v (Daniel) ..................................................... 969
Parrish, People v (Ryan) ....................................................... 918
Patridge, People v .................................................................. 955
Patterson, People v ................................................................ 940
Patton v Village of Cassopolis .............................................. 917
Payne, People v ...................................................................... 857
Pearson, People v ................................................................... 969
Peikert, People v .................................................................... 890
Penfield, People v .................................................................. 970
Penny, People v ...................................................................... 872
Penzien, People v ................................................................... 929
People v Acquaah .................................................................. 952
People v Adam ....................................................................... 892
People v Adams (Chad) ......................................................... 894
People v Adams (Terry) ........................................................ 894
People v Aikens ...................................................................... 920
People v Akhmedov ............................................................... 920
People v Al-Shara .................................................................. 870
People v Alcaraz .................................................................... 955
People v Alexander (Antonio) ............................................... 921
People v Alexander (Delbridge) ............................................ 954
People v Alexander (Jumar) ................................................. 870
People v Alford ...................................................................... 856
People v Allen (Anthony) ...................................................... 953
People v Allen (Bernard) ....................................................... 892
People v Allen (Christopher) ................................................ 939
People v Allen (Kevin) ........................................................... 854
People v Allen (Ronald) ........................................................ 955
People v Allen (Ronald Lee) ................................................. 973
People v Allen (Spencer) ....................................................... 969
People v Allingham Corp ...................................................... 939
People v Allison ..................................................................... 968
People v Almond .................................................................... 895
People v Amersey .................................................................. 857
People v Anderson (Eric) ...................................................... 967
People v Anderson (Michael) ................................................ 955
People v Ankney .................................................................... 892
People v Armijo ...................................................................... 864
People v Armstrong ............................................................... 923
lx 493 M
ICH
R
EPORTS
P
AGE
People v Arnett ...................................................................... 940
People v Arthur ............................................................... 898, 935
People v Ashenhurst-Gallina ................................................ 956
People v Ashford .................................................................... 954
People v Atchison .................................................................. 869
People v Bacon ....................................................................... 922
People v Bailey ....................................................................... 930
People v Baker (Dannie) ....................................................... 894
People v Baker (Todd) ........................................................... 857
People v Ball (Amanda) ......................................................... 878
People v Ball (Eric) ............................................................... 897
People v Bancroft .................................................................. 929
People v Banks ....................................................................... 922
People v Bard ......................................................................... 970
People v Barnes (Jeffery) ...................................................... 970
People v Barnes (Tracy) ........................................................ 890
People v Barnhard ................................................................. 894
People v Bartley ..................................................................... 953
People v Bartulio ................................................................... 892
People v Barylski ................................................................... 954
People v Bass ......................................................................... 969
People v Basso ....................................................................... 855
People v Bastien .................................................................... 921
People v Bates ........................................................................ 891
People v Bearden ................................................................... 857
People v Belcher .................................................................... 891
People v Bell (Brandon) ........................................................ 952
People v Bell (Clois) .............................................................. 855
People v Bell (Devon) ..................................................... 870, 943
People v Bell (Edmund) ........................................................ 895
People v Bell (Joie) ................................................................ 930
People v Bell (Reginald) ........................................................ 893
People v Bell-Cook ................................................................. 954
People v Beltowski ................................................................. 968
People v Bennett (Ellery) ...................................................... 952
People v Bennett (Jimmy) .................................................... 928
People v Bennett (Neil) ......................................................... 921
People v Bentley (Bryant)...................................................... 969
People v Bentley (Damon) ..................................................... 967
T
ABLE OF
C
ASES
R
EPORTED
lxi
P
AGE
People v Benton ..................................................................... 953
People v Betts ........................................................................ 870
People v Beverley ................................................................... 881
People v Bijarro ..................................................................... 952
People v Birge ........................................................................ 953
People v Biskner .................................................................... 895
People v Bivins ...................................................................... 954
People v Blackshere ............................................................... 891
People v Blackwell ................................................................. 919
People v Blake ....................................................................... 952
People v Blankenship ...................................................... 918, 957
People v Blanks ..................................................................... 919
People v Bogard (Steve) ........................................................ 940
People v Bogard (Villard) ...................................................... 893
People v Booker ..................................................................... 897
People v Boone ....................................................................... 897
People v Bopp ........................................................................ 939
People v Borkowski ............................................................... 931
People v Bostick ..................................................................... 896
People v Bowdry .................................................................... 921
People v Bowers .............................................................. 869, 931
People v Boyett ...................................................................... 890
People v Boykin ..................................................................... 868
People v Bragg ....................................................................... 897
People v Brame ...................................................................... 872
People v Brantley ............................................................ 877, 943
People v Brasher .................................................................... 895
People v Bridgeforth .............................................................. 938
People v Bridges .................................................................... 871
People v Briggs ...................................................................... 917
People v Brooks ..................................................................... 955
People v Broughton ............................................................... 871
People v Brown (Charles) ..................................................... 872
People v Brown (Donna) ....................................................... 968
People v Brown (Jason) ........................................................ 929
People v Brown (Matthew) ................................................... 857
People v Brown (Rashod) ...................................................... 891
People v Brown (Robert) ....................................................... 919
People v Brown (Ryan) ......................................................... 939
lxii 493 M
ICH
R
EPORTS
P
AGE
People v Brown (William Bedford) ....................................... 869
People v Brown (William Jessie) .......................................... 954
People v Brownell .................................................................. 856
People v Browning ................................................................. 870
People v Bryant ..................................................................... 892
People v Buck ........................................................................ 928
People v Buckner ................................................................... 881
People v Buggs ....................................................................... 892
People v Buley ....................................................................... 928
People v Bullock .................................................................... 893
People v Buriel ....................................................................... 938
People v Burke ................................................................ 918, 957
People v Burnett .................................................................... 868
People v Burnette .................................................................. 955
People v Burns (David) ......................................................... 879
People v Burns (Douglas) ..................................................... 941
People v Burns-Perry ............................................................ 917
People v Burr ......................................................................... 893
People v Burrell ..................................................................... 968
People v Burton ..................................................................... 952
People v Bush ........................................................................ 954
People v Buss ......................................................................... 891
People v Byars ....................................................................... 858
People v Bylsma ................................................... 17
People v Bynum ..................................................................... 877
People v Byrd ......................................................................... 920
People v Caldwell ................................................................... 952
People v Calvin ...................................................................... 870
People v Camel ...................................................................... 920
People v Cameron .................................................................. 895
People v Canada .................................................................... 857
People v Cannon .................................................................... 967
People v Cardenas-Borbon .................................................... 939
People v Carlson .................................................................... 869
People v Carpenter (Brian) ................................................... 868
People v Carpenter (Darrell) ................................................ 955
People v Carr (Leondre) ........................................................ 953
People v Carr (Trent) ............................................................ 868
People v Carroll ..................................................................... 930
T
ABLE OF
C
ASES
R
EPORTED
lxiii
P
AGE
People v Carter (Drew) ......................................................... 856
People v Carter (Keith) ......................................................... 869
People v Carter (Richard) ..................................................... 894
People v Cary ......................................................................... 946
People v Casanave ................................................................. 855
People v Causley .................................................................... 892
People v Cavin ....................................................................... 968
People v Chakkour ................................................................ 961
People v Chandler .................................................................. 856
People v Chapman (David) ................................................... 942
People v Chapman (Winslow) ............................................... 868
People v Chen .................................................................. 866, 922
People v Childress ........................................................... 858, 893
People v Childs ...................................................................... 859
People v Chinn ....................................................................... 891
People v Chorazyczewski ...................................................... 954
People v Christian ................................................................. 897
People v Clardy ...................................................................... 919
People v Clark ........................................................................ 917
People v Clausell .................................................................... 870
People v Cloud ....................................................................... 928
People v Coatsworth .............................................................. 920
People v Coddington .............................................................. 919
People v Coffin ....................................................................... 868
People v Cole (Duncan) ......................................................... 857
People v Cole (Jimmy) .......................................................... 855
People v Cole (Richmond) ..................................................... 857
People v Coleman (Daniel) .................................................... 941
People v Coleman (Derrick) .................................................. 922
People v Colson ...................................................................... 870
People v Comella ................................................................... 905
People v Comstock ................................................................. 920
People v Cook ......................................................................... 891
People v Cooper (Elrick) ....................................................... 917
People v Cooper (Steven) ...................................................... 917
People v Cooper (Wendell) .................................................... 871
People v Cornelius ................................................................. 951
People v Cornwell .................................................................. 937
People v Corrion .................................................................... 856
lxiv 493 M
ICH
R
EPORTS
P
AGE
People v Cousins .................................................................... 871
People v Crabtree .................................................................. 878
People v Craighead ......................................................... 867, 931
People v Crawford ................................................................. 920
People v Crenshaw ................................................................ 920
People v Croff ........................................................................ 905
People v Crowell .................................................................... 937
People v Crump ............................................................... 892, 943
People v Cruz-Rivera ............................................................. 879
People v Crysler ..................................................................... 859
People v Culberson ................................................................ 890
People v Culhane ................................................................... 968
People v Cullens .................................................................... 919
People v Cummings ............................................................... 881
People v Cunningham ........................................................... 869
People v Currie ................................................................ 868, 931
People v Curry (DeMarcus) .................................................. 969
People v Curry (Erick) .......................................................... 965
People v Curry (Jeffrey) ........................................................ 893
People v Curry-Howard ......................................................... 857
People v Cutler-Ferro ............................................................ 896
People v Dancy ...................................................................... 895
People v Daniels .................................................................... 955
People v Dantzler ............................................................ 918, 971
People v David ....................................................................... 869
People v Davis (Anthony) ..................................................... 871
People v Davis (Detrick) ....................................................... 971
People v Davis (Jeffrey) ........................................................ 873
People v Davis (Tarranisha) ................................................. 917
People v Dawson (Tabatha) .................................................. 930
People v Dawson (Terrance) ................................................. 895
People v Dean (Fletcher) ...................................................... 921
People v Dean (Isadore) .................................................. 881, 930
People v DeBerry ................................................................... 893
People v DeJonge ................................................................... 928
People v Deleon ..................................................................... 857
People v Delpiano .................................................................. 967
People v Desmyther ............................................................... 952
People v Diaz ......................................................................... 921
T
ABLE OF
C
ASES
R
EPORTED
lxv
P
AGE
People v Dickerson ................................................................ 940
People v Disney ...................................................................... 858
People v Dixon (Carl) ............................................................ 868
People v Dixon (Hamin) ........................................................ 867
People v Dixon (Lamont) ...................................................... 868
People v Dixon (Marcael) ...................................................... 971
People v Dobbs ....................................................................... 952
People v Donaldson ............................................................... 896
People v Dorsey ..................................................................... 857
People v Dosenberry .............................................................. 869
People v Dothard ................................................................... 918
People v Dotson ..................................................................... 868
People v Douglas (Jeffery) .................................................... 876
People v Douglas (Ronald) .................................................... 894
People v Douglas (Todd) ....................................................... 861
People v Drake ....................................................................... 919
People v Dufresne .................................................................. 868
People v Duncan (Michael) ................................................... 921
People v Duncan (Stanley) ............................................. 867, 926
People v Duncan (Vita) ................................................... 867, 926
People v Dunigan ................................................................... 869
People v Dunn ........................................................................ 898
People v Durham ................................................................... 856
People v Dusseau ................................................................... 871
People v Dutterer .................................................................. 896
People v Dwyer ...................................................................... 896
People v Earl .......................................................................... 945
People v Earls ........................................................................ 897
People v Ebrahimi ................................................................. 877
People v Eby .......................................................................... 891
People v Echols ...................................................................... 918
People v Eckford .................................................................... 855
People v Edwards (Andre) .............................................. 881, 931
People v Edwards (Kenneth) ................................................ 919
People v Eisen ........................................................................ 918
People v Eison ........................................................................ 941
People v Elie .......................................................................... 858
People v Elizondo .................................................................. 895
People v Elledge ..................................................................... 919
lxvi 493 M
ICH
R
EPORTS
P
AGE
People v Ellis (Obar) ....................................................... 920, 957
People v Ellis (Zachary) ........................................................ 896
People v Elmore ..................................................................... 955
People v Emery ...................................................................... 952
People v Emory ...................................................................... 877
People v English .................................................................... 927
People v Esbaugh .................................................................. 896
People v Etchie ...................................................................... 865
People v Evans ....................................................................... 959
People v Everett .................................................................... 918
People v Fairley (Harvey) ..................................................... 855
People v Fairley (Lewis) ........................................................ 894
People v Farnen ..................................................................... 872
People v Ferrell ...................................................................... 918
People v Fields (Timothy) ..................................................... 882
People v Fields (Willie) ......................................................... 892
People v Fizer ........................................................................ 896
People v Flemming ................................................................ 891
People v Florence ................................................................... 870
People v Flores ....................................................................... 918
People v Forgeon ................................................................... 917
People v Foster ...................................................................... 893
People v Franklin ............................................................ 897, 944
People v Frederick (Christa) ................................................. 918
People v Frederick (Myles) ................................................... 951
People v Freeman (Joseph Delvert) ..................................... 970
People v Freeman (Joseph Erby) ......................................... 918
People v French ..................................................................... 930
People v Friedman ................................................................. 869
People v Frisby ...................................................................... 892
People v Fritz ......................................................................... 941
People v Fryer ........................................................................ 939
People v Furman ................................................................... 940
People v Gaines ..................................................................... 858
People v Gantt ....................................................................... 868
People v Gardner (Chester) .................................................. 955
People v Gardner (Ronald) ................................................... 941
People v Garrett .................................................................... 949
People v Garrison .................................................................. 1015
T
ABLE OF
C
ASES
R
EPORTED
lxvii
P
AGE
People v Gaskill ..................................................................... 894
People v Gaston (In re Forfeiture of Bail Bond) ................. 936
People v Gatiss ...................................................................... 892
People v Geierman ................................................................ 934
People v Gentry ..................................................................... 930
People v George ..................................................................... 938
People v Gerencer .................................................................. 940
People v Giddis ................................................................ 897, 944
People v Giles ......................................................................... 857
People v Gillen ....................................................................... 857
People v Gilmore ................................................................... 859
People v Gioglio ..................................................................... 864
People v Gladish .................................................................... 918
People v Glover ...................................................................... 857
People v Goike ....................................................................... 969
People v Gonser ..................................................................... 901
People v Gonzales .................................................................. 893
People v Gonzalez .................................................................. 969
People v Gooden .................................................................... 896
People v Goodman ................................................................. 891
People v Gordon .................................................................... 917
People v Gosselin ................................................................... 900
People v Goudlock ................................................................. 928
People v Gourd ...................................................................... 925
People v Graham (Donald) ................................................... 892
People v Graham (Ernest) .................................................... 856
People v Graham (Scott) ....................................................... 955
People v Granaas ............................................................ 855, 931
People v Granderson ............................................................. 896
People v Grant ....................................................................... 900
People v Green ....................................................................... 916
People v Greene (Darrius) .............................................. 919, 957
People v Greene (Loren) ................................................. 916, 917
People v Greer ....................................................................... 868
People v Gregory ................................................................... 920
People v Grisham .................................................................. 855
People v Grissom ................................................................... 880
People v Grix ......................................................................... 896
People v Grubbs ..................................................................... 953
lxviii 493 M
ICH
R
EPORTS
P
AGE
People v Guerra ..................................................................... 891
People v Haire ........................................................................ 895
People v Hale ......................................................................... 870
People v Hall (Kareen) .......................................................... 930
People v Hall (Robert) ........................................................... 968
People v Hall (Shakeisha) ..................................................... 973
People v Hall (William) ................................................... 898, 971
People v Hamama .................................................................. 905
People v Hamilton ........................................................... 882, 931
People v Haney ...................................................................... 954
People v Hansen .................................................................... 893
People v Hanserd ................................................................... 952
People v Hardges ................................................................... 866
People v Hardy ...................................................................... 898
People v Harriger .................................................................. 868
People v Harrington .............................................................. 891
People v Harris (Corey) ........................................................ 917
People v Harris (Frederick) .................................................. 968
People v Harris (Gregory) ..................................................... 970
People v Harris (Isaac) .......................................................... 920
People v Harris (James) ........................................................ 948
People v Harris (Johnny) ...................................................... 906
People v Harris (Kymon) ...................................................... 969
People v Harris (Otto) ........................................................... 892
People v Harris (Raymond) ............................................ 941, 967
People v Hartwick ................................................................. 950
People v Harvey ..................................................................... 896
People v Hawkins (Cecil) ...................................................... 895
People v Hawkins (Charles) .................................................. 920
People v Hawkins (Deandre) ................................................ 969
People v Hawley .................................................................... 898
People v Hayes ....................................................................... 895
People v Haynes (Aaron) ...................................................... 968
People v Haynes (Maurice) ................................................... 897
People v Heath ....................................................................... 897
People v Heisler ..................................................................... 890
People v Henderson ........................................................ 856, 857
People v Hendricks ................................................................ 970
People v Hendrix ................................................................... 952
T
ABLE OF
C
ASES
R
EPORTED
lxix
P
AGE
People v Henley ..................................................................... 925
People v Herbert .................................................................... 968
People v Hershey ................................................................... 937
People v Hesley ...................................................................... 869
People v Hess ......................................................................... 871
People v Hettinger ................................................................. 882
People v Heyza ....................................................................... 882
People v Highers .................................................................... 959
People v Hill (Kevin).............................................................. 939
People v Hill (Nayvon) .......................................................... 967
People v Hill (William) .......................................................... 968
People v Hilton ...................................................................... 971
People v Hinzman (Aaron) ................................................... 951
People v Hinzman (Rebecca) ................................................ 951
People v Hoard ...................................................................... 892
People v Hobbs ................................................................ 920, 972
People v Hoch ........................................................................ 919
People v Hodges ..................................................................... 918
People v Holden ..................................................................... 969
People v Holmes (Jeffrey) ..................................................... 891
People v Holmes (Rod) .......................................................... 895
People v Holt .......................................................................... 938
People v Hood ........................................................................ 871
People v Hopkins (Eugene) ................................................... 917
People v Hopkins (Lemont) .................................................. 894
People v Hopkins (Russell) ................................................... 895
People v Horn ........................................................................ 897
People v Howard (Anthony) ................................................. 890
People v Howard (Joseph) .................................................... 921
People v Howell ..................................................................... 893
People v Howze ...................................................................... 951
People v Hubel ....................................................................... 893
People v Hudson (David) ...................................................... 900
People v Hudson (Gerald) ..................................................... 970
People v Huffman .................................................................. 893
People v Hughes .................................................................... 921
People v Huguely ................................................................... 897
People v Hunt ........................................................................ 857
People v Hunter (Andre) ....................................................... 1015
lxx 493 M
ICH
R
EPORTS
P
AGE
People v Hunter (Larry) ....................................................... 919
People v Hunter (Willie) ....................................................... 895
People v Hursey ..................................................................... 954
People v Hurtado-Garcia ....................................................... 869
People v Imler ........................................................................ 896
People v Ingram (Lyle) .......................................................... 920
People v Ingram (Roummel) ................................................. 958
People v Inman ...................................................................... 871
People v Ives .......................................................................... 877
People v Ivory ........................................................................ 922
People v Jackson (Don) ......................................................... 919
People v Jackson (Eric) ......................................................... 954
People v Jackson (Keith) ....................................................... 868
People v Jackson (Marcus) ................................................... 920
People v Jamerson ................................................................. 901
People v Jamison ................................................................... 857
People v January ................................................................... 941
People v Jenkins .................................................................... 897
People v Jennings (Eusean) .................................................. 921
People v Jennings (Mark) ..................................................... 856
People v Jett .......................................................................... 893
People v Johnson (Alfonzo) .................................................. 972
People v Johnson (Brandon) ................................................. 922
People v Johnson (David) ..................................................... 855
People v Johnson (James) ..................................................... 895
People v Johnson (Jeremy) ................................................... 938
People v Johnson (Paul) ........................................................ 855
People v Johnson (Reginald) ................................................ 891
People v Johnson (Richard) .................................................. 941
People v Johnson (Savante) .................................................. 970
People v Johnson (Tadarius) ................................................ 852
People v Johnson (Terrise) ................................................... 969
People v Johnson (Todd) ....................................................... 970
People v Johnson (Trevis) ..................................................... 969
People v Johnston .................................................................. 952
People v Jones (Anthony) ..................................................... 967
People v Jones (David) .......................................................... 892
People v Jones (Jeffrey) ........................................................ 918
People v Jones (Kevin) .......................................................... 852
T
ABLE OF
C
ASES
R
EPORTED
lxxi
P
AGE
People v Jones (Patrick) ........................................................ 917
People v Jones (Raynada) ..................................................... 955
People v Jones (Ryan) ........................................................... 958
People v Jones (Scott) ........................................................... 931
People v Jones (Shulie) ......................................................... 869
People v Jones (Stanley) ....................................................... 865
People v Jones (Willie) .......................................................... 893
People v Jordan ..................................................................... 951
People v Junker ..................................................................... 891
People v Kasper ..................................................................... 919
People v Kean ........................................................................ 859
People v Keinonen ................................................................. 871
People v Keller ....................................................................... 917
People v Kellman ................................................................... 897
People v Kelly .................................................................. 937, 940
People v Kerr ......................................................................... 869
People v Ketola ...................................................................... 855
People v Keys ......................................................................... 918
People v Kincaid .................................................................... 921
People v Kindle ...................................................................... 894
People v King (Nicholas) ....................................................... 955
People v King (Raymond) ..................................................... 938
People v Kircher .................................................................... 959
People v Kirkland .................................................................. 920
People v Kirksey .................................................................... 952
People v Kitchen .................................................................... 901
People v Kiyoshk ................................................................... 923
People v Klaasen ............................................................. 860, 861
People v Kloosterman ........................................................... 877
People v Knight ..................................................................... 917
People v Kowal ....................................................................... 870
People v Kraczkowski ............................................................ 919
People v LaCasse ............................................................. 919, 971
People v Lacey ....................................................................... 852
People v Lalone ...................................................................... 895
People v Lapine ..................................................................... 928
People v Larock ..................................................................... 891
People v Laski ........................................................................ 904
People v Lawson (Geoffrey) .................................................. 896
lxxii 493 M
ICH
R
EPORTS
P
AGE
People v Lawson (Sema’j) ..................................................... 928
People v Leadingham ............................................................ 952
People v Leak ......................................................................... 919
People v Lee ........................................................................... 855
People v Lester ...................................................................... 969
People v Levigne .................................................................... 882
People v Lewis (Carlos).......................................................... 892
People v Lewis (Jerry) ........................................................... 968
People v Lewis (Martin) ........................................................ 954
People v Lewis (Sage) ............................................................ 968
People v Ligon ....................................................................... 854
People v Little ........................................................................ 896
People v Lloyd ................................................................. 894, 971
People v Lockett .................................................................... 852
People v Logan ....................................................................... 938
People v Long (Hunter) ........................................................ 861
People v Long (Joseph) ......................................................... 930
People v Long (Kenneth) ...................................................... 941
People v Longacre .................................................................. 869
People v Lotzer ...................................................................... 858
People v Loughner ................................................................. 858
People v Lovett ...................................................................... 855
People v Lumbreras ............................................................... 958
People v Lynch ....................................................................... 940
People v MacArthur .............................................................. 917
People v Mack ...................................................... 1
People v Macovei ................................................................... 955
People v Malone ..................................................................... 880
People v Mann ....................................................................... 865
People v Manners .................................................................. 890
People v Manning .................................................................. 920
People v Manoku ................................................................... 870
People v Marks ...................................................................... 931
People v Marshall (Calvin) .................................................... 967
People v Marshall (Dustin) ................................................... 1020
People v Martin (Alison) ....................................................... 892
People v Martin (Frederick) ................................................. 919
People v Martin (Harold) ...................................................... 952
People v Martinez .................................................................. 894
T
ABLE OF
C
ASES
R
EPORTED
lxxiii
P
AGE
People v Marvin (Mark) ........................................................ 956
People v Marvin (Michael) .................................................... 897
People v Maslonka ................................................................. 856
People v Mathison ................................................................. 930
People v Matthews (Jerry) .................................................... 900
People v Matthews (Madge) .................................................. 969
People v Matti ........................................................................ 917
People v Mayen ...................................................................... 880
People v Mayes ...................................................................... 970
People v McCall ..................................................................... 952
People v McCants .................................................................. 893
People v McCarn .................................................................... 856
People v McCauley (Coty) ..................................................... 919
People v McCauley (Dedrick) ................................................ 872
People v McClain ................................................................... 852
People v McClendon .............................................................. 894
People v McClure ................................................................... 939
People v McConnell ............................................................... 967
People v McCowan ................................................................. 892
People v McCray .................................................................... 967
People v McDaniel ................................................................. 895
People v McDonald (James) .................................................. 921
People v McDonald (Terry) ................................................... 892
People v McDuff .................................................................... 956
People v McFarland ............................................................... 956
People v McFerrin ................................................................. 891
People v McGaha ................................................................... 896
People v McGhee ................................................................... 897
People v McGowan (Anthony) .............................................. 930
People v McGowan (Demetric) ............................................. 967
People v McIlveene ................................................................ 858
People v McKenzie ................................................................. 893
People v McKinney ................................................................ 940
People v McLean .................................................................... 967
People v McMahon ................................................................ 930
People v McMillan ................................................................. 953
People v McNeight ................................................................. 882
People v Meads ...................................................................... 896
People v Medlin ..................................................................... 919
lxxiv 493 M
ICH
R
EPORTS
P
AGE
People v Meissner .................................................................. 922
People v Mende ...................................................................... 969
People v Mendoza .................................................................. 868
People v Merriman (In re Attorney Fees of Atchinson &
Hartman) ........................................................................... 865
People v Merritt ..................................................................... 967
People v Metcalfe ................................................................... 921
People v Metzelburg .............................................................. 970
People v Midds ....................................................................... 891
People v Miles ........................................................................ 925
People v Miller (Charles) ...................................................... 896
People v Miller (Deandrae) ................................................... 871
People v Miller (Eric) ............................................................ 917
People v Miller (Marty) ......................................................... 968
People v Miller (Theodore) ................................................... 970
People v Mills (Ellis) ............................................................. 868
People v Mills (Glynn) ........................................................... 968
People v Minch ..................................................... 87
People v Minix ....................................................................... 952
People v Mitchell (Anthony) ................................................. 857
People v Mitchell (Vaughn) ................................................... 883
People v Moats ....................................................................... 971
People v Mobley ..................................................................... 954
People v Moncado .................................................................. 920
People v Montgomery ............................................................ 868
People v Moon (Cecil) ............................................................ 856
People v Moon (Christopher) ................................................ 854
People v Moore (George) ....................................................... 955
People v Moore (James) ........................................................ 896
People v Moore (Keith) ......................................................... 933
People v Moore (Matthew) .................................................... 955
People v Moore (Ricky) ......................................................... 871
People v Moore (Robert) ....................................................... 943
People v Morningstar ............................................................ 939
People v Morris ...................................................................... 935
People v Morrissey ................................................................ 940
People v Mort ......................................................................... 894
People v Morton ..................................................................... 871
People v Mosley ..................................................................... 919
T
ABLE OF
C
ASES
R
EPORTED
lxxv
P
AGE
People v Moss .................................................................. 892, 957
People v Muhammad ............................................................. 893
People v Mull ......................................................................... 867
People v Murphy (Antionne) ................................................ 955
People v Murphy (Bernard) .................................................. 869
People v Murphy (John) ....................................................... 869
People v Murray .................................................................... 868
People v Musser ..................................................................... 860
People v Naccarato ................................................................ 953
People v Napier ...................................................................... 954
People v Neal (Diontae) ........................................................ 892
People v Neal (Wesley) .......................................................... 891
People v Neff .......................................................................... 893
People v Nelson (Cody) ......................................................... 866
People v Nelson (Germaine) ................................................. 921
People v Nelson (James) ....................................................... 932
People v Nelson (Jimmie) ..................................................... 933
People v Nelson (William) ..................................................... 929
People v Nettekoven .............................................................. 858
People v Nettles ..................................................................... 939
People v Nichol ...................................................................... 870
People v Nicholson ................................................................ 942
People v Niemiec ............................................................. 890, 971
People v Norris (John) .......................................................... 869
People v Norris (Philip) ........................................................ 891
People v Novak ...................................................................... 953
People v Null .......................................................................... 898
People v Obrien ..................................................................... 954
People v O’Connor ................................................................. 920
People v Odom ....................................................................... 891
People v Odoms ..................................................................... 870
People v Oliver (Ronnie) ....................................................... 858
People v Oliver (Shirley) ....................................................... 897
People v Orick ........................................................................ 967
People v Orlando ................................................................... 929
People v Orlewicz .................................................................. 916
People v Osborne ................................................................... 851
People v Ostrander ................................................................ 919
People v Ovegian ................................................................... 869
lxxvi 493 M
ICH
R
EPORTS
P
AGE
People v Pahoski .................................................................... 965
People v Palmer ..................................................................... 869
People v Parker ...................................................................... 896
People v Parks (Angelo) ........................................................ 870
People v Parks (Francis) ....................................................... 944
People v Parks (Robert) ........................................................ 952
People v Parrish (Daniel) ...................................................... 969
People v Parrish (Ryan) ........................................................ 918
People v Patridge ................................................................... 955
People v Patterson ................................................................. 940
People v Payne ....................................................................... 857
People v Pearson .................................................................... 969
People v Peikert ..................................................................... 890
People v Penfield ................................................................... 970
People v Penny ....................................................................... 872
People v Penzien .................................................................... 929
People v Perez (Jose) ............................................................. 922
People v Perez (Peter) ........................................................... 953
People v Perry (Alex) ............................................................. 896
People v Perry (Charles) ....................................................... 861
People v Perry (Gerald) ......................................................... 955
People v Peters ...................................................................... 896
People v Pfaffinger ................................................................ 919
People v Phillips (Chauncey) ................................................ 870
People v Phillips (Ryon) ........................................................ 922
People v Phillips (Simon) ...................................................... 921
People v Phipps ..................................................................... 896
People v Pillette ..................................................................... 890
People v Pinder ............................................................... 868, 931
People v Pinkney ................................................................... 969
People v Pionk ....................................................................... 852
People v Pitts ......................................................................... 917
People v Plamondon .............................................................. 892
People v Platz ........................................................................ 897
People v Poindexter ............................................................... 896
People v Pointer ..................................................................... 967
People v Polston ..................................................................... 920
People v Poole ........................................................................ 968
People v Porter (Mark) ......................................................... 972
T
ABLE OF
C
ASES
R
EPORTED
lxxvii
P
AGE
People v Porter (Michael) ..................................................... 891
People v Portis ....................................................................... 895
People v Posey ....................................................................... 952
People v Powell (Jerome) ...................................................... 955
People v Powell (Phillip) ....................................................... 896
People v Prater ...................................................................... 894
People v Preston .................................................................... 969
People v Price ........................................................................ 967
People v Prochowski .............................................................. 900
People v Proctor .............................................................. 918, 921
People v Profit ....................................................................... 897
People v Proskie .................................................................... 921
People v Pryor ....................................................................... 881
People v Puckett .................................................................... 894
People v Quick ....................................................................... 970
People v Quillan .................................................................... 917
People v Quinn ...................................................................... 891
People v Race ......................................................................... 890
People v Ragland ............................................................. 895, 957
People v Raihala .................................................................... 931
People v Ramsey (Antonio) ................................................... 882
People v Ramsey (Sean) ................................................. 919, 972
People v Randall .................................................................... 941
People v Randle ..................................................................... 897
People v Randolph ................................................................. 857
People v Ransom ................................................................... 970
People v Rao ........................................................................... 955
People v Ray .......................................................................... 870
People v Readous ................................................................... 968
People v Redmond ................................................................. 871
People v Reed ......................................................................... 881
People v Reese (Darton) ........................................................ 856
People v Reese (David) .......................................................... 930
People v Reese (Verdell) ........................................................ 897
People v Reynolds .................................................................. 890
People v Rhimes .................................................................... 855
People v Rhodes ..................................................................... 904
People v Richards .................................................................. 870
People v Richardson .............................................................. 894
lxxviii 493 M
ICH
R
EPORTS
P
AGE
People v Richey ...................................................................... 896
People v Ricks ........................................................................ 856
People v Riddle-Bey ............................................................... 891
People v Riggins .................................................................... 917
People v Rigterink ................................................................. 953
People v Rios .......................................................................... 892
People v Ritchie ..................................................................... 973
People v Ritter ....................................................................... 918
People v Rivard ...................................................................... 905
People v Rivet ........................................................................ 870
People v Rivnack ................................................................... 968
People v Roach ....................................................................... 890
People v Roberts (Brian) ....................................................... 973
People v Roberts (Nicole) ...................................................... 932
People v Robinson (J D) ....................................................... 865
People v Robinson (Richard) ................................................ 921
People v Robinson (Rodney) ................................................. 882
People v Robinson (Seth) ...................................................... 895
People v Robinson (Vernice) ................................................. 967
People v Rocca ................................................................. 855, 895
People v Roeder ..................................................................... 905
People v Rogers (Harold) ................................................ 868, 931
People v Rogers (Jimmie) ..................................................... 929
People v Rogers (Max) .......................................................... 953
People v Rogers (Raymone) .................................................. 919
People v Rogers (Sean) ......................................................... 969
People v Rossell ..................................................................... 871
People v Rowls ....................................................................... 856
People v Ruh .......................................................................... 971
People v Runion ..................................................................... 857
People v Russ ......................................................................... 968
People v Ryan ........................................................................ 865
People v Sachs ....................................................................... 920
People v Sams ........................................................................ 1016
People v Sandberg ................................................................. 930
People v Sanders (Richard) ................................................... 868
People v Sanders (Sam) ........................................................ 920
People v Sanford .................................................................... 943
People v Scherret ................................................................... 861
T
ABLE OF
C
ASES
R
EPORTED
lxxix
P
AGE
People v Scott ........................................................................ 953
People v Scroggins ................................................................. 855
People v Seaman .................................................................... 901
People v Seegars ..................................................................... 967
People v Seeman .................................................................... 921
People v Sellers ...................................................................... 892
People v Sensely .................................................................... 868
People v Settles ...................................................................... 898
People v Sexton ...................................................................... 858
People v Shelby ...................................................................... 856
People v Sherwood ................................................................. 956
People v Simmons ................................................................. 917
People v Simpson ................................................................... 955
People v Sims (Cordarrell) .................................................... 906
People v Sims (Gerald) .......................................................... 968
People v Smith (Charles) ...................................................... 870
People v Smith (Christopher) ........................................ 922, 951
People v Smith (David) ......................................................... 855
People v Smith (Devi) ........................................................... 970
People v Smith (Devon) ........................................................ 861
People v Smith (Eddie) ......................................................... 918
People v Smith (Frank) ......................................................... 921
People v Smith (Jack) ........................................................... 855
People v Smith (Jerry) .......................................................... 917
People v Smith-Anthony ....................................................... 879
People v Snerling ................................................................... 938
People v Solernorona ............................................................. 896
People v Solomon ................................................................... 856
People v Spears (Kevin) ........................................................ 857
People v Spears (Roderick) ................................................... 893
People v Spencer (Joshua) .................................................... 882
People v Spencer (William) ................................................... 939
People v Spreeman ................................................................ 858
People v Springer (Anthony) ................................................ 946
People v Springer (Marsha) .................................................. 946
People v St Ann ..................................................................... 952
People v Stallworth ......................................................... 868, 938
People v Stanton .................................................................... 971
People v Starks ...................................................................... 872
lxxx 493 M
ICH
R
EPORTS
P
AGE
People v Stevens .................................................................... 921
People v Stewart (Dequarius) ............................................... 857
People v Stewart (Douglas) ................................................... 952
People v Stiles ........................................................................ 929
People v Stillings ................................................................... 895
People v Stokes ...................................................................... 970
People v Sturgess ................................................................... 967
People v Sudduth ................................................................... 856
People v Sullivan ................................................................... 928
People v Sutton ............................................................... 893, 897
People v Swanigan ................................................................. 882
People v Sweet ................................................................ 852, 858
People v Sword ...................................................................... 942
People v Szymkowkiak .......................................................... 968
People v Tackett .................................................................... 897
People v Talbert ..................................................................... 857
People v Tanner ..................................................................... 958
People v Tarver ...................................................................... 919
People v Tate ......................................................................... 855
People v Taylor (Alan) .......................................................... 1015
People v Taylor (India) .......................................................... 929
People v Taylor (James) ................................................. 901, 957
People v Taylor (Keondo) ...................................................... 854
People v Taylor (Marquis) .................................................... 855
People v Taylor (McArthur) .................................................. 894
People v Taylor (Michael) ..................................................... 969
People v Taylor (Melvin) ....................................................... 942
People v Taylor (Steven) ....................................................... 891
People v Terpstra ................................................................... 898
People v Thatcher .................................................................. 892
People v Thayer ..................................................................... 882
People v Thomas (Archie) ..................................................... 855
People v Thomas (B J) ................................................... 895, 944
People v Thomas (Darius) .................................................... 925
People v Thomas (Jamal) ...................................................... 967
People v Thomas (Jasen) ...................................................... 952
People v Thomas (Javon) ...................................................... 918
People v Thomas (Shannon) ................................................. 892
People v Thomas (Timothy) ................................................. 894
T
ABLE OF
C
ASES
R
EPORTED
lxxxi
P
AGE
People v Thomas (Waymond) ............................................... 916
People v Thompson (Alan) .................................................... 881
People v Thompson (Ernest) ................................................ 941
People v Thompson (Robert) ................................................ 898
People v Thornsberry ............................................................ 929
People v Tighe ....................................................................... 855
People v Tillery ...................................................................... 869
People v Tillman .................................................................... 941
People v Times ....................................................................... 869
People v Tomlinson ............................................................... 968
People v Toth ......................................................................... 928
People v Townsend (Don) ..................................................... 859
People v Townsend (Phillip) .......................................... 868, 931
People v Trakhtenberg ........................................ 38
People v Treadwell ................................................................ 869
People v Tremain ................................................................... 928
People v Tucker ..................................................................... 868
People v Turner (David) ....................................................... 968
People v Turner (Don) .......................................................... 855
People v Turpen ..................................................................... 942
People v Tuttle ...................................................................... 950
People v Twietmeyer ............................................................. 856
People v Urbina ..................................................................... 922
People v Usher ....................................................................... 918
People v VanBroklin .............................................................. 920
People v Vance ....................................................................... 970
People v VanZant ................................................................... 892
People v Vartinelli ........................................................... 918, 957
People v Vaughn (Ricky) ....................................................... 898
People v Vaughn (Stephen) ................................................... 970
People v Vega ......................................................................... 953
People v Veilleux .................................................................... 914
People v Velez ........................................................................ 929
People v Vonhabsburg-Lothringen ....................................... 854
People v Vore ......................................................................... 857
People v Wade ........................................................................ 854
People v Walker (Corey) ........................................................ 955
People v Walker (Robert) ...................................................... 870
People v Wallace .................................................................... 856
lxxxii 493 M
ICH
R
EPORTS
P
AGE
People v Wallager .................................................................. 895
People v Walton ..................................................................... 872
People v Ward .................................................................. 891, 943
People v Washington (Kalvin) .............................................. 869
People v Washington (Peno) ................................................. 895
People v Washington (Tamerra) ........................................... 970
People v Washington (Vincent) ............................................ 954
People v Watkins ................................................................... 890
People v Watts ....................................................................... 856
People v Weaver ..................................................................... 894
People v Webb ........................................................................ 904
People v Welch ....................................................................... 953
People v Wellman .................................................................. 891
People v Wellons .................................................................... 968
People v Whaley ..................................................................... 868
People v Whatman ................................................................. 865
People v White ..................................................... 187
People v White ....................................................................... 962
People v Whitney ................................................................... 905
People v Wicker ..................................................................... 967
People v Wilbert .................................................................... 941
People v Wilburn ................................................................... 890
People v Wilcher .............................................................. 870, 943
People v Wilding .................................................................... 932
People v Wilford ..................................................................... 969
People v Wilkinson ................................................................ 892
People v Willford ................................................................... 939
People v Williams (Brandon) ................................................ 894
People v Williams (Deondra’) ............................................... 895
People v Williams (Frederick) .............................................. 855
People v Williams (Irmon) .................................................... 894
People v Williams (Joe) ......................................................... 857
People v Williams (John) ...................................................... 896
People v Williams (Johnny) ............................................ 876, 965
People v Williams (Justin) .................................................... 969
People v Williams (Marcell) .................................................. 898
People v Williams (Najee) ..................................................... 896
People v Williams (Percel) .................................................... 895
People v Williams (Roosevelt) ............................................... 855
T
ABLE OF
C
ASES
R
EPORTED
lxxxiii
P
AGE
People v Williams (Shavontae) ............................................. 954
People v Wills ......................................................................... 901
People v Wilson (Donovan) ................................................... 928
People v Wilson (Efrem) ....................................................... 894
People v Wilson (Jerome) ...................................................... 856
People v Wilson (Victor) ........................................................ 882
People v Wilson (Woodrow) .................................................. 953
People v Winfield ................................................................... 855
People v Winston ................................................................... 858
People v Wise ......................................................................... 869
People v Witt .......................................................................... 895
People v Woodard .................................................................. 919
People v Woods ...................................................................... 893
People v Woolworth ............................................................... 918
People v Wright (James Michael) ......................................... 901
People v Wright (James Thomas) ........................................ 858
People v Wright (Willie) ................................................. 870, 943
People v Wulff ........................................................................ 894
People v Wylie ........................................................................ 891
People v Wynn ....................................................................... 921
People v Ybarra ..................................................................... 862
People v Young (Anthony) .................................................... 918
People v Young (Demarcus) .................................................. 890
People v Young (Idris) ........................................................... 852
People v Young (Shawn) ....................................................... 968
People v Zajaczkowski ......................................... 6
People v Zamora .................................................................... 854
People v Zavaleta ................................................................... 855
People v Zimmer .................................................................... 895
People v Zoica ........................................................................ 867
People of the City of Bay City v Hampton .......................... 953
People of the City of Troy v Haggarty ................................. 953
Peoples Choice Home Loan, Inc, Countrywide Home
Loans, Inc v ....................................................................... 854
Peppler v Peppler Agency, Inc .............................................. 872
Peppler Agency, Inc, Peppler v ............................................. 872
Perez, People v (Jose) ............................................................ 922
Perez, People v (Peter) .......................................................... 953
Perkovic v Hudson Ins Co .................................................... 971
lxxxiv 493 M
ICH
R
EPORTS
P
AGE
Perry, People v (Alex) ............................................................ 896
Perry, People v (Charles) ....................................................... 861
Perry, People v (Gerald) ........................................................ 955
Peters, People v ..................................................................... 896
Pfaffinger, People v ................................................................ 919
Phillips, Gansen v ................................................................. 854
Phillips, People v (Chauncey)................................................ 870
Phillips, People v (Ryon) ....................................................... 922
Phillips, People v (Simon) ..................................................... 921
Phipps, People v .................................................................... 896
Pillette, People v .................................................................... 890
Pinder, People v ............................................................... 868, 931
Pinkney, People v ................................................................... 969
Pionk, People v ...................................................................... 852
Pitsch Recycling & Disposal, Inc v Ionia County ............... 971
Pitts, People v ........................................................................ 917
Plamondon, People v ............................................................. 892
Plants, Grievance Administrator v ...................................... 880
Platz, People v ....................................................................... 897
Poindexter, People v .............................................................. 896
Pointer, People v .................................................................... 967
Police & Fire Retirement System of the City of Detroit v
Paramount Limited, LLC ................................................. 1022
Polish Deli & Bakery, Inc, Obrzut v .................................... 970
Polk, Canton Charter Twp v ................................................ 894
Polston, People v .................................................................... 920
Ponte v Hazlett ...................................................................... 928
Pontiac Ed Ass’n, Pontiac School Dist v ............................. 861
Pontiac School Dist v Pontiac Ed Ass’n .............................. 861
Poole, People v ....................................................................... 968
Porter v Niswonger ............................................................... 897
Porter, People v (Mark) ......................................................... 972
Porter, People v (Michael) ..................................................... 891
Portis, People v ...................................................................... 895
Posey, People v ....................................................................... 952
Powell, People v (Jerome) ..................................................... 955
Powell, People v (Phillip) ...................................................... 896
Prater, People v ...................................................................... 894
Premier Center of Canton v North American Specialty
T
ABLE OF
C
ASES
R
EPORTED
lxxxv
P
AGE
Ins Co ................................................................................ 854
Preston, People v ................................................................... 969
Price, People v ....................................................................... 967
Prochowski, People v ............................................................. 900
Proctor, People v ............................................................. 918, 921
Professional Temperature Heating & Air Conditioning,
Inc, Citizens Ins Co of America v ................................... 954
Profit, People v ...................................................................... 897
Progressive Michigan Ins Co, Bronson Methodist
Hospital v .......................................................................... 939
Proskie, People v ................................................................... 921
Pryor, People v ....................................................................... 881
Public School Employees’ Retirement Bd, Goodenow v .... 852
Public Service Comm, Attorney General v .......................... 946
Public Storage Inc, Daniel v .......................................... 871, 944
Puckett, People v ................................................................... 894
Pugh v Crowley ..................................................................... 858
Pugsley Correctional Facility Warden, Moore v .................. 918
Q
Quick, People v ...................................................................... 970
Quillan, People v ................................................................... 917
Quinn, People v ..................................................................... 891
R
R&MVentures, LLC v Wonsey Estate .............................. 929
RBS Construction, Inc, E T MacKenzie Co v ..................... 872
RDC Enterprises, LLC, Walgreen Co v ......................... 868, 930
RDD Investment Corp, Warner Norcross & Judd, LLP v .... 956
Race, People v ........................................................................ 890
Radford v Hurley Health Services ....................................... 941
Ragland, People v ............................................................ 895, 957
Raihala, People v ................................................................... 931
Rambin v Allstate Ins Co ...................................................... 973
Ramondetta,M&TBank v ................................................. 951
Ramsey v Laborers Local 1191 ............................................ 934
Ramsey, People v (Antonio) .................................................. 882
Ramsey, People v (Sean) ................................................. 919, 972
Ramsey v University of Michigan Bd of Regents ............... 869
lxxxvi 493 M
ICH
R
EPORTS
P
AGE
Randall, People v ................................................................... 941
Randle, People v .................................................................... 897
Randolph, People v ................................................................ 857
Ransom, People v .................................................................. 970
Rao, People v .......................................................................... 955
Raszkowski v Consumers Energy Co ................................... 944
Ray, People v .......................................................................... 870
Read Lumber & Hardware Inc v Lamkin ........................... 938
Readous, People v .................................................................. 968
Redmond, People v ................................................................ 871
Redwood Dental Group, Evans v ......................................... 920
Reed, People v ........................................................................ 881
Reese, People v (Darton) ....................................................... 856
Reese, People v (David) ......................................................... 930
Reese, People v (Verdell) ....................................................... 897
Rehmann Group, Inc, Old CF, Inc v .................................... 930
Request for Advisory Opinion Regarding Constitutionality
of 2012 PA 348 and 2012 PA 349, In re .............................. 1016
Res-Care Premier, Inc, Woodbury v ..................................... 881
Reynolds, People v ................................................................. 890
Rhimes, People v ................................................................... 855
Rhodes, City of Southfield v ................................................. 893
Rhodes, People v .................................................................... 904
Rice v Rice .............................................................................. 969
Richard A Handlon Correctional Facility Warden, Ortiz v .... 896
Richards, People v ................................................................. 870
Richardson, People v ............................................................. 894
Richey, People v ..................................................................... 896
Ricks, People v ....................................................................... 856
Riddle-Bey, People v .............................................................. 891
Riggins, People v ................................................................... 917
Rigterink, People v ................................................................ 953
Rimbey, United Services Automobile Ass’n v ..................... 932
Rios, People v ......................................................................... 892
Ritchie, People v .................................................................... 973
Ritter, People v ...................................................................... 918
Rivard, People v ..................................................................... 905
River Rouge (City of) v City of Ecorse ................................ 929
Rivet, People v ....................................................................... 870
T
ABLE OF
C
ASES
R
EPORTED
lxxxvii
P
AGE
Rivnack, People v .................................................................. 968
Roach v GMAC Mortgage, LLC ............................................ 966
Roach, People v ...................................................................... 890
Robbins v Village Crest Condominium Ass’n ..................... 945
Roberts, People v (Brian) ...................................................... 973
Roberts, People v (Nicole) ..................................................... 932
Robinson, People v (J D) ...................................................... 865
Robinson, People v (Richard) ............................................... 921
Robinson, People v (Rodney) ................................................ 882
Robinson, People v (Seth) ..................................................... 895
Robinson, People v (Vernice) ................................................ 967
Rocca, People v ................................................................ 855, 895
Rodenhiser v Duenas ............................................................ 856
Rodriguez v Bank of America ............................................... 902
Roeder, People v ..................................................................... 905
Rogers, Bedford v .................................................................. 858
Rogers, International Transmission Co v ........................... 854
Rogers, People v (Harold) ............................................... 868, 931
Rogers, People v (Jimmie) .................................................... 929
Rogers, People v (Max) ......................................................... 953
Rogers, People v (Raymone) ................................................. 919
Rogers, People v (Sean) ........................................................ 969
Romulus (City of), Orco Investments, Inc v ....................... 928
Romulus (City of) v Wayne County ..................................... 856
Roscommon County Judge, Victor v .................................... 871
Rossell, People v .................................................................... 871
Rowls, People v ...................................................................... 856
Royal Oak Twp, Smith v ...................................................... 925
Ruby & Associates v George W Smith & Co, PC ............... 854
Rugiero v Dinardo ................................................................. 957
Ruh, People v ......................................................................... 971
Runion, People v .................................................................... 857
Russ, People v ........................................................................ 968
Russell, In re .......................................................................... 864
Ryan, People v ....................................................................... 865
S
S M Hong Associates, Inc, Miller v ...................................... 925
SCP, In re ................................................................................ 959
lxxxviii 493 M
ICH
R
EPORTS
P
AGE
SDW Holdings Corp, Mihalovits v ....................................... 882
SMK, LLC v Dep’t of Treasury ............................................ 948
Saad v Aurora Loan Services, LLC ...................................... 938
Sabatos v Cherrywood Lodge, Inc ........................................ 972
Sachs, People v ...................................................................... 920
Salem Springs, LLC v Salem Twp ....................................... 880
Salem Twp, Salem Springs, LLC v ...................................... 880
Sallie v Fifth Third Bank ..................................................... 871
Sams, People v ....................................................................... 1016
Sandberg, People v ................................................................ 930
Sanders, In re ........................................................................ 959
Sanders, People v (Richard) .................................................. 868
Sanders, People v (Sam) ....................................................... 920
Sanford, People v ................................................................... 943
Sasak, In re ............................................................................ 852
Scharnitzke v Coca-Cola Enterprises .................................. 947
Scherret, People v .................................................................. 861
Scott, People v ....................................................................... 953
Scroggins, People v ................................................................ 855
Seaman, People v ................................................................... 901
Seegars, People v .................................................................... 967
Seeman, People v ................................................................... 921
Seldon v Suburban Mobility Auth for Regional
Transportation .................................................................. 905
Sellers, People v ..................................................................... 892
Sensely, People v .................................................................... 868
Settles, People v ..................................................................... 898
7800 W Outer Rd Holding, LLC v College Park Partners,
LLC .................................................................................... 967
Sexton, People v ..................................................................... 858
Sexton-Walker v Great Expressions Dental Centers,
PC ................................................................................ 901, 956
Sharma v Ascension Health, Inc .......................................... 893
Sheets, DeMeyer v ................................................................. 871
Shelby, People v ..................................................................... 856
Shelby Twp, Command Officers Ass’n of Michigan v ........ 861
Sherwood, People v ................................................................ 956
Shipman v Stout Risius Ross, Inc ........................................ 952
Sholberg Estate, In re ........................................................... 974
T
ABLE OF
C
ASES
R
EPORTED
lxxxix
P
AGE
Simmons, People v ................................................................ 917
Simon v Simon ....................................................................... 867
Simpson v JPMorgan Chase Bank ....................................... 871
Simpson, North Pointe Ins Co v .......................................... 929
Simpson, People v .................................................................. 955
Sims, People v (Cordarrell) ................................................... 906
Sims, People v (Gerald) ......................................................... 968
Singh, Dykes v ....................................................................... 939
Sinta v McDonald .................................................................. 946
Slay Estate, International Transmission Co v .................... 854
Slomka v Hamtramck Housing Comm ................................ 953
Smith v Dep’t of Human Services Director .......... 853, 926, 947
Smith v Eaton Corp Torque Controls .................................. 942
Smith, International Transmission Co v ............................. 854
Smith, People v (Charles) ..................................................... 870
Smith, People v (Christopher) ....................................... 922, 951
Smith, People v (David) ........................................................ 855
Smith, People v (Devi) .......................................................... 970
Smith, People v (Devon) ....................................................... 861
Smith, People v (Eddie) ........................................................ 918
Smith, People v (Frank) ........................................................ 921
Smith, People v (Jack) .......................................................... 855
Smith, People v (Jerry) ......................................................... 917
Smith v Royal Oak Twp ....................................................... 925
Smith v Suburban Mobility Auth for Regional
Transportation .................................................................. 906
Smith-Anthony, People v ....................................................... 879
Snerling, People v .................................................................. 938
Snow, Burgler v ..................................................................... 869
Social Security Comm’r, Mattison v (In re
Certified Question from the United States
Dist Court for the Western Dist of Michigan) .. 70
Social Security Comm’r, Mattison v (In re Certified
Question From the United States Dist Court for the
Western Dist of Michigan) ............................................... 853
Solernorona, People v ............................................................ 896
Solomon, People v .................................................................. 856
South Lyon (City of), South Lyon Woods Associates, LLC v . 953
South Lyon Woods Associates, LLC v City of South
Lyon ................................................................................... 953
xc 493 M
ICH
R
EPORTS
P
AGE
Southfield (City of) v Rhodes ............................................... 893
Spada, Jackson-El v .............................................................. 897
Speaker of the House of Representatives, State
Representative Richard Hammel v ................................. 973
Spears, People v (Kevin) ....................................................... 857
Spears, People v (Roderick) .................................................. 893
Speelman v City of Lansing .................................................. 974
Spencer, People v (Joshua) ................................................... 882
Spencer, People v (William) .................................................. 939
Spreeman, People v ............................................................... 858
Springer, People v (Anthony) ................................................ 946
Springer, People v (Marsha) ................................................. 946
St Ann, People v .................................................................... 952
St John Health System-Detroit-Macomb Campus,
Engelhardt v ..................................................................... 958
Staffney v Kinross Correctional Facility Warden ............... 951
Stallworth, People v ........................................................ 868, 938
Stanowski, Hamood v ............................................................ 969
Stansky v Gwinn Area Community Schools ....................... 968
Stanton, People v ................................................................... 971
Stark Reagan, PC, Hall v ...................................................... 903
Starks, People v ..................................................................... 872
State Farm Mutual Automobile Ins, Titan Ins
Co v .................................................................................... 858
State Farm Mutual Automobile Ins Co, Hodge v ............... 937
State Farm Mutual Automobile Ins Co, LeFevers v .... 865, 960
State of Michigan, AFT Michigan v ..................................... 884
State of Michigan, Home Depot USA, Inc v ....................... 870
State of Michigan, Langton v ............................................... 972
State of Michigan v McQueen ............................ 135
State of Michigan, Michigan Ass’n of Governmental
Employees v ...................................................................... 860
State of Michigan, Michigan Film Coalition v .................... 944
State Representative Richard Hammel v Speaker of the
House of Representatives ................................................ 973
Stevens, People v ................................................................... 921
Stewart, People v (Dequarius) .............................................. 857
Stewart, People v (Douglas) .................................................. 952
T
ABLE OF
C
ASES
R
EPORTED
xci
P
AGE
Stiles, People v ....................................................................... 929
Stillings, People v .................................................................. 895
Stokes, People v ..................................................................... 970
Stout Risius Ross, Inc, Shipman v ....................................... 952
Sturgess, People v .................................................................. 967
Suburban Mobility Auth for Regional Transportation,
Atkins v ............................................................................. 877
Suburban Mobility Auth for Regional Transportation,
Duffield v ........................................................................... 866
Suburban Mobility Auth for Regional Transportation,
Herry v .............................................................................. 870
Suburban Mobility Auth for Regional Transportation,
Seldon v ............................................................................. 905
Suburban Mobility Auth for Regional Transportation,
Smith v .............................................................................. 906
Suburban Mobility Auth for Regional Transportation,
Weiss v ............................................................................... 921
Sudduth, People v .................................................................. 856
Sullivan, People v .................................................................. 928
Sulowska v Albert Trostel & Sons Co ................................. 897
Summerfield Twp, Brown v .................................................. 939
Sutton, People v .............................................................. 893, 897
Swanigan, People v ................................................................ 882
Sweet, People v ............................................................... 852, 858
Sword, People v ..................................................................... 942
Szymkowkiak, People v ......................................................... 968
T
TD, In re ................................................................................. 873
TMW Enterprises, Inc v Dep’t of Treasury ........................ 952
Tackett, People v ................................................................... 897
Talbert, People v .................................................................... 857
Tanner, People v .................................................................... 958
Tarver, People v ..................................................................... 919
Tate, People v ........................................................................ 855
Taylor, People v (Alan) .......................................................... 1015
Taylor, People v (India) ......................................................... 929
Taylor, People v (James) ................................................. 901, 957
xcii 493 M
ICH
R
EPORTS
P
AGE
Taylor, People v (Keondo) ..................................................... 854
Taylor, People v (Marquis) .................................................... 855
Taylor, People v (McArthur) ................................................. 894
Taylor, People v (Melvin) ...................................................... 942
Taylor, People v (Michael) ..................................................... 969
Taylor, People v (Steven) ...................................................... 891
Techner v Greenberg ............................................................. 897
Ter Beek v City of Wyoming ................................................ 957
Terpstra, People v .................................................................. 898
Thatcher, People v ................................................................. 892
Thayer, People v .................................................................... 882
35160 Jefferson Avenue, LLC v Harrison Charter Twp .... 938
36th Dist Court v Michigan American Federation of
State, County & Municipal Employees Council 25,
Local 917 ........................................................................... 879
Thom v Palushaj ............................................................. 865, 931
Thomas v Dep’t of Treasury ................................................ 920
Thomas, People v (Archie) .................................................... 855
Thomas, People v (B J) .................................................. 895, 944
Thomas, People v (Darius) ................................................... 925
Thomas, People v (Jamal) ..................................................... 967
Thomas, People v (Jasen) ..................................................... 952
Thomas, People v (Javon) ..................................................... 918
Thomas, People v (Shannon) ................................................ 892
Thomas, People v (Timothy) ................................................ 894
Thomas, People v (Waymond) .............................................. 916
Thomas Sebold & Associates, Inc, Van Elslander v ........... 871
Thompson, Anderson v ......................................................... 869
Thompson, People v (Alan) ................................................... 881
Thompson, People v (Ernest) ............................................... 941
Thompson, People v (Robert) ............................................... 898
Thornsberry, People v ........................................................... 929
Ticor Title Ins Co, U S Bank National Ass’n v .................. 928
Tiemann, In re ....................................................................... 958
Tighe, People v ...................................................................... 855
Tillery, People v ..................................................................... 869
Tillman, People v ................................................................... 941
Times, People v ...................................................................... 869
Titan Ins Co v Auto-Owners Ins Co .................................... 873
T
ABLE OF
C
ASES
R
EPORTED
xciii
P
AGE
Titan Ins Co v State Farm Mutual Automobile Ins ........... 858
Tomlinson, People v .............................................................. 968
Torres v Ferrous Processing & Trading Co ........................ 941
Torres v Kinross Correctional Facility Warden .................. 956
Toth, People v ........................................................................ 928
Tower Automotive Operations USA III, LLC, JH
Business Consultants, Inc v ............................................. 951
Townsend, People v (Don) .................................................... 859
Townsend, People v (Phillip) ......................................... 868, 931
Trackhtenberg v McKelvy .................................................... 946
Trakhtenberg, People v ....................................... 38
Treadwell, People v ............................................................... 869
Treasury (Dep’t of), Andrie, Inc v ................................. 900, 901
Treasury (Dep’t of), CCXLS, LLC v .................................... 968
Treasury (Dep’t of), Chrysler Financial Services
Americas, LLC v ......................................................... 866, 919
Treasury (Dep’t of), Eastbrook Homes, Inc v .............. 882, 931
Treasury (Dep’t of), Fradco, Inc v ....................................... 948
Treasury (Dep’t of), Huzella v ............................................. 865
Treasury (Dep’t of), Krueger v ............................................. 917
Treasury (Dep’t of), Malpass v ............................................. 864
Treasury (Dep’t of), SMK, LLC v ........................................ 948
Treasury (Dep’t of), TMW Enterprises, Inc v ..................... 952
Treasury (Dep’t of), Thomas v ............................................. 920
Treasury (Dep’t of), Wheeler Estate v ................................. 865
Treasury (Dep’t of), Wheeler v ............................................. 865
Treasury (Dep’t of), Wright v ............................................... 865
Tremain, People v .................................................................. 928
Trierweiler v Gross ............................................................... 867
Trinity Continuing Care Services, Buhalis v ...................... 901
Trinity Health Michigan, Huddleston v .............................. 958
Truss v Oaks Correctional Facility Warden ........................ 940
Tucker, In re .......................................................................... 925
Tucker, People v .................................................................... 868
Turner, People v (David) ....................................................... 968
Turner, People v (Don) .......................................................... 855
Turpen, People v .................................................................... 942
Tuttle, People v ..................................................................... 950
Twietmeyer, People v ............................................................ 856
xciv 493 M
ICH
R
EPORTS
P
AGE
Twp of Mt Morris, Landon v ................................................ 951
U
U S Bank National Ass’n v Ticor Title Ins Co ................... 928
US Motors v General Motors Europe ........................... 866, 931
Unit 67, LLC v Hudson ........................................................ 940
United Services Automobile Ass’n v Rimbey ...................... 932
University of Michigan Bd of Regents, Ramsey v .............. 869
University of Michigan Regents, Lemerand v .................... 900
Urbina, People v .................................................................... 922
Usher, People v ...................................................................... 918
Utley v Washtenaw County Bd of County Rd Comm’rs .... 857
V
VMG, Inc v Byron Twp ......................................................... 895
VanBroklin, People v ............................................................. 920
Vance, People v ...................................................................... 970
Van Elslander v Thomas Sebold & Associates, Inc ............ 871
VanSlembrouck v Halperin ............................................ 902, 943
Van Tol, Magennis & Lang, Inc v Woodward ...................... 952
VanZant, People v .................................................................. 892
Vartinelli, People v .......................................................... 918, 957
Vaughn, People v (Ricky) ...................................................... 898
Vaughn, People v (Stephen) .................................................. 970
Vega, People v ........................................................................ 953
Veilleux, People v ................................................................... 914
Velez, People v ....................................................................... 929
Victor v Roscommon County Judge ..................................... 871
Village Crest Condominium Ass’n, Robbins v .................... 945
Village of Cassopolis, Patton v ............................................. 917
Vittiglio v Vittiglio ................................................................. 936
Vonhabsburg-Lothringen, People v ...................................... 854
Vore, People v ........................................................................ 857
Vrooman v Ford Motor Co .................................................... 942
Vucaj v CM Transportation, Inc ........................................... 922
W
Wade, People v ....................................................................... 854
Walgreen Co, Jessee v ........................................................... 954
T
ABLE OF
C
ASES
R
EPORTED
xcv
P
AGE
Walgreen Co v RDC Enterprises, LLC .......................... 868, 930
Walgreens Co, Moore v ......................................................... 956
Walker v Geico General Ins Co ............................................ 941
Walker, People v (Corey) ....................................................... 955
Walker, People v (Robert) ..................................................... 870
Wallace, People v ................................................................... 856
Wallager, People v .................................................................. 895
Walters, Buchanan v ............................................................. 930
Walton, People v .................................................................... 872
Ward, People v ................................................................. 891, 943
Warden, Baraga Correctional Facility, Cromer v ................ 967
Warner Norcross & Judd, LLP v RDD Investment Corp .. 956
Washington, People v (Kalvin) ............................................. 869
Washington, People v (Peno) ................................................ 895
Washington, People v (Tamerra) .......................................... 970
Washington, People v (Vincent) ........................................... 954
Washtenaw County Bd of County Rd Comm’rs, Utley v ... 857
Waters Drain Drainage Dist, In re ....................................... 871
Watkins, People v .................................................................. 890
Watts, People v ...................................................................... 856
Wayne County, AFSCME Local 25 v .................................... 899
Wayne County, City of Romulus v ....................................... 856
Wayne County Deputy Sheriff, Gentry v ............................. 872
Weaver, People v .................................................................... 894
Webb, People v ....................................................................... 904
Weiss v Suburban Mobility Auth for Regional
Transportation .................................................................. 921
Welch, People v ...................................................................... 953
Wellman, People v ................................................................. 891
Wellons, People v ................................................................... 968
Wells Fargo Bank v Cherryland Mall Ltd Partnership ...... 859
Wendy Sabo & Associates, Inc v American Associates,
Inc ...................................................................................... 970
West Shoreline Correctional Facility Warden, Dunn v ....... 951
Westfield Ins Co v Allstate Ins Co ....................................... 894
Westfield Ins Co v Ken’s Service .......................................... 880
Whaley, People v .................................................................... 868
Whatman, People v ................................................................ 865
Wheeler v Dep’t of Treasury ................................................ 865
xcvi 493 M
ICH
R
EPORTS
P
AGE
Wheeler Estate v Dep’t of Treasury .................................... 865
White, People v .................................................... 187
White, People v ...................................................................... 962
Whitman v City of Burton .................................. 303
Whitney, People v .................................................................. 905
Wicker, People v ..................................................................... 967
Widenbaum, Grievance Administrator v ....................... 901, 957
Wilbert, People v ................................................................... 941
Wilburn, People v .................................................................. 890
Wilcher, People v ............................................................. 870, 943
Wilding, People v ................................................................... 932
Wilford, People v .................................................................... 969
Wilkinson, People v ............................................................... 892
Willford, People v .................................................................. 939
Williams, People v (Brandon) ............................................... 894
Williams, People v (Deondra’) .............................................. 895
Williams, People v (Frederick) ............................................. 855
Williams, People v (Irmon) ................................................... 894
Williams, People v (Joe) ........................................................ 857
Williams, People v (John) ..................................................... 896
Williams, People v (Johnny) ........................................... 876, 965
Williams, People v (Justin) ................................................... 969
Williams, People v (Marcell) ................................................. 898
Williams, People v (Najee) .................................................... 896
Williams, People v (Percel) ................................................... 895
Williams, People v (Roosevelt) .............................................. 855
Williams, People v (Shavontae) ............................................ 954
Willowbrook Rehabilitation Services v Lerner ................... 880
Wills, People v ........................................................................ 901
Wilson v King ........................................................................ 955
Wilson, People v (Donovan) .................................................. 928
Wilson, People v (Efrem) ...................................................... 894
Wilson, People v (Jerome) ..................................................... 856
Wilson, People v (Victor) ....................................................... 882
Wilson, People v (Woodrow) ................................................. 953
Winfield, People v .................................................................. 855
Winston, People v .................................................................. 858
Wireless Toyz Franchise, LLC v Clear Choice
Communication, Inc ......................................................... 933
T
ABLE OF
C
ASES
R
EPORTED
xcvii
P
AGE
Wise, People v ........................................................................ 869
Witt, People v ......................................................................... 895
Wixom Builders Supply, Inc, Johns v .................................. 921
Wlezniak, Goldberg v ............................................................ 929
Wonsey Estate,R&MVentures, LLC v ............................. 929
Woodard, People v ................................................................. 919
Woodbury v Res-Care Premier, Inc ...................................... 881
Woods, People v ..................................................................... 893
Woodward, Van Tol, Magennis & Lang, Inc v ..................... 952
Woolworth, People v .............................................................. 918
Wright v Dep’t of Treasury .................................................. 865
Wright, People v (James Michael) ........................................ 901
Wright, People v (James Thomas) ....................................... 858
Wright, People v (Willie) ................................................ 870, 943
Wulff, People v ....................................................................... 894
Wylie, People v ....................................................................... 891
Wynn, People v ...................................................................... 921
Wyoming Chiropractic Health Clinic v Auto-Owners Ins
Co ....................................................................................... 930
Wyoming (City of), Ter Beek v ............................................. 957
Y
Ybarra, People v .................................................................... 862
Yergeau v Bleich .................................................................... 861
Young, People v (Anthony) ................................................... 918
Young, People v (Demarcus) ................................................. 890
Young, People v (Idris) .......................................................... 852
Young, People v (Shawn)........................................................ 968
Z
Zajaczkowski, People v ........................................ 6
Zamora, People v ................................................................... 854
Zavaleta, People v .................................................................. 855
Zimmer, People v ................................................................... 895
Zoica, People v ....................................................................... 867
Zunich v Family Medicine Associates of Midland ............... 893
Zunich v MidMichigan Medical Center-Midland ................ 893
xcviii 493 M
ICH
R
EPORTS
TABLE OF SPECIAL ORDERS
NOT RELATED TO CASES
P
AGE
P
ROPOSED
A
DMINISTRATIVE
O
RDER
2013-X...................................................................................1219
2013-___ .....................................................................1230, 1231
P
ROPOSED
A
MENDMENTS OF
M
ICHIGAN
C
OURT
R
ULES
MCR 2.112 ........................................................................ 1220
MCR 2.302 ........................................................................ 1224
MCR 2.403 ....................................................................... 1221
MCR 2.512 ....................................................................... 1206
MCR 2.621 ........................................................................ 1232
MCR 2.622 ........................................................................ 1232
MCR 2E.001...................................................................... 1238
MCR 3.193 ....................................................................... 1207
MCR 3.210 ........................................................................ 1244
MCR 3.215 ........................................................................ 1244
MCR 3.218 ........................................................................ 1226
MCR 3.616 ........................................................................ 1201
MCR 3.913 ....................................................................... 1207
MCR 3.925 ....................................................................... 1202
MCR 3.963 ....................................................................... 1207
MCR 3.965 ....................................................................... 1207
MCR 3.974 ....................................................................... 1207
MCR 3.976 ....................................................................... 1204
MCR 6.104 ........................................................................ 1244
MCR 6.302 ....................................................................... 1214
MCR 6.310 ....................................................................... 1214
MCR 7.105 ....................................................................... 1222
MCR 7.111 ....................................................................... 1222
MCR 7.203 ....................................................................... 1216
MCR 7.205 ....................................................................... 1222
MCR 7.313 ........................................................................ 1229
MCR 8.110 ........................................................................ 1216
xcix
P
AGE
MCR 8.111 ........................................................................ 1218
MCR 8.124 ........................................................................ 1244
MCR 9.221 ........................................................................ 1248
c
TABLE OF ADMINISTRATIVE ORDERS
AND RULES ADOPTED
A
DMINISTRATIVE
O
RDERS
No. 2012-2........................................................................................... civ
No. 2012-3 ............................................................................................ cv
No. 2012-4........................................................................................... cvi
No. 2012-5.......................................................................................... cvii
No. 2012-6........................................................................................... cix
No. 2012-7 ............................................................................................ cx
No. 2013-1......................................................................................... cxiii
No. 2013-2 ......................................................................................... cxiv
No. 2013-3 .......................................................................................... cxv
No. 2013-4 ......................................................................................... cxvi
No. 2013-5........................................................................................ cxvii
A
DMINISTRATIVE
O
RDERS
A
MENDED
No. 1989-1....................................................................................... cxviii
No. 2010-3 ......................................................................................... cxxi
No. 2010-4....................................................................................... cxxiii
No. 2010-6 ...................................................................................... cxxxv
No. 2011-1............................................................................................ cli
No. 2011-4.......................................................................................... cliii
R
ULES
A
DOPTED
M
ICHIGAN
C
OURT
R
ULES OF
1985
MCR 1.109........................................................................................ clxix
MCR 2.105 ................................................................................. clxxxviii
MCR 2.107........................................................................................ clxix
MCR 2.113........................................................................................ clxix
MCR 2.114........................................................................................ clxix
MCR 2.116 ........................................................................................ clxii
MCR 2.302........................................................................................ clxix
MCR 2.518........................................................................................ clxix
MCR 2.603 ........................................................................................ clxii
MCR 3.001........................................................................................ clxix
ci
MCR 3.002....................................................................................... cxciv
MCR 3.101........................................................................................ clxvi
MCR 3.218........................................................................................ clxix
MCR 3.616....................................................................................... cxciii
MCR 3.800 ............................................................................. clxix, cxciv
MCR 3.802....................................................................................... cxciv
MCR 3.807....................................................................................... cxciv
MCR 3.901........................................................................................ clxix
MCR 3.903 ............................................................................. clxix, cxciv
MCR 3.905....................................................................................... cxciv
MCR 3.920....................................................................................... cxciv
MCR 3.921....................................................................................... cxciv
MCR 3.925 ................................................................................. clxxxviii
MCR 3.930........................................................................................ clxix
MCR 3.935....................................................................................... cxciv
MCR 3.961........................................................................................cxciv
MCR 3.963....................................................................................... cxciv
MCR 3.965....................................................................................... cxciv
MCR 3.967....................................................................................... cxciv
MCR 3.974....................................................................................... cxciv
MCR 3.976......................................................................................... cxci
MCR 3.977....................................................................................... cxciv
MCR 3.979 ....................................................................................... clxiii
MCR 4.001........................................................................................ clxix
MCR 5.101........................................................................................ clxix
MCR 5.113........................................................................................ clxix
MCR 5.402....................................................................................... cxciv
MCR 5.731........................................................................................ clxix
MCR 6.001 ......................................................................................... clix
MCR 6.007........................................................................................ clxix
MCR 6.202 ......................................................................................... clix
MCR 6.302................................................................................... clxxxvii
MCR 6.419....................................................................................... ccxvi
MCR 7.118....................................................................................... ccxvi
MCR 7.210................................................................................... clxxxvii
MCR 8.108........................................................................................ clxix
MCR 8.119........................................................................................ clxix
MCR 9.113........................................................................................ clxvi
L
OCAL
C
OURT
R
ULES
Third Judicial Circuit Court 3.204................................................ ccxix
C
ODE OF
J
UDICIAL
C
ONDUCT
Canon 2............................................................................................ ccxxi
Canon 4............................................................................................ ccxxi
Canon 5............................................................................................ ccxxi
Canon 7............................................................................................ ccxxi
cii 493 M
ICHIGAN
R
EPORTS
R
ULES
A
MENDED
R
ULES OF
P
ROFESSIONAL
C
ONDUCT
Rule 8.2.......................................................................................... ccxxxi
R
ULES
R
ESCINDED
L
OCAL
C
OURT
R
ULES
Oakland County Probate Court 5.503............................................ ccxx
T
ABLE OF
A
DMINISTRATIVE
O
RDERS
ciii
ADMINISTRATIVE ORDER
No. 2012-2
C
ONCURRENT
J
URISDICTION
P
LAN FOR THE
33
RD
C
IRCUIT
C
OURT
,
THE
90
TH
D
ISTRICT
C
OURT
,
AND
C
HARLEVOIX
/E
MMET
P
ROBATE
D
ISTRICT
Entered September 19, 2012, effective January 1, 2013 (File No.
2004-04)—R
EPORTER
.
Administrative Order No. 2003-1 and MCL 600.401
et seq. authorize Michigan trial courts to adopt concur-
rent jurisdiction plans within a county or judicial cir-
cuit, subject to approval of the Court.
The Court hereby approves adoption of the following
concurrent jurisdiction plan effective January 1, 2013:
3 The 33rd Circuit Court, the 90th District Court, and
Charlevoix/Emmet Probate District
The plan shall remain on file with the state court
administrator.
Amendments to concurrent jurisdiction plans may be
implemented by local administrative order pursuant to
MCR 8.112. Plan amendments shall conform to the
requirements of Administrative Order No. 2003-1 and
MCL 600.401 et seq.
civ
ADMINISTRATIVE ORDER
No. 2012-3
C
ONCURRENT
J
URISDICTION
P
LAN FOR THE
57
TH
C
IRCUIT
C
OURT
,
THE
90
TH
D
ISTRICT
C
OURT
,
AND
C
HARLEVOIX
/E
MMET
P
ROBATE
D
ISTRICT
Entered September 19, 2012, effective January 1, 2013 (File No.
2004-04)—R
EPORTER
.
Administrative Order No. 2003-1 and MCL 600.401
et seq. authorize Michigan trial courts to adopt concur-
rent jurisdiction plans within a county or judicial cir-
cuit, subject to approval of the Court.
The Court hereby approves adoption of the following
concurrent jurisdiction plan effective January 1, 2013:
3 The 57th Circuit Court, the 90th District Court, and
Charlevoix/Emmet Probate District
3 The plan shall remain on file with the state court
administrator.
Amendments to concurrent jurisdiction plans may be
implemented by local administrative order pursuant to
MCR 8.112. Plan amendments shall conform to the
requirements of Administrative Order No. 2003-1 and
MCL 600.401 et seq.
cv
ADMINISTRATIVE ORDER
No. 2012-4
C
ONCURRENT
J
URISDICTION
P
LAN FOR THE
48
TH
C
IRCUIT
C
OURT
,
THE
57
TH
D
ISTRICT
C
OURT
,
AND
A
LLEGAN
C
OUNTY
P
ROBATE
C
OURT
Entered October 24, 2012, effective February 1, 2013 (File No.
2004-04)—R
EPORTER
.
Administrative Order No. 2003-1 and MCL 600.401
et seq. authorize Michigan trial courts to adopt concur-
rent jurisdiction plans within a county or judicial cir-
cuit, subject to approval of the Court.
The Court hereby approves adoption of the following
concurrent jurisdiction plan effective February 1, 2013:
• The 48th Circuit Court, the 57th District Court,
and Allegan County Probate Court
The plan shall remain on file with the state court
administrator.
Amendments to concurrent jurisdiction plans may be
implemented by local administrative order pursuant to
MCR 8.112. Plan amendments shall conform to the
requirements of Administrative Order No. 2003-1 and
MCL 600.401 et seq.
cvi
ADMINISTRATIVE ORDER
No. 2012-5
I
MPLEMENTATION OF
T
RIAL
C
OURT
P
ERFORMANCE
M
EASURES
Entered December 5, 2012, effective immediately (File No. 2012-15)—
R
EPORTER
.
Performance measurement is a critical means to
assess the services provided to the public and the
processes used to deliver those services. Performance
measurement can assist in assessing and recognizing
areas within courts that are working well, and those
that require attention and improvement.
Trial court performance measures are not a new
concept. The National Center for State Courts first
issued the 10 CourTools in 2005; in the 1990s, SCAO
formed a task force, including judges and court admin-
istrators, to study how to measure a court’s perfor-
mance. In 2009, the state court administrator convened
the Trial Court Performance Measures Committee,
which piloted performance measures and offered rec-
ommendations. The committee stressed that all trial
courts should embrace performance measures as an
opportunity to provide high-quality public service in the
most efficient way. Further, because transparency and
accountability are integral elements of an efficient and
effective judiciary, SCAO’s standardized statewide per-
formance measure reports should be readily available to
the public.
cvii
In an effort to ensure continued improvement in the
judiciary, the Court adopts this order.
A. The State Court Administrative Office is directed
to:
1. Develop a plan for implementation of performance
measures in all trial courts. The initial plan shall be
submitted to the Supreme Court for approval, and the
plan subsequently shall be periodically reviewed by the
Court.
2. Assist trial courts in implementing and posting
performance measures.
3. In conjunction with the Trial Court Performance
Measures Committee, assess and report on the effec-
tiveness of the performance measures and modify the
measures as needed.
B. Trial courts are directed to:
1. Comply with the trial court performance measures
plan developed by the State Court Administrative Of-
fice.
2. Report performance measure information to the
State Court Administrative Office.
C. SCAO’s standardized statewide performance mea-
sure reports shall be made available to the public on the
Internet after approval by the Supreme Court.
Staff Comment: This administrative order authorizes the implemen-
tation of performance measures in trial courts.
The staff comment is not an authoritative construction by the Court.
cviii 493 M
ICHIGAN
R
EPORTS
ADMINISTRATIVE ORDER
No. 2012-6
C
ONCURRENT
J
URISDICTION
P
LAN FOR THE
37
TH
C
IRCUIT
C
OURT
,
THE
10
TH
D
ISTRICT
C
OURT
,
AND THE
C
ALHOUN
C
OUNTY
P
ROBATE
Entered December 5, 2012, effective January 1, 2013 (File No.
2004-04)—R
EPORTER
.
Administrative Order No. 2003-1 and MCL 600.401
et seq. authorize Michigan trial courts to adopt concur-
rent jurisdiction plans within a county or judicial cir-
cuit, subject to approval of the Court.
The Court hereby approves adoption of the following
concurrent jurisdiction plan effective January 1, 2013,
or as soon thereafter as possible:
• The 37th Circuit Court, the 10th District Court,
and the Calhoun County Probate Court.
The plan shall remain on file with the state court
administrator.
Amendments to concurrent jurisdiction plans may be
implemented by local administrative order pursuant to
MCR 8.112. Plan amendments shall conform to the
requirements of Administrative Order No. 2003-1 and
MCL 600.401 et seq.
cix
ADMINISTRATIVE ORDER
No. 2012-7
A
DMINISTRATIVE
O
RDER
A
LLOWING
S
TATE
C
OURT
A
DMIN-
ISTRATIVE
O
FFICE TO
A
UTHORIZE A
J
UDICIAL
O
FFICER
’
S
A
PPEARANCE BY
V
IDEO
C
OMMUNICATION
E
QUIPMENT
Entered December 5, 2012, effective January 1, 2013 (File No.
2012-16)—R
EPORTER
.
The State Court Administrative Office is authorized,
until further order of this Court, to approve the use of
two-way interactive video technology in the trial courts
to allow judicial officers to preside remotely in any
proceeding that may be conducted by two-way interac-
tive technology or communication equipment without
the consent of the parties under the Michigan Court
Rules and statutes. Remote participation by judicial
officers shall be limited to the following specific situa-
tions:
1) judicial assignments;
2) circuits and districts that are comprised of more
than one county and would require a judicial officer to
travel to a different courthouse within the circuit or
district;
3) district court districts that have multiple court
locations in which a judicial officer would have to travel
to a different courthouse within the district;
4) a multiple district plan in which a district court
magistrate would have to travel to a different district.
cx
The judicial officer who presides remotely must be
physically present in a courthouse located within his or
her judicial circuit, district, or multiple district area.
For circuits or districts that are comprised of more
than one county, each court that seeks permission to
allow its judicial officers to preside by video communi-
cation equipment must submit a proposed local admin-
istrative order for approval by the State Court Admin-
istrator pursuant to MCR 8.112(B). The local
administrative order must describe how the program
will be implemented and the administrative procedures
for each type of hearing for which two-way interactive
video technology will be used. The State Court Admin-
istrative Office shall either approve the proposed local
administrative order or return it to the chief judge for
amendment in accordance with requirements and
guidelines provided by the State Court Administrative
Office.
For judicial assignments, the assignment order will
allow remote participation by judges as long as the
assigned judge is physically present in a courthouse
located within the judge’s judicial circuit or district. A
local administrative order is not required for assign-
ments.
For multiple district plans, the plan will allow remote
participation by district court magistrates as long as the
magistrate is physically present in a courthouse located
within the multiple district area. No separate local
administrative order is required.
The State Court Administrative Office shall assist
courts in implementing the technology, and shall report
periodically to this Court regarding its assessment of
the program. Those courts using the technology shall
provide statistics and otherwise cooperate with the
A
DM
O
RDER
N
O
. 2012-7 cxi
State Court Administrative Office in monitoring the use
of video communication equipment.
Staff Comment: This administrative order allows the State Court
Administrative Office to authorize a judge to preside using videoconfer-
encing equipment in certain types of proceedings.
The staff comment is not an authoritative construction by the Court.
M
ARILYN
K
ELLY
, J. I would decline to adopt this
administrative order.
cxii 493 M
ICHIGAN
R
EPORTS
ADMINISTRATIVE ORDER
No. 2013-1
A
DOPTION OF
C
ONCURRENT
J
URISDICTION
P
LAN FOR THE
18
TH
C
IRCUIT
C
OURT
,
THE
74
TH
D
ISTRICT
C
OURT
,
AND THE
B
AY
C
OUNTY
P
ROBATE
C
OURT
Entered January 23, 2013, effective immediately (File No. 2004-04)—
R
EPORTER
.
Administrative Order No. 2003-1 and MCL 600.401
et seq. authorize Michigan trial courts to adopt concur-
rent jurisdiction plans within a county or judicial cir-
cuit, subject to approval of the Court.
The Court hereby approves adoption of the following
concurrent jurisdiction plan effective immediately:
• The 18th Circuit Court, the 74th District Court,
and the Bay County Probate Court.
The plan shall remain on file with the state court
administrator.
Amendments to concurrent jurisdiction plans may be
implemented by local administrative order pursuant to
MCR 8.112. Plan amendments shall conform to the
requirements of Administrative Order No. 2003-1 and
MCL 600.401 et seq.
cxiii
ADMINISTRATIVE ORDER
No. 2013-2
A
DOPTION OF
C
ONCURRENT
J
URISDICTION
P
LAN FOR THE
14
TH
C
IRCUIT
C
OURT
,
THE
60
TH
D
ISTRICT
C
OURT
,
AND THE
M
USKEGON
C
OUNTY
P
ROBATE
C
OURT
Entered January 23, 2013, effective immediately (File No. 2004-04)—
R
EPORTER
.
Administrative Order No. 2003-1 and MCL 600.401
et seq. authorize Michigan trial courts to adopt concur-
rent jurisdiction plans within a county or judicial cir-
cuit, subject to approval of the Court.
The Court hereby approves adoption of the following
concurrent jurisdiction plan effective immediately:
• The 14th Circuit Court, the 60th District Court,
and the Muskegon County Probate Court.
The plan shall remain on file with the state court
administrator.
Amendments to concurrent jurisdiction plans may be
implemented by local administrative order pursuant to
MCR 8.112. Plan amendments shall conform to the
requirements of Administrative Order No. 2003-1 and
MCL 600.401 et seq.
cxiv
ADMINISTRATIVE ORDER
No. 2013-3
A
DOPTION OF
C
ONCURRENT
J
URISDICTION
P
LAN FOR THE
45
TH
C
IRCUIT
C
OURT
,
THE
3-B D
ISTRICT
C
OURT
,
AND THE
S
T
.J
OSEPH
C
OUNTY
P
ROBATE
C
OURT
Entered March 20, 2013, effective immediately (File No. 2004-04)—
R
EPORTER
.
Administrative Order No. 2003-1 and MCL 600.401
et seq. authorize Michigan trial courts to adopt concur-
rent jurisdiction plans within a county or judicial cir-
cuit, subject to approval of the Court.
The Court hereby approves adoption of the following
concurrent jurisdiction plan effective immediately:
• The 45th Circuit Court, the 3-B District Court, and
the St. Joseph County Probate Court.
The plan shall remain on file with the state court
administrator.
Amendments to concurrent jurisdiction plans may be
implemented by local administrative order pursuant to
MCR 8.112. Plan amendments shall conform to the
requirements of Administrative Order No. 2003-1 and
MCL 600.401 et seq.
cxv
ADMINISTRATIVE ORDER
No. 2013-4
A
DOPTION OF
C
ONCURRENT
J
URISDICTION
P
LAN FOR THE
56
TH
C
IRCUIT
C
OURT
,
THE
56-A D
ISTRICT
C
OURT
,
AND THE
E
ATON
C
OUNTY
P
ROBATE
C
OURT
Entered May 1, 2013, effective immediately (File No. 2004-04)—
R
EPORTER
.
Administrative Order No. 2003-1 and MCL 600.401
et seq. authorize Michigan trial courts to adopt concur-
rent jurisdiction plans within a county or judicial cir-
cuit, subject to approval of the Court.
The Court hereby approves adoption of the following
concurrent jurisdiction plan effective immediately:
• The 56th Circuit Court, the 56-A District Court,
and the Eaton County Probate Court.
The plan shall remain on file with the state court
administrator.
Amendments to concurrent jurisdiction plans may be
implemented by local administrative order pursuant to
MCR 8.112. Plan amendments shall conform to the
requirements of Administrative Order No. 2003-1 and
MCL 600.401 et seq.
cxvi
ADMINISTRATIVE ORDER
No. 2013-5
A
DOPTION OF
C
ONCURRENT
J
URISDICTION
P
LAN FOR THE
54
TH
C
IRCUIT
C
OURT
,
THE
71-B D
ISTRICT
C
OURT
,
AND THE
T
USCOLA
C
OUNTY
P
ROBATE
C
OURT
Entered May 1, 2013, effective immediately (File No. 2004-04)—
R
EPORTER
.
Administrative Order No. 2003-1 and MCL 600.401
et seq. authorize Michigan trial courts to adopt concur-
rent jurisdiction plans within a county or judicial cir-
cuit, subject to approval of the Court.
The Court hereby approves adoption of the following
concurrent jurisdiction plan effective immediately:
• The 54th Circuit Court, the 71-B District Court,
and the Tuscola County Probate Court.
The plan shall remain on file with the state court
administrator.
Amendments to concurrent jurisdiction plans may be
implemented by local administrative order pursuant to
MCR 8.112. Plan amendments shall conform to the
requirements of Administrative Order No. 2003-1 and
MCL 600.401 et seq.
cxvii
AMENDED ADMINISTRATIVE
ORDER
No. 1989-1
A
MENDMENT OF
A
DMINISTRATIVE
O
RDER
N
O
. 1989-1
C
ONCERNING
F
ILM OR
E
LECTRONIC
M
EDIA
C
OVERAGE OF
C
OURT
P
ROCEEDINGS
Entered December 5, 2012, effective January 1, 2013 (File No.
2011-09)—R
EPORTER
.
[The present language is amended as indi-
cated below by underlining to indicate new
text and by overstriking to indicate text that
has been deleted.]
Film or Electronic Media Coverage of Court Proceed-
ings.
The following guidelines shall apply to film or elec-
tronic media coverage of proceedings in Michigan
courts:
1. [Unchanged.]
2. Limitations.
(a) In the trial courts.
(a)(i) Film or electronic media coverage shall be
allowed upon request in all court proceedings. Requests
by representatives of media agencies for such coverage
must be made in writing to the clerk of the particular
court not less than three business days before the
cxviii
proceeding is scheduled to begin. A judge has the
discretion to honor a request that does not comply with
the requirements of this subsection. The court shall
provide that the parties be notified of a request for film
or electronic media coverage.
(b)(ii) A judge may terminate, suspend, limit, or
exclude film or electronic media coverage at any time
upon a finding, made and articulated on the record in
the exercise of discretion, that the fair administration of
justice requires such action, or that rules established
under this order or additional rules imposed by the
judge have been violated. The judge has sole discretion
to exclude coverage of certain witnesses, including but
not limited to the victims of sex crimes and their
families, police informants, undercover agents, and
relocated witnesses.
(c)(iii) Film or electronic media coverage of the jurors
or the jury selection process shall not be permitted.
(d)(iv) A trial judge’s decision to terminate, suspend,
limit, or exclude film or electronic media coverage is not
appealable, by right or by leave.
(b) In the Court of Appeals and the Supreme Court.
(i) Film or electronic media coverage shall be allowed
upon request in all court proceedings except for good
cause as determined under MCR 8.116(D)(1). Requests
by representatives of media agencies for such coverage
must be made in writing to the clerk of the particular
court not less than three business days before the
proceeding is scheduled to begin. A judge has the
discretion to honor a request that does not comply with
the requirements of this subsection. The court shall
provide that the parties be notified of a request for film
or electronic media coverage.
A
MENDED
A
DM
O
RDER
N
O.
1989-1 cxix
(ii) A judge may terminate, suspend, limit, or exclude
film or electronic media coverage at any time upon a
finding, made and articulated on the record, that good
cause requires such action or that rules established
under this order or additional rules imposed by the
judge have been violated. If a court makes such a
finding, it must issue an order that states with particu-
larity the reasons for termination, suspension, limita-
tion, or exclusion of film or electronic media coverage.
(iii) If a judge of the Court of Appeals terminates,
suspends, limits, or excludes film or electronic media
coverage, the person who requested permission to film
or otherwise provide for electronic media coverage may
appeal that decision to the Chief Judge of the Court of
Appeals. If the Chief Judge affirms the judge’s decision,
the requester may appeal by leave to the Supreme
Court.
3.-9. [Unchanged.]
Staff Comment: The amendment of Administrative Order No. 1989-1
adds new language to clarify and expand the standards that allow film or
electronic media coverage of court proceedings in the Court of Appeals
and the Supreme Court.
The staff comment is not an authoritative construction by the Court.
cxx 493 M
ICHIGAN
R
EPORTS
AMENDED ADMINISTRATIVE
ORDER
No. 2010-3
E
XTENDED
D
EADLINE FOR
E
-FILING
P
ROJECT IN
O
AKLAND
C
IRCUIT
C
OURT
,F
AMILY
D
IVISION
Entered January 23, 2013 (File No. 2002-37)—R
EPORTER
.
On order of the Court, the Sixth Judicial Circuit
Court, in consultation with the State Court Adminis-
trative Office (SCAO), developed this pilot project to
study the effectiveness of electronically filing court
documents in connection with the just, speedy, and
economical determination of Family Division actions in
a mandatory electronic filing environment.
Beginning March 16, 2010, or as soon thereafter as is
possible and effective until December 31, 2012Decem-
ber 31, 2014, or further order of this court, the Sixth
Judicial Circuit Court adopts an e-filing pilot program
requiring parties to electronically file documents in
cases assigned to one or more participating judges.
Rules designed to address issues unique to the imple-
mentation of this program are attached to and incorpo-
rated by reference to this local administrative order.
Participation in this pilot program is mandatory for
cases with a “DO” case code and assigned to pilot
program judge(s), and, effective immediately, will be
gradually implemented for cases with a “DM” case code.
cxxi
The Sixth Judicial Circuit Court will track the par-
ticipation and effectiveness of this pilot program and
report the results to the SCAO.
On further order of the Court, effective immediately,
Administrative Order No. 2010-3 is amended as follows.
[Additions to the text are indicated in underlin-
ing and deleted text is shown in strikeover.]
1.-14. [Unchanged.]
15. Expiration. Unless otherwise directed by the
Michigan Supreme Court, this pilot program, requiring
parties to electronically file documents in cases as-
signed to participating judges, shall continue until
December 31, 2012December 31, 2014, or further order
of this court.
cxxii 493 M
ICHIGAN
R
EPORTS
AMENDED ADMINISTRATIVE
ORDER
No. 2010-4
E
XPANSION OF
E
-FILING IN THE
13
TH
C
IRCUIT
C
OURT
(G
RAND
T
RAVERSE
,A
NTRIM
,
AND
L
EELANAU
C
OUNTIES
)
Entered September 19, 2012, effective immediately (File No. 2002-37)—
R
EPORTER
.
[Additions to the text are indicated in underlin-
ing and deletions are indicated by strikeover.]
On order of the Court, the 13th Circuit Court is
authorized to implement an Electronic Document Fil-
ing Pilot Project. The pilot project is established to
study the effectiveness of electronically filing court
documents in lieu of traditional paper filings. The pilot
project shall begin July 1, 2010, or as soon thereafter as
is possible, and shall remain in effect until July 1,
20152017, or further order of this Court. The 13th
Circuit Court is aware that rules regarding electronic
filing have been published for comment by this Court. If
this Court adopts electronic-filing rules during the
pendency of the 13th Circuit Court Electronic Docu-
ment Filing Pilot Project, the 13th Circuit Court will,
within 60 days of the effective date of the rules, comply
with the requirements of those rules.
The 13th Circuit Court will track the participation
and effectiveness of this pilot program and shall report
cxxiii
to and provide information as requested by the State
Court Administrative Office.
1. Construction
The purpose of the pilot program is to study the
effectiveness of electronically filing court documents in
connection with the just, speedy, and economical deter-
mination of the actions involved in the pilot program.
The 13th Circuit Court may exercise its discretion to
grant necessary relief to avoid the consequences of error
so as not to affect the substantial rights of the parties.
Except for matters related to electronically filing docu-
ments during the pilot program, the Michigan Rules of
Court govern all other aspects of the cases involved in
the pilot.
2. Definitions
(a) “Clerk” means the Antrim, Grand Traverse and
Leelanau County Clerks.
(b) “E-filing” means any court pleading, motion,
brief, response, list, order, judgment, notice, or other
document filed electronically pursuant to the pilot
program.
(c) “LAO” means all local administrative orders
governing the 13th Judicial Court.
(d) “MCR” means the Michigan Court Rules.
(e) “Pilot program” means the initiative by the 13th
Judicial Circuit Court, the 13th Circuits’ Clerks and the
Grand Traverse Information Technology Department
in conjunction with OnBase Software, and under the
supervision of the State Court Administrative Office.
This e-filing application facilitates the electronic filing
of pleadings, motions, briefs, responses, lists, orders,
judgments, notices, and other documents. All state
courts in Michigan are envisioned as eventually permit-
ting e-filing (with appropriate modifications and im-
cxxiv 493 M
ICHIGAN
R
EPORTS
provements). The 13th Circuit pilot program will begin
testing with “C” or “N” type civil cases in Grand
Traverse County. The Court plans to expand the pilot
program to Antrim and Leelanau Counties. The pilot
program is expected to last approximately fiveseven
(5)(7) years, beginning on July 1, 2010.
(f) “Technical malfunction” means any hardware,
software, or other malfunction that prevents a user
from timely filing a complete e-filing or sending or
receiving service of an e-filing.
3. Participation in the Pilot Program
(a) Participation in the pilot program shall be man-
datory in all pending “C” or “N” type cases as part of
Phase I and additionally in other case types as follows:
Phase II: “A” and “P” case types, including “PH” and
“PP,” beginning with the effective date of this order.
Phase III: “DC,” “DO,” “DM,” and “DP” case types
and all remaining divorce or family support case codes,
beginning not less than one month after implementa-
tion of Phase II.
Phase IV: “FC,” “FH,” and all other remaining
criminal case codes, beginning not less than six months
after implementation of Phase III.
Participation shall be assigned following the filing
and service of the initial complaint or other initial
filing. At the discretion of the judge, participation may
also include postdisposition proceedings in qualifying
case types.
(b) This is a mandatory e-filing project. It is pre-
sumed that all documents will be filed electronically.
However, the Court recognizes that circumstances may
arise that will prevent one from e-filing. To ensure that
all parties retain access to the courts, parties that
demonstrate good cause will be permitted to file their
A
MENDED
A
DM
O
RDER
N
O
. 2010-4 cxxv
documents with the clerk, who will then file the docu-
ments electronically. Among the factors that the 13th
Circuit Court will consider in determining whether
good cause exists to excuse a party from mandatory
e-filing are a party’s access to the Internet and indi-
gency. A self-represented party is not excused from the
project merely because the individual does not have
counsel.
4. E-filings Submission, Acceptance and Time
of Service with the Court; Signature
(a) In an effort to facilitate uniform service within
the scope of this project, the 13th Circuit Court strongly
recommends electronic service.
(b) Program participants must submit e-filings pur-
suant to these rules and the pilot program’s technical
requirements. The clerk may, in accordance with MCR
8.119(C) reject documents submitted for filing that do
not comply with MCR 2.113(C)(1), are not accompanied
by the proper fees, clearly violate Administrative Order
No. 2006-2, do not conform to the technical require-
ments of this pilot project, or are otherwise submitted
in violation of a statute, an MCR, an LAO, or the
program rules.
(c) E-filings may be submitted to the court at any
time, but shall only be reviewed and accepted for filing
by the clerk’s office during the normal business hours of
8 a.m. to 5 p.m. E-filings submitted after business hours
shall be deemed filed on the business day the e-filing is
accepted (usually the next business day). The clerk shall
process electronic submissions on a first-in, first-out
basis.
(d) E-filings shall be treated as if they were hand-
delivered to the court for all purposes under statute, the
MCR, and the LAO.
cxxvi 493 M
ICHIGAN
R
EPORTS
(e) A pleading, document, or instrument e-filed or
electronically served under this rule shall be deemed to
have been signed by the judge, court clerk, attorney,
party or declarant.
(i) Signatures submitted electronically shall use the
following form: /s/ John L. Smith.
(ii) A document that requires a signature under the
penalty of perjury is deemed signed by the declarant if,
before filing, the declarant has signed a printed form of
the document.
(iii) An e-filed document that requires a signature of
a notary public is deemed signed by the notary public if,
before filing, the notary public has signed a printed
form of the document.
(f) The original of a sworn or verified document that
is an e-filing (e.g., a verified pleading) or part of an
e-filing (e.g. an affidavit, notarization, or bill of costs)
must be maintained by the filing attorney and made
available upon reasonable request of the court, the
signatory, or opposing party.
(g) Proposed orders shall be submitted to the court in
accordance with the provisions of the pilot program.
The court and the clerk shall exchange the documents
for review and signature pursuant to MCR 2.602(B).
(h) By electronically filing the document, the elec-
tronic filer affirms compliance with these rules.
5. Time for Service and Filing of Pleadings,
Documents, and Motions; Judge’s Copies, Hear-
ings on Motions; Fees
(a) All times for filing and serving e-filings shall be
governed by the applicable statute, the MCR and the
LAO as if the e-filings were hand delivered.
(b) The electronic submission of a motion and brief
through this pilot program satisfies the requirements of
A
MENDED
A
DM
O
RDER
N
O
. 2010-4 cxxvii
filing a judge’s copy under MCR 2.119(A)(2). Upon
request by the court, the filing party shall promptly
provide a traditional judge’s copy to chambers.
(c) Applicable fees, including e-filing fees and service
fees, shall be paid electronically through procedures
established by the clerk’s office at the same time and in
the same amount as required by statute, court rule, or
administrative order.
(i) Each e-filing is subject to the following e-filing
fees.
Type of Filing Fee
EFO (e-filing) $5
EFS (e-filing with service) $8
SO (service only) $5
(ii) Users who use credit cards for payment are also
responsible for a 3% user fee.
6. Service
(a) All parties shall provide the court and opposing
parties with one e-mail address with the functionality
required for the pilot program. All service shall origi-
nate from and be perfected upon this e-mail address.
(b) Unless otherwise agreed to by the court and the
parties, all e-filings must be served electronically to the
e-mail addresses of all parties. The subject matter line for
the transmittal of document served by e-mail shall state:
“Service of e-filing in case [insert caption of case].”
(c) The parties and the court may agree that, instead
of e-mail service, e-filings may be served to the parties
(but not the court) by facsimile or by traditional means.
For those choosing to accept facsimile service:
(i) the parties shall provide the court and the oppos-
ing parties with one facsimile number with appropriate
functionality,
cxxviii 493 M
ICHIGAN
R
EPORTS
(ii) the facsimile number shall serve as the number to
which service may be made,
(iii) the sender of the facsimile should obtain a
confirmation delivery, and
(iv) parties shall comply with the requirements of MCR
2.406 on the use of facsimile communication equipment.
(d) Proof of Service shall be submitted to the 13th
Circuit Court according to MCR 2.104 and these rules.
7. Format and Form of E-filing Service
(a) A party may only e-file documents for one case in
each transaction.
(b) All e-filings shall comply with MCR 1.109 and the
technical requirements of the court’s vendor.
(c) Any exhibit or attachment that is part of an
e-filing must be clearly designated and identified as an
exhibit or attachment.
(d) All e-filings, subject to subsection 6(c) above, shall
be served on the parties in the same format and form as
submitted to the court.
8. Pleadings, Motions and Documents not to be
E-filed
The following documents shall not be e-filed during
the pilot program and must be filed by the traditional
methods provided in the MCR and the LAO:
(a) documents to be filed under seal (pursuant to
court order),
(b) initiating documents, and
(c) documents for case evaluation proceedings.
9. Official Court Record; Certified Copies
(a) For purposes of this pilot program, e-filings are
the official court record. An appellate record shall be
certified in accordance with MCR 7.210(A)(1).
A
MENDED
A
DM
O
RDER
N
O
. 2010-4 cxxix
(b) Certified copies or true copies of e-filed docu-
ments shall be issued in the conventional manner by
the clerk’s office in compliance with the Michigan Trial
Court Case File Management Standards.
(c) At the conclusion of the pilot program, if the
program does not continue as a pilot project or in some
other format, the clerk shall convert all e-filings to
paper format, the clerk shall convert all e-filings to
paper form in accordance with MCR 8.119(D)(1)(d).
Participating attorneys shall provide reasonable assis-
tance in constructing the paper record.
(d) At the conclusion of the pilot program, if the
program continues as a pilot project or in another
format, the clerk shall provide for record retention and
public access in a manner consistent with the instruc-
tions of the court and the court rules.
10. Court Notices, Orders, and Judgments
At the court’s discretion, the court may issue, file, and
serve orders, judgments and notices as e-filings. Pursuant
to a stipulation and order, the parties may agree to accept
service from the court via facsimile pursuant to the
procedures set forth in Rule 6(c).
11. Technical Malfunctions
(a) A party experiencing a technical malfunction with
the party’s equipment (such as Portable Document For-
mat [PDF] conversion problems or inability to access the
pilot sites), another party’s equipment (such as an inop-
erable e-mail address), or an apparent technical malfunc-
tion of the court’s pilot equipment, software, or server
shall use reasonable efforts to timely file or receive service
by traditional methods and shall provide prompt notice to
the court and the parties of any such malfunction.
(b) If a technical malfunction has prevented a party
from timely filing, responding to, or otherwise perfect-
cxxx 493 M
ICHIGAN
R
EPORTS
ing or receiving service of an e-filing, the affected party
may petition the 13th Circuit Court for relief. Such
petition shall contain an adequate proof of the technical
malfunction and set forth good cause for failure to use
nonelectronic means to timely file or serve a document.
The Court shall liberally consider proof of the technical
malfunction and use its discretion in determining
whether such relief is warranted.
12. Privacy Considerations
(a) With respect to any e-filing, the following require-
ments for personal information shall apply:
(i) Social Security Numbers. Pursuant to Adminis-
trative Order No. 2006-2, full social security numbers
shall not be included in e-filings. If an individual’s social
security number must be referenced in an e-filing, only
the last four digits of that number may be used and the
number specified in substantially the following format:
XXX-XX-1234.
(ii) Names of Minor Children. Unless named as a party,
the identity of minor children shall not be included in
e-filings. If a nonparty minor child must be mentioned,
only the initials of that child’s name may be used.
(iii) Dates of Birth. An individual’s full birthdate
shall not be included in e-filings. If an individual’s date
of birth must be referenced in an e-filing, only the year
may be used and the date specified in substantially the
following format: XX/XX/1998.
(iv) Financial Account Numbers. Full financial ac-
count numbers shall not be included in e-filings unless
required by statute, court rule, or other authority. If a
financial account number must be referenced in an
e-filing, only the last four digits of these numbers may
be used and the number specified in substantially the
following format: XXXXX1234.
A
MENDED
A
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O
RDER
N
O
. 2010-4 cxxxi
(v) Driver’s License Numbers and State-Issued
Personal Identification Card Numbers. A person’s
full driver’s license number and state-issued personal
identification number shall not be included in
e-filings. If an individual’s driver’s license number or
state-issued personal identification card number
must be referenced in e-filing, only the last four digits
of that number should be used and the number
specified in substantially the following format X-XX-
XXX-XX1-234.
(vi) Home Addresses. With the exception of a self-
represented party, full home addresses shall not be
included in e-filings. If an individual’s home address
must be referenced in an e-filing, only the city and state
should be used.
(b) Parties wishing to file a complete personal data
identifier listed above may:
(i) Pursuant to and in accordance with the MCR
and the LAO, file a motion to file a traditional paper
version of the document under seal. The court, in
granting the motion to file the document under seal,
may still require that an e-filing that does not reveal
the complete personal data identifier be filed for the
public files.
or
(ii) Pursuant to and in accordance with the appli-
cable MCR and LAO, obtain a court order to file a
traditional paper reference list under seal. The refer-
ence list shall contain the complete personal data
identifiers and the redacted identifiers used in the
e-filing. All references in the case to the redacted
identifiers included in the reference list shall be
construed to refer to the corresponding complete
personal data identifiers. The reference list must be
filed under seal, and may be amended as of right.
cxxxii 493 M
ICHIGAN
R
EPORTS
(c) Parties should exercise caution when filing papers
that contain private or confidential information, includ-
ing, but not limited to, the information covered above and
listed below:
(i) Medical records, treatment and diagnosis;
(ii) Employment history;
(iii) Individual financial information;
(iv) Insurance information
(v) Proprietary or trade secret information;
(vi) Information regarding an individual’s coopera-
tion with the government; and
(vii) Personal information regarding the victim of
any criminal activity.
13. Records and Reports: Further, the 13th Cir-
cuit Court shall file an annual report with the Supreme
Court covering the project to date by January 1 of each
year (or more frequently or on another date as specified
by the Court) that outlines the following:
(a) Detailed financial data that show the total
amount of money collected in fees for documents filed
or served under the pilot project to date, the original
projections for collections of fees, and whether the
projections have been met or exceeded.
(b) Detailed financial information regarding the dis-
tribution or retention of collected fees, including the
amount paid to each vendor per document and in total
for the subject period, the amount retained by
(c) the Court per document and in total for the period,
and whether the monies retained by the Court are in a
separate account or commingled with other monies.
(c)(d) A detailed itemization of all costs attributed to
the project to date and a statement of whether and
when each cost will recur.
A
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A
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. 2010-4 cxxxiii
(d)(e) A detailed itemization of all cost savings to the
Court whether by reduced personnel or otherwise and a
statement of whether any cost savings to the Court are
reflected in the fee structure charged to the parties.
(e)(f) Information regarding how the filing and ser-
vice fees were calculated and whether it is anticipated
that those fees will be necessary and continued after the
conclusion of the pilot program.
(f)(g) A statement of projections regarding antici-
pated e-filing and service-fee collections and expendi-
tures for the upcoming periods.
14. Amendment
These rules may be amended upon the recommenda-
tion of the participating judges, the approval of the chief
judge, and authorization by the State Court Adminis-
trator.
15. Expiration
Unless otherwise directed by the Michigan Supreme
Court, this pilot program, requiring parties to electroni-
cally file documents in cases assigned to participating
judges, shall continue until July 1, 20152017.
cxxxiv 493 M
ICHIGAN
R
EPORTS
AMENDED ADMINISTRATIVE
ORDER
No. 2010-6
R
EVISED
E
-FILING
P
ILOT
P
ROJECT IN THE
16
TH
C
IRCUIT
C
OURT
(M
ACOMB
C
OUNTY
)
Entered January 23, 2013 (File No. 2002-37)—R
EPORTER
.
On order of the Court, the 16th Circuit Court is
authorized to implement an Electronic Document Fil-
ing Pilot Project. The pilot project is established to
study the effectiveness of electronically filing court
documents in lieu of traditional paper filings. The pilot
project shall begin on January 1, 2011, or as soon
thereafter as is possible, and shall remain in effect until
December 31, 2012 December 31, 2015, or further order
of this Court. The 16th Circuit Court is aware that rules
regarding electronic filing have been published for
comment by this Court. If this Court adopts electronic-
filing rules during the pendency of the 16th Circuit
Court Electronic Document Filing Pilot Project, the
16th Circuit Court will, within 60 days of the effective
date of the rules, comply with the requirements of those
rules. The 16th Circuit Court will track the participa-
tion and effectiveness of this pilot program and shall
report to and provide information as requested by the
State Court Administrative Office.
cxxxv
[This administrative order supersedes the
order that entered December 28, 2010.
Changes are indicated in underlining and
overstrike.]
On further order of the Court, effective immediately,
Administrative Order No. 2010-6 is amended as follows.
1. Construction
The purpose of the pilot program is to study the
effectiveness of electronically filing court documents in
connection with the just, speedy, and economical deter-
mination of the actions involved in the pilot program.
The 16th Sixteenth Circuit Court may exercise its
discretion to grant necessary relief to avoid the conse-
quences of error so as not to affect the substantial
rights of the parties. Except for matters related to
electronically filing documents during the pilot pro-
gram, the Michigan Rules of Court govern all other
aspects of the cases involved in the pilot.
2. Definitions
a. “Clerk” means the Macomb County Clerk.
b. “E-filing” means any court pleading, motion, brief,
response, list, order, judgment, notice, or other docu-
ment filed electronically pursuant to the pilot program.
c. “LAO” means all local administrative orders gov-
erning the 16th Sixteenth Judicial Circuit Court.
d. “MCR” means the Michigan Rules of Court.
e. “Pilot program” means the initiative by the 16th
Sixteenth Judicial Circuit Court, the Macomb County
Clerk/Register of Deeds, and the Macomb County Infor-
mation Technology Department in conjunction with
Vista Solutions Group, LP ImageSoft, Inc., and under
the supervision of the State Court Administrative Of-
fice. This e-filing application facilitates the electronic
cxxxvi 493 M
ICHIGAN
R
EPORTS
filing of pleadings, motions, briefs, responses, lists,
orders, judgments, notices, and other documents. All
state courts in Michigan are envisioned as eventually
permitting e-filing (with appropriate modifications and
improvements). The Macomb County pilot program will
begin testing with two circuit judges with “C” and “N”
type civil cases. The 16th Judicial Circuit Court will
expand testing into the remaining Civil Division case
types, and the Family Division case types for Divorces
without Children, Personal Protection Proceedings, and
Juvenile Proceedings. The court plans to expand the
pilot program to all circuit judges. The pilot program is
expected to last approximately two years, beginning on
January 1, 2011, and will be implemented in phases as
described below.
f. “Technical malfunction” means any hardware,
software, or other malfunction that prevents a user
from timely filing a complete e-filing or sending or
receiving service of an e-filing.
g. “TrueCertify” means an electronic document cer-
tification tool that allows the Macomb County Clerk’s
office to create and deliver electronically certified docu-
ments, eliminating the need for raised seals. TrueCer-
tify includes an ImageSoft hosted confirmation website
(truecertify.com) that stores an encrypted copy of each
certified document so that it can be visually verified by
the recipient.
h. “TrueFiling” means a web-based efile and service
solution provided by ImageSoft where electronic filings
may be submitted and delivered to the Courts’ OnBase
workflow.
3. Participation in the Pilot Program
a. Participation in the pilot program shall be manda-
tory in all pending “C” or “N” case types assigned to
participating circuit judges. as part of Phase 1 and
A
MENDED
A
DM
O
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N
O
. 2010-6 cxxxvii
additionally in other case types as follows: Participation
shall be assigned following the filing and service of the
initial complaint or other initial filing and assignment
of the case to a participating judge. At the discretion of
the judge, participation may also include post-
disposition proceedings in qualifying case types as-
signed to participating judges. The pilot will be imple-
mented in phases as follows:
i. Phase 1: The Macomb County pilot program will
begin with two Civil/Criminal Division judges and will
encompass case-type codes that begin civil cases
wherein the case suffix begins with a “C” or an “N.”
with two judges.
ii. Phase 2: The program will expand to case-type
codes AA, AE, AP, AR, AV, AH, AL, AS, AW, PC, PD, PR,
PS, and PZ for the above two judges within six months
after Phase 1 has begun. Three additional
Civil/Criminal Division judges will be added to the pilot
within six months after the pilot has begun.
iii. Phase 3: The program will expand to the remain-
ing Civil/Criminal Division judges for all civil case-type
codes The remaining Civil/Criminal Division judges will
be added within three months after Phase 2 has begun.
iv. Phase 4: The program will expand to case-type
code DO with all Family Division judges The remaining
civil cases will be added to the pilot within three months
after Phase 3 has begun upon approval of the Michigan
Supreme Court.
v. Phase 5: The program will expand to case-type
codes PH, PJ, PP, and VP, for all judges within six
months after Phase 4 has begun. Case initiation docu-
ments will be supported in this Phase for case-type
codes PH, PJ, PP, and VP.
cxxxviii 493 M
ICHIGAN
R
EPORTS
vi. Phase 6: The program will expand to case-type
codes DJ, DL, EM, JG, NA, PW, TL, and VF for all
Family Division judges within six months after Phase 5
has begun.
Until the 16th Circuit Court begins electronic case
initiation for specific case-type codes, participation shall
be assigned following the filing and service of the initial
complaint or other initial filing and assignment of the
case to a participating judge. At the discretion of the
judge, participation may also include post-disposition
proceedings in qualifying case types assigned to partici-
pating judges.
b. This is a mandatory e-filing project. It is presumed
that all documents will be filed electronically. However,
the Court recognizes that circumstances may arise that
will prevent a party from e-filing. To ensure that all
parties retain access to the courts, parties that demon-
strate good cause will be permitted to file their docu-
ments with the Clerk, who will then file the documents
electronically. Among the factors that the 16th Six-
teenth Circuit Court will consider in determining
whether good cause exists to excuse a party from
mandatory e-filing are a party’s access to the Internet
and indigency. A self-represented party is not excused
from the project merely because the individual does not
have counsel. However, upon submission of proof of
incarceration, a self-represented party shall be ex-
empted from e-filing during the period of the individu-
al’s incarceration. Application for a waiver from e-filing
at the time of case initiation shall be made to the Chief
Judge or the Chief Judge’s designee.
4. E-filings Submission, Acceptance, and Time of
Service with the Court; Signature
A
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. 2010-6 cxxxix
[Please note that where new paragraphs are
inserted below, the lettering of former para-
graphs has been relettered sequentially, for
example, former paragraph “b.” is now
paragraph “c.”]
a. In an effort to facilitate uniform service within the
scope of this project, the Sixteenth 16th Circuit Court
strongly recommends electronic service. However, ser-
vice of process for initiating documents shall be made
pursuant to MCR 2.105.
b. After the initial process has been served and the
defendant has registered as a user with the TrueFiling
e-filing system, amendments to the initiating docu-
ments may be served electronically subject to the limi-
tations or restrictions otherwise imposed in this order.
c. Program participants must submit e-filings pursu-
ant to these rules and the pilot program’s technical
requirements. The Clerk may, in accordance with MCR
8.119(C) reject documents submitted for filing that do
not comply with MCR 2.113(C)(1), are not accompanied
by the proper fees, clearly violate Administrative Order
No. 2006-2, do not conform to the technical require-
ments of this pilot project, or are otherwise submitted
in violation of a statute, an MCR, an LAO, or the
program rules.
d. E-filings may be submitted to the Court around
the clock at any time (with the exception of periodic
maintenance), but shall only be reviewed and accepted
for filing by the Macomb County Clerk’s Office during
normal business hours. E-filings submitted after the
close of normal business hours (which is currently 4:30
p.m.) shall be deemed filed on the next business day.
The clerk shall process electronic submissions on a
first-in, first-out basis. Although the system may be
cxl 493 M
ICHIGAN
R
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used on a 24-hour basis, technical support will generally
only be available during regular business hours.
e. E-filings shall be treated as if they were hand-
delivered to the court for all purposes under statute, the
MCR, and the LAO.
f. A pleading, document, or instrument e-filed or
electronically served under this rule shall be deemed to
have been signed by the judge, court clerk, attorney,
party, or declarant.
i. Signatures submitted electronically shall use the
following form: /s/ John L. Smith.
ii. A document that requires a signature under the
penalty of perjury is deemed signed by the declarant if,
before filing, the declarant has signed a printed form of
the document.
iii. An e-filed document that requires a signature of a
notary public is deemed signed by the notary public if,
before filing, the notary public has signed a printed
form of the document.
g. The original of a sworn or verified document that
is an e-filing (e.g., a verified pleading) or part of an
e-filing (e.g., an affidavit, notarization, or bill of costs)
must be maintained by the filing attorney and made
available upon reasonable request of the court, the
signatory, or opposing party.
h. Proposed orders shall be submitted to the court in
accordance with the provisions of the pilot program.
The court and the clerk shall exchange the documents
for review and signature pursuant to MCR 2.602(B).
i. By electronically filing the document, the electronic
filer indicates compliance with these rules.
5. Time for Service and Filing of Pleadings, Docu-
ments, and Motions; Judge’s Copies; Hearings on Mo-
tions; Fees
A
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. 2010-6 cxli
a. All times for filing and serving e-filings shall be
governed by the applicable statute, the MCR and the
LAO as if the e-filings were hand-delivered.
b. Where a praecipe is required, it must be e-filed
along with the documents that require the praecipe,
unless another court-approved mechanism is approved
and used by the filer.
c. The electronic submission of a motion and brief
through this pilot program satisfies the requirements of
filing a judge’s copy under MCR 2.119(A)(2). Upon
request by the Court, the filing party shall promptly
provide a traditional judge’s copy to chambers.
d. Applicable fees, including e-filing fees and service
fees, shall be paid electronically through procedures
established by the Macomb County Clerk’s Office at the
same time and in the same amount as required by
statute, court rule, or administrative order.
i. Each e-filing is subject to the following e-filing fees:
(1) EFO (e-filing only) $5.00
(2) EFS (e-filing with service) $8.00
(3) SO (service only) $5.00
ii. Users who use credit cards for payment may also
be responsible for a user fee not to exceed 3 percent.
6. Service
a. All parties shall register with the court provide the
court and opposing parties with one e-mail address with
the functionality required for the pilot program. All
service shall originate from and be perfected upon this
registered e-mail address. All parties shall also register
this e-mail address with the TrueFiling e-filing system.
Additional e-mail addresses for other attorneys or staff
persons associated with counsel for the party may be
added as registered users. Service shall be perfected
cxlii 493 M
ICHIGAN
R
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upon a self-represented party or counsel and any addi-
tional registered users associated with counsel at the
e-mail addresses registered with the TrueFiling e-filing
system. Each individual bears the responsibility for the
accuracy of the registered e-mail address.
b. Unless otherwise agreed to by the court and the
parties, all e-filings must be served electronically to the
e-mail addresses of all parties. The subject matter line
for the transmittal of a document served by e-mail shall
state: “Service of e-filing in case [insert caption of
case].”
c. The parties and the court may agree that, instead
of e-mail service, e-filings may be served to the parties
(but not the court) by facsimile or by traditional means.
For those choosing to accept facsimile service:
i. the parties shall provide the court and the opposing
parties with one facsimile number with appropriate
functionality,
ii. the facsimile number shall serve as the number to
which service may be made,
iii. the sender of the facsimile should obtain a confir-
mation of delivery, and
iv. parties shall comply with the requirements of
MCR 2.406 on the use of facsimile communication
equipment.
d. Proof of Service shall be submitted to the 16th
Circuit Court according to MCR 2.107(D) and these
rules.
7. Format and Form of E-filing and Service
a. A party may only e-file documents for one case in
each transaction.
b. All e-filings shall comply with MCR 1.109 and the
technical requirements of the court’s vendor.
A
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c. Any exhibit or attachment that is part of an e-filing
must be clearly designated and identified as an exhibit
or attachment.
d. All e-filings, subject to subsection 6(c) above, shall
be served on the parties in the same format and form as
submitted to the court.
8. Pleadings, Motions, and Documents not to be
E-filed
The following documents shall not be e-filed during
the pilot program and must be filed by the traditional
methods provided in the MCR and the LAO:
a. initiating documents for case-type codes other
than PH, PJ, PP, and VP,
1
and
b. documents to be filed under seal (pursuant to court
order).
9. Official Court Record; Certified Copies
a. For purposes of this pilot program, e-filings are the
official court record is the electronic version of all
documents filed with the court. An appellate record
shall be certified in accordance with MCR 7.210(A)(1).
b. Certified or true copies of e-filed documents shall
be issued in the conventional manner or through
TrueCertify by the Macomb County Clerk’s Office in
compliance with the Michigan Trial Court Case File
Management Standards.
c. At the conclusion of the pilot program, if the
program does not continue as a pilot project or in some
1
E-file case initiation for case-type codes PH, PJ, PP, and VP will be
supported in Phase 5 of the pilot program and these cases may be
initiated through the TrueFiling web application. It is anticipated
program participants will be able to access TrueFiling through their own
Internet connected device from a remote location, through the Turning
Point office located in the court building, or through additional on-site
court computer kiosks.
cxliv 493 M
ICHIGAN
R
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other format, the clerk shall convert all e-filings to
paper form in accordance with MCR 8.119(D)(1)(d).
Participating attorneys shall provide reasonable assis-
tance in constructing the paper record.
d. At the conclusion of the pilot program, if the
program continues as a pilot project or in another
format, the Clerk shall provide for record retention and
public access in a manner consistent with the instruc-
tions of the court and the court rules.
10. Court Notices, Orders, and Judgments
At the court’s discretion, the court may issue, file,
and serve orders, judgments, and notices as e-filings.
Pursuant to a stipulation and order, the parties may
agree to accept service from the court via facsimile
pursuant to the procedures set forth in Rule 6(c).
11. Technical Malfunctions
a. A party experiencing a technical malfunction with
the party’s equipment (such as Portable Document
Format [PDF] conversion problems or inability to ac-
cess the pilot sites), another party’s equipment (such as
an inoperable e-mail address), or an apparent technical
malfunction of the court’s pilot equipment, software, or
server shall use reasonable efforts to timely file or
receive service by traditional methods and shall provide
prompt notice to the court and the parties of any such
malfunction.
b. If a technical malfunction has prevented a party
from timely filing, responding to, or otherwise perfect-
ing or receiving service of an e-filing, the affected party
may petition the 16th Circuit Court for relief. Such
petition shall contain an adequate proof of the technical
malfunction and set forth good cause for failure to use
non-electronic means to timely file or serve a document.
The court shall liberally consider proof of the technical
A
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malfunction and use its discretion in determining
whether such relief is warranted.
12. Privacy Considerations (Personal Identifiers)
a. With respect to any e-filing, the following require-
ments for personal information shall apply for the
following personal identifiers:
i. Social Security Numbers: Pursuant to Administra-
tive Order No. 2006-2, full social security numbers shall
not be included in e-filings. If an individual’s social
security number must be referenced in an e-filing, only
the last four digits of that number may be used and the
number specified in the following format: XXX-XX-
1234.
ii. Names of Minor Children: Unless named as a
party or otherwise required by statute, court rule, or
administrative order, the identity of minor children
shall not be included in e-filings. If a non-party minor
child must be mentioned, only the initials of that child’s
name may be used.
iii. Dates of Birth: Except as required by statute,
court rule, or administrative order, an An individual’s
full birthdate shall not be included in e-filings. Subject
to the above limitation, if If an individual’s date of birth
is otherwisemust be referenced in an e-filing, only the
year may be used and the date specified in substantially
the following format: XX/XX/1998.
iv. Financial Account Numbers: Full financial ac-
count numbers shall not be included in e-filings unless
required by statute, court rule, or other authority. If a
financial account number must be referenced in an
e-filing, only the last four digits of these numbers may
be used and the number specified in substantially the
following format: XXXXX1234.
cxlvi 493 M
ICHIGAN
R
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v. Driver’s License Numbers and State-Issued Per-
sonal Identification Card Numbers: A person’s full
driver’s license number and state issued personal iden-
tification number shall not be included in e-filings. If an
individual’s driver’s license number or state-issued
personal identification card number must be referenced
in an e-filing, only the last four digits of that number
should be used and the number specified in substan-
tially the following format: X-XXXXXX-XX1-234.
vi. Home Addresses: With the exception of a self-
represented party, full home addresses shall not be
included in e-filings. If an individual’s home address
must be referenced in an e-filing, only the city and state
should be used. For a party whose address has been
made confidential by court order pursuant to MCR
3.203(F), the alternative address shall be treated as
specified above.
b. Parties wishing to file a pleading containing a
complete personal data identifier as listed above may:
i. Pursuant to and in accordance with the MCR and
the LAO, file a motion to file a traditional paper version
of the document under seal. The court, in granting the
motion to file the document under seal, may still
require that an e-filing that does not reveal the com-
plete personal data identifier be filed for the public files;
or,
ii. Pursuant to and in accordance with the applicable
MCR and LAO, obtain a court order to file a traditional
paper reference list under seal. The reference list shall
contain the complete personal data identifiers and the
redacted identifiers used in the e-filing. All references
in the case to the redacted identifiers included in the
reference list shall be construed to refer to the corre-
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. 2010-6 cxlvii
sponding complete personal data identifiers. The refer-
ence list must be filed under seal, and may be amended
as of right.
c. Parties should exercise caution when filing papers
that contain private or confidential information, includ-
ing, but not limited to, the information covered above
and listed below:
i. Medical records, treatment and diagnosis;
ii. Employment history;
iii. Individual financial information;
iv. Insurance information;
v. Proprietary or trade secret information;
vi. Information regarding an individual’s cooperation
with the government; and,
vii. Personal information regarding the victim of any
criminal activity.
d. These rules are designed to protect the private
personal identifiers and information of individuals in-
volved or referenced in actions before the court. Noth-
ing in these rules should be interpreted as authority for
counsel or a self-represented litigant to deny discovery
to the opposing party.
13. Records and Reports: Further, the 16th Circuit
Court shall file an annual report with the Michigan
Supreme Court covering the project to date by January
1 of each year (or more frequently or on another date as
specified by the Court) that outlines the following:
a. Detailed financial data that show the total amount
of money collected in fees for documents filed or served
under the pilot project to date, the original projections
for collections of fees, and whether the projections have
been met or exceeded.
cxlviii 493 M
ICHIGAN
R
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b. Detailed financial information regarding the dis-
tribution or retention of collected fees, including the
amount paid to each vendor ImageSoft, Inc. per docu-
ment and in total for the subject period, the amount
retained by the Court per document and in total for the
period, and whether the monies retained by the Court
are in a separate account or commingled with other
monies.
c. A detailed itemization of all costs attributed to the
project to date and a statement of whether and when
each cost will recur.
d. A detailed itemization of all cost savings to the
Court whether by reduced personnel or otherwise and a
statement of whether any cost savings to the Court are
reflected in the fee structure charged to the parties.
e. Information regarding how the filing and service
fees were calculated and whether it is anticipated that
those fees will be necessary and continued after conclu-
sion of the pilot program.
f. A statement of projections regarding anticipated
e-filing and service-fee collections and expenditures for
the upcoming periods.
14. Amendment
These rules may be amended upon the recommenda-
tion of the participating judges, the approval of the
Chief Judge, and authorization by the State Court
Administrator. Procedural aspects of these rules may be
amended upon the recommendation of the participating
judges, the approval of the Chief Judge, and authoriza-
tion by the State Court Administrator. Proposed sub-
stantive changes, including, for example, a proposed
expansion of the program to permit additional case-type
codes or a proposed change in fees, must be submitted
to the Michigan Supreme Court for approval.
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15. Expiration
Unless otherwise directed by the Michigan Supreme
Court, this pilot program, requiring parties to electroni-
cally file documents in cases assigned to participating
judges, shall continue until December 31, 2012 2015.
cl 493 M
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AMENDED ADMINISTRATIVE
ORDER
No. 2011-1
E
XPANSION OF
E
-FILING IN THE
T
HIRD
C
IRCUIT
C
OURT
(W
AYNE
C
OUNTY
)
Entered March 20, 2013, effective immediately (File No. 2002-37)—
R
EPORTER
.
On order of the Court, effective immediately, Admin-
istrative Order No. 2011-1, as entered February 1, 2011,
and as amended June 28, 2011, and April 4, 2012, is
further amended as follows. Changes are indicated in
underlining and strikeover.
1. [Unchanged.]
2. [Unchanged.]
3. Participation in the Pilot Program
(a) Participation in the pilot project shall be manda-
tory in all pending “CK” type cases. (i.e., CB, CC, CD,
CE, CF, CH, CK, CL, CP, CR, CZ); as well as all pending
ND, NF, NI, and PZ case types. All judges in the 3rd
Circuit Court’s Civil Division shall participate. Expan-
sion into the other Civil Division case types will occur as
follows: upon the effective date of this order, the court
may (except for good cause as stated in the paragraph
below) include the following case-type codes in the
e-filing project: CB (business claims), CC (condemna-
tion), CD (employment discrimination), CE (environ-
ment), CF (forfeiture claims), CH (housing and real
cli
estate), CL (labor relations), CP (antitrust, franchising,
and trade regulations), CR (corporate receivership), CZ
(general civil), and PZ (miscellaneous proceedings, ex-
cept tax foreclosure cases, which are currently assigned
to the chief judge’s docket). Two months after the
effective date of this order, the court may (except for
good cause as stated in the paragraph below) include
the following case-type codes in the e-filing project: ND
(property damage, auto negligence), NF (no-fault auto
insurance) and NI (personal injury auto negligence). all
case types for appeals (case types AA, AE, AP, and AV)
except for the AR case type, all case types for adminis-
trative review, superintending control and extraordi-
nary writs (case types AH, AL, AS, and AW), all remain-
ing civil damage suits (NH, NI, NM, NO, NP, NS, and
NZ); all remaining case types regarding other civil
matters (PC, PD, PR, and PS).
(b) [Unchanged.]
4.-15. [Unchanged.]
clii 493 M
ICHIGAN
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AMENDED ADMINISTRATIVE
ORDER
No. 2011-4
E
XPANSION OF
E
-FILING
P
ILOT
P
ROJECT IN THE
20
TH
C
IRCUIT
C
OURT
,
THE
O
TTAWA
C
OUNTY
P
ROBATE
C
OURT
,
AND THE
58
TH
D
ISTRICT
C
OURT
(O
TTAWA
C
OUNTY
T
RIAL
C
OURTS
)
TO
I
NCLUDE
A
DDITIONAL
C
ASE
T
YPES
Entered January 23, 2013 (File No. 2002-37)—R
EPORTER
.
On order of the Court, the 20th Circuit Court, the
Ottawa County Probate Court, and the 58th District
Court (hereafter Ottawa County or participating
courts) are authorized to implement an Electronic
Document Filing Pilot Project. The pilot project is
established to study the effectiveness of electronically
filing court documents in lieu of traditional paper
filings. The pilot project shall begin October 1, 2011, or
as soon thereafter as is possible, and shall remain in
effect until December 31, 2016, or further order of this
Court. The participating courts are aware that rules
regarding electronic filing have been published for
comment by this Court. If this Court adopts electronic
filing rules during the pendency of Ottawa County’s
Electronic Document Filing Pilot Project, the partici-
pating courts will, within 60 days of the effective date of
the rules, comply with the requirements of those rules.
The participating courts will track the participation
and effectiveness of this pilot program and shall report
cliii
to and provide relevant information as requested by the
State Court Administrative Office.
On further order of the Court, effective immediately,
Administrative Order No. 2011-4 is amended as follows.
[Additions to the text are indicated in underlin-
ing and deleted text is shown in strikeover.]
1. [Unchanged.]
2. Definitions
a. “Clerk” means the Ottawa County Clerk and
clerks of the participating courts.
b. “E-Filing” means any court pleading, motion, brief,
response, list, order, judgment, notice, or other document
filed electronically pursuant to the pilot program.
c. “LAO” means all local administrative orders gov-
erning the participating courts.
d. “MCR” means the Michigan Court Rules.
e. “Pilot program” means the e-filing initiative of the
participating courts, the County Clerk, and the Ottawa
County Information Technology Department in con-
junction with ImageSoft, Inc., and under the supervi-
sion of the State Court Administrative Office. This
e-filing application facilitates the electronic filing of
pleadings, motions, briefs, responses, lists, orders, judg-
ments, notices, and other documents in the following
case types:.
[The following paragraphs have been as-
signed sequential numbers and contain re-
vised language from former paragraph “e.”]
i. The 20th Circuit pilot program will begin testing
with adoption case types AB, AC, AD, AF, AG, AM, AN,
cliv 493 M
ICHIGAN
R
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AO, AY, civil case types ND, NF, NH, NI, NM, NO, NP,
NS, NZ, CB, CC, CD, CE, CF, CH, CK, CL, CP, CR, CZ,
PC, PD, PR, PS, PZ, criminal case types FC and FH, and
domestic relations case types DC, DM, DO, DP, DS, DZ,
UD, UE, UF, UI, UM, UN, UT, UW;, and neglect/abuse
case type NA.
ii. tThe Ottawa County Probate Court will begin
testing with civil case type CZ;.
iii. and tThe 58th District Court will begin testing
with general civil case type GC as part of Phase I and
additionally in other case types as follows:.
1. Phase II: Summary proceedings case types, includ-
ing LT and SP, beginning with the effective date of this
order.
2. Phase III: Post disposition collection proceedings
in small claims proceedings (“SC”) beginning with the
effective date of this order.
3. Phase IV: Criminal proceedings case types, includ-
ing EX, FY, OM, SM, FD, FT, OD, OI, OT, SD, SI, ST,
OK, ON, SK, and SN, beginning not less than six
months after implementation of Phase II and III.
f. “Technical malfunction” means any hardware,
software, or other malfunction that prevents a user
from timely filing a complete e-filing or sending or
receiving service of an e-filing.
g. “Web-based portal” means a website provided by
ImageSoft where electronic filings may be submitted
and delivered to the participating courts’ OnBase work-
flow.
3.-11. [Unchanged.]
12. Privacy Considerations
a. With respect to any e-filing, the following require-
ments for personal information shall apply:
A
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. 2011-4 clv
i. Social Security Numbers. Pursuant to Administra-
tive Order No. 2006-2, full social security numbers shall
not be included in e-filings. If an individual’s social
security number must be referenced in an e-filing, only
the last four digits of that number may be used and the
number specified in substantially the following format:
XXX-XX-1234.
ii. Names of Minor Children. Unless named as a party
or otherwise required by statute, court rule, or admin-
istrative order, the identity of minor children shall not
be included in e-filings. If a non-party minor child must
be mentioned, only the initials of thethat child’s name
may be used.
iii. Dates of Birth. Except as required by statute,
court rule, or administrative order, Anan individual’s
full birthdate shall not be included in e-filings. Subject
to the above limitation, if If an individual’s date of birth
is otherwisemust be referenced in an e-filing, only the
year may be used and the date specified in substantially
the following format: XX/XX/1998.
iv. Financial Account Numbers. Full financial ac-
count numbers shall not be included in e-filings unless
required by statute, MCR, or other authority. If a
financial account number must be referenced in an
e-filing, only the last four digits of the number may be
used and the number specified in substantially the
following format: XXXXX1234.
v. Driver’s License Numbers and State-Issued Per-
sonal Identification Card Numbers. A person’s full
driver’s license number and state-issued personal iden-
tification number shall not be included in e-filings. If an
individual’s driver’s license number or state-issued
personal identification card number must be referenced
in e-filing, only the last four digits of that number
clvi 493 M
ICHIGAN
R
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should be used and the number specified in substan-
tially the following format X-XXX-XXX-XX1-234.
vi. Home Addresses. With the exception of a self-
represented party, full home addresses shall not be
included in e-filings. If an individual’s home address
must be referenced in an e-filing, only the city and state
shall be used.
b. Parties wishing to file a complete personal data
identifier listed above may:
i. Pursuant to and in accordance with the MCR and
the LAO, file a motion to file a traditional paper version
of the document under seal. The participating courts, in
granting the motion to file the document under seal,
may still require that an e-filing that does not reveal the
complete personal data identifier be filed for the public
files, or
ii. Pursuant to and in accordance with the applicable
MCR and LAO, obtain a court order to file a traditional
paper reference list under seal. The reference list shall
contain the complete personal data identifiers and the
redacted identifiers included in the reference list shall
be construed to refer to the corresponding complete
personal data identifiers. The reference list must be
filed under seal, and may be amended as of right.
c. Parties should exercise caution when filing papers
that contain private or confidential information, includ-
ing, but not limited to, the information covered above
and listed below:
i. Medical records, treatment and diagnosis;
ii. Employment history;
iii. Individual financial information;
iv. Insurance information;
v. Proprietary or trade secret information;
A
MENDED
A
DM
O
RDER
N
O
. 2011-4 clvii
vi. Information regarding an individual’s cooperation
with the government; and
vii. Personal information regarding the victim of any
criminal activity.
13.-15. [Unchanged.]
clviii 493 M
ICHIGAN
R
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AMENDMENTS OF MICHIGAN
COURT RULES OF 1985
Adopted September 19, 2012, effective January 1, 2013 (File No.
2010-14)—R
EPORTER
.
[Additions are indicated by underlining and
deletions are indicated by strikeover in MCR
6.001; MCR 6.202 is a new rule.]
R
ULE
6.001. S
COPE
;A
PPLICABILITY OF
C
IVIL
R
ULES
;S
UPER-
SEDED
R
ULES AND
S
TATUTES
.
(A) Felony Cases. The rules in subchapters 6.000-
6.500 govern matters of procedure in criminal cases
cognizable in the circuit courts and in courts of equiva-
lent criminal jurisdiction.
(B) Misdemeanor Cases. MCR 6.001-6.004, 6.005(B)
and (C), 6.006, 6.102(D) and (F), 6.106, 6.125, 6.202,
6.427, 6.445(A)-(G), and the rules in subchapters 6.600-
6.800 govern matters of procedure in criminal cases
cognizable in the district courts.
(C)-(E) [Unchanged.]
R
ULE
6.202. D
ISCLOSURE OF
F
ORENSIC
L
ABORATORY
R
EPORT
AND
C
ERTIFICATE
;A
PPLICABILITY
;A
DMISSIBILITY OF
R
EPORT
AND
C
ERTIFICATE
;E
XTENSION OF
T
IME
;A
DJOURNMENT
.
(A) This rule shall apply to criminal trials in the
district and circuit courts.
clix
(B) Disclosure. Upon receipt of a forensic laboratory
report and certificate, if applicable, by the examining
expert, the prosecutor shall serve a copy of the laboratory
report and certificate on the opposing party’s attorney or
party, if not represented by an attorney, within 14 days
after receipt of the laboratory report and certificate. A
proof of service of the report and certificate, if applicable,
on the opposing party’s attorney or party, if not repre-
sented by an attorney, shall be filed with the court.
(C) Notice and Demand.
(1) Notice. If a party intends to offer the report
described in subsection (B) as evidence at trial, the
party’s attorney or party, if not represented by an
attorney, shall provide the opposing party’s attorney or
party, if not represented by an attorney, with notice of
that fact in writing. If the prosecuting attorney intends
to offer the report as evidence at trial, notice to the
defendant’s attorney or the defendant, if not repre-
sented by an attorney, shall be included with the report.
If the defendant intends to offer the report as evidence
at trial, notice to the prosecuting attorney shall be
provided within 14 days after receipt of the report.
Except as provided in subrule (C)(2), the report and
certification, if applicable, is admissible in evidence to
the same effect as if the person who performed the
analysis or examination had personally testified.
(2) Demand. Upon receipt of a copy of the laboratory
report and certificate, if applicable, the opposing party’s
attorney or party, if not represented by an attorney, may
file a written objection to the use of the laboratory
report and certificate. The written objection shall be
filed with the court in which the matter is pending, and
shall be served on the opposing party’s attorney or
party, if not represented by an attorney, within 14 days
of receipt of the notice. If a written objection is filed, the
clx 493 M
ICHIGAN
R
EPORTS
report and certificate are not admissible under subrule
(C)(1). If no objection is made to the use of the labora-
tory report and certificate within the time allowed by
this section, the report and certificate are admissible in
evidence as provided in subrule (C)(1).
(3) For good cause the court shall extend the time
period of filing a written objection.
(4) Adjournment. Compliance with this court rule
shall be good cause for an adjournment of the trial.
(D) Certification. Except as otherwise provided, the
analyst who conducts the analysis on the forensic
sample and signs the report shall complete a certificate
on which the analyst shall state (i) that he or she is
qualified by education, training, and experience to
perform the analysis, (ii) the name and location of the
laboratory where the analysis was performed, (iii) that
performing the analysis is part of his or her regular
duties, and (iv) that the tests were performed under
industry-approved procedures or standards and the
report accurately reflects the analyst’s findings and
opinions regarding the results of those tests or analysis.
A report submitted by an analyst who is employed by a
laboratory that is accredited by a national or interna-
tional accreditation entity that substantially meets the
certification requirements described above may provide
proof of the laboratory’s accreditation certificate in lieu
of a separate certificate.
Staff Comment: The revision of MCR 6.001 provides a cross reference
to MCR 6.202, a new rule adopted in this order. MCR 6.202 incorporates
a “notice and demand” procedure into the Michigan Court Rules with
regard to forensic reports. Under the rule, a party could seek to admit a
forensic report as evidence if notice requirements are met and no
objection is filed. If a party objects to admission of the report, the analyst
would be required to testify.
The staff comment is not an authoritative construction by the Court.
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxi
Adopted October 3, 2012, effective January 1, 2013 (File No. 2011-
08)—R
EPORTER
.
[Additions to the text are indicated in underlin-
ing and deleted text is shown by strikeover.]
R
ULE
2.116. S
UMMARY
D
ISPOSITION
.
(A)-(B) [Unchanged.]
(C) Grounds. The motion may be based on one or
more of these grounds, and must specify the grounds on
which it is based:
(1)-(6) [Unchanged.]
(7) The claim is barred Entry of judgment, dismissal
of the action, or other relief is appropriate because of
release, payment, prior judgment, immunity granted by
law, statute of limitations, statute of frauds, an agree-
ment to arbitrate or to litigate in a different forum,
infancy or other disability of the moving party, or
assignment or other disposition of the claim before
commencement of the action.
(8)-(10) [Unchanged.]
(D)-(J) [Unchanged.]
Staff Comment: Inclusion of the revised language in MCR 2.116(C)(7)
clarifies the procedure for bringing a motion for summary disposition on
the grounds of a forum selection clause.
The staff comment is not an authoritative construction by the Court.
Adopted October 3, 2012, effective January 1, 2013 (File No. 2011-
06)—R
EPORTER
.
[Additions are indicated by underlining and
deletions are indicated by strikeover.]
R
ULE
2.603. D
EFAULT AND
D
EFAULT
J
UDGMENT
.
(A) [Unchanged.]
clxii 493 M
ICHIGAN
R
EPORTS
(B) Default Judgment.
(1) [Unchanged.]
(2) Default Judgment Entered by Clerk. On request of
the plaintiff supported by an affidavit as to the amount
due, the clerk may sign and enter a default judgment for
that amount and costs against the defendant, if
(a) the plaintiff’s claim against a defendant is for a
sum certain or for a sum that can by computation be
made certain;
(b) the default was entered because the defendant
failed to appear; and
(c) the defaulted defendant is not an infant or incom-
petent person, and.
(d) the damages amount requested is not greater
than the amount stated in the complaint.
(3)-(4) [Unchanged.]
(C)-(E) [Unchanged.]
Staff Comment: The amendment of MCR 2.603 clarifies that a court
clerk may enter a default judgment if the requested damages are less
than the amount claimed in the original complaint, to reflect payments
that may have been made or otherwise credited.
The staff comment is not an authoritative construction by the Court.
Adopted October 3, 2012, effective January 1, 2013 (File No. 2012-10)—
R
EPORTER
.
[Additions to the text are indicated in underlin-
ing and deleted text is shown by strikeover.]
R
ULE
3.979. J
UVENILE
G
UARDIANSHIPS
.
(A)–(B) [Unchanged.]
(C) Court Jurisdiction; Review Hearings; Lawyer-
Guardian ad Litem.
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxiii
(1) Jurisdiction. The court’s jurisdiction over a juvenile
guardianship shall continue until terminated by court
order. The court’s jurisdiction over a juvenile under sec-
tion 2(b) of the Juvenile Code, MCL 712A.2(b), and the
jurisdiction of the MCI under section 3 of 1935 PA 220,
MCL 400.203, shall be terminated after the court appoints
a juvenile guardian under this section and conducts a
review hearing pursuant to MCR 3.975 when parental
rights to the child have not been terminated, or a review
hearing pursuant to MCR 3.978 when parental rights to
the child have been terminated. Upon notice by the
Department of Human Services that extended guardian-
ship assistance beyond age 18 will be provided to a youth
pursuant to MCL 400.665, the court shall retain jurisdic-
tion over the guardianship until that youth no longer
receives extended guardianship assistance.
(2) Review Hearings. The review hearing following
appointment of the juvenile guardian must be con-
ducted within 91 days of the most recent review hearing
if it has been one year or less from the date the child
was last removed from the home, or within 182 days of
the most recent review hearing if it has been more than
one year from the date the child was last removed from
the home.
(3) Lawyer-Guardian ad Litem. The appointment of the
lawyer-guardian ad litem in the child protective proceed-
ing terminates upon entry of the order terminating the
court’s jurisdiction pursuant to MCL 712A.2(b). At any
time after a juvenile guardian is appointed, the court may
reappoint the lawyer-guardian ad litem or may appoint a
new lawyer-guardian ad litem if the court is satisfied that
such action is warranted. A lawyer-guardian ad litem
appointed under this subrule is subject to the provisions of
MCL 712A.17d.
(D) Court Responsibilities.
clxiv 493 M
ICHIGAN
R
EPORTS
(1) Annual Review.
(a) The court shall conduct a review of a juvenile
guardianship annually. The review shall be commenced
within 63 days after the anniversary date of the ap-
pointment of the guardian. The court may conduct a
review of a juvenile guardianship at any time it deems
necessary. If the report of the juvenile guardian has not
been filed as required by subrule (E)(1), the court shall
take appropriate action.
(b) If extended guardianship assistance has been
provided to a youth pursuant to MCL 400.665, the court
shall conduct an annual review hearing at least once
every 12 months after the youth’s eighteenth birthday
to determine that the guardianship meets the criteria
under MCL 400.667. Notice of the hearing shall be sent
to the guardian and the youth as provided in MCR
3.920(D)(1). The court shall issue an order to support
its determination and serve the order on the Depart-
ment of Human Services, the guardian, and the youth.
(2)–(4) [Unchanged.]
(E)–(F) [Unchanged.]
Staff Comment: The amendment of MCR 3.979 implements the
judicial action requirements of 2011 PA 225 and 2011 PA 229 by: (1)
acknowledging court jurisdiction over guardianships for which the De-
partment of Human Services will continue providing subsidies after the
wards reach age 18; and (2) requiring that the supervising courts conduct
annual review hearings and make appropriate findings. Adoption of the
amendment enables Michigan to receive federal Title IV-E funding for
the post-18 guardianship program.
The staff comment is not an authoritative construction by the Court.
Adopted October 3, 2012, effective January 1, 2013 (File No. 2010-03)—
R
EPORTER
.
[Additions to the text are indicated in underlin-
ing and deleted text is shown by strikeover.]
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxv
R
ULE
9.113. A
NSWER BY
R
ESPONDENT
.
(A) Answer. Within 21 days after being served with a
request for investigation under MCR 9.112(C)(1)(b) or
such further time as permitted by the administrator,
the respondent shall file with the administrator a
written answer signed by respondent in duplicate fully
and fairly disclosing all the facts and circumstances
pertaining to the alleged misconduct. Misrepresenta-
tion in the answer is grounds for discipline. Respon-
dent’s signature constitutes verification that he or she
has read the document. The administrator shall provide
a copy of the answer and any supporting documents, or
documents related to a refusal to answer under MCR
9.113(B)(1), to the person who filed the request for
investigation unless the. If the administrator deter-
mines that there is cause for not disclosing some or all
of the answer or documents supporting the answer,
then the administrator need not provide those portions
of the answer or the supporting documents to the
person who filed the request for investigation.
(B)-(D) [Unchanged.]
Staff Comment: The amendment of MCR 9.113(A) clarifies that the
grievance administrator has the discretion to withhold all or part of
respondent’s answer and any supporting documents from the person who
filed the request for investigation.
The staff comment is not an authoritative construction by the Court.
Adopted October 24, 2012, effective immediately (File No. 2011-25)—
R
EPORTER
.
On order of the Court, the need for immediate action
having been found, the following amendment of Rule
3.101 of the Michigan Court Rules is adopted, effective
immediately and pending public comment. This notice is
given to afford interested persons the opportunity to
clxvi 493 M
ICHIGAN
R
EPORTS
comment on the form or the merits of the amendment or
to suggest alternatives. The Court welcomes the views of
all. This matter will be considered at a public hearing. The
notices and agendas for public hearings are posted at
<http://www.courts.mi.gov/courts/michigansupremecourt/
rules/pages/public-administrative-hearings.aspx>.
[Additions to the text are indicated in underlin-
ing and deleted text is shown by strikeover.]
R
ULE
3.101. G
ARNISHMENT
A
FTER
J
UDGMENT
.
(A) [Unchanged.]
(B) Postjudgment Garnishments.
(1) Periodic garnishments are garnishments of peri-
odic payments, as provided in this rule.
(a) Unless otherwise ordered by the court, a writ of
periodic garnishment served on a garnishee who is
obligated to make periodic payments to the defendant
is effective until the first to occur of the following
events:
(i) the amount withheld pursuant to the writ equals
the amount of the unpaid judgment, interest, and costs
stated in the verified statement in support of the writ;
(ii) the expiration of 91 182 days after the date the
writ was issued;
(iii) the plaintiff files and serves on the defendant
and the garnishee a notice that the amount withheld
exceeds the remaining unpaid judgment, interest,
and costs, or that the judgment has otherwise been
satisfied.
(b)-(c) [Unchanged.]
(2) [Unchanged.]
(C)-(D) [Unchanged.]
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxvii
(E) Writ of Garnishment.
(1) The writ of garnishment must have attached or
must include a copy of the verified statement request-
ing issuance of the writ, and must include information
that will permit the garnishee to identify the defendant,
such as the defendant’s address, social security number,
employee identification number, federal tax identifica-
tion number, employer number, or account number, if
known.
(2) Upon issuance of the writ, it shall be served upon
the garnishee as provided in subrule (F)(1). The writ
shall include the date on which it was issued and the
last day by which it must be served to be valid, which is
91 182 days after it was issued.
(3)-(4) [Unchanged.]
(5) The writ shall inform the defendant that unless
the defendant files objections within 14 days after the
service of the writ on the defendant,
(a) without further notice the property or debt held
pursuant to the garnishment may be applied to the
satisfaction of the plaintiff’s judgment, and
(b) periodic payments due to the defendant may be
withheld for as long as 91 days after the issuance until
the expiration of the writ and in the discretion of the
court paid directly to the plaintiff.
(6) [Unchanged.]
(F)-(T) [Unchanged.]
Staff Comment: The amendments of MCR 3.101 are adopted to reflect
recent statutory changes enacted in MCL 600.4012(1) in which the
effective period for a periodic garnishment of wages, salary, and other
earnings was extended from 91days to 182 days. The amendments of
MCR 3.101(B) and (E) change the effective period for all periodic
garnishments to 182 days. (The amendments do not limit the 182-day
effective period to periodic garnishments that only involve wages, salary,
and other earnings.)
clxviii 493 M
ICHIGAN
R
EPORTS
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on this amendment may be sent to the
Supreme Court Clerk in writing or electronically by February 1, 2013, at P.O.
a comment, please refer to ADM File No. 2011-25. Your comments and the
comments of others will be posted at <http://www.courts.mi.gov/
courts/michigansupremecourt/rules/court-rules-admin-matters/pages/
chapter-3-special-proceedings-and actions.aspx>.
Adopted October 31, 2012, effective January 1, 2013 (File No. 2006-
47)—R
EPORTER
.
[Additions to the text are indicated in underlin-
ing and deleted text is shown by strikeover.]
R
ULE
1.109. P
APER AND
T
YPE
-S
IZE
S
TANDARD
C
OURT
R
ECORDS
D
EFINED
;D
OCUMENT
D
EFINED
;F
ILING
S
TAN-
DARDS
;S
IGNATURES
;
AND
A
CCESS
.
(A) Court Records Defined.
(1) Court records are defined by MCR 8.119 and this
subrule. Court records are recorded information of any
kind that has been created by the court or filed with the
court in accordance with Michigan Court Rules. Court
records may be created using any means and may be
maintained in any medium authorized by these court
rules provided those records comply with other provi-
sions of law and these court rules.
(a) Court records include, but are not limited to:
(i) documents, attachments to documents, discovery
materials, and other materials filed with the clerk of the
court,
(ii) documents, recordings, data, and other recorded
information created or handled by the court, including
all data produced in conjunction with the use of any
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxix
system for the purpose of transmitting, accessing, re-
producing, or maintaining court records.
(b) For purposes of this subrule:
(i) Documents include, but are not limited to, plead-
ings, orders, and judgments.
(ii) Recordings refer to audio and video recordings
(whether analog or digital), stenotapes, log notes, and
other related records.
(iii) Data refers to any information entered in the
case management system that is not ordinarily reduced
to a document, but that is still recorded information.
(iv) Other recorded information includes, but is not
limited to, notices, bench warrants, arrest warrants,
and other process issued by the court that do not have
to be maintained on paper or digital image.
(2) Discovery materials that are not filed with the
clerk of the court are not court records. Exhibits that
are maintained by the court reporter or other autho-
rized staff pursuant to MCR 2.518 or MCR 3.930 during
the pendency of a proceeding are not court records.
(B) Document Defined. A document means a record
produced on paper or a digital image of a record
originally produced on paper or originally created by an
approved electronic means, the output of which is
readable by sight and can be printed to paper.
(C) Filing Standards.
(A)(1) All pleadings and other documents papers
prepared for filing in the courts of this state must
comply with MCR 8.119(C) and be filed on good quality
8
1
/
2
by 11 inch paper, or transmitted through an ap-
proved electronic means or created electronically by the
court and maintained in a digital image. and tThe print
must be no smaller than 12-point type 10 characters per
clxx 493 M
ICHIGAN
R
EPORTS
inch (nonproportional) or 12-point (proportional), ex-
cept with regard. This requirement does not apply to
(1) forms approved by the State Court Administra-
tive Office, and .
(2) attachments and exhibits, but parties are encour-
aged to reduce or enlarge such papers to 8
1
/
2
by 11
inches, if practical All other materials submitted for
filing shall be prepared in accordance with this subrule
and standards established by the state court adminis-
trative office. An attachment or discovery material that
is submitted for filing shall be made part of the public
case file unless otherwise confidential.
(3) All original documents filed on paper may be
reproduced and maintained by the court as a digital
image in place of the paper original in accordance with
standards and guidelines established by the state court
administrative office.
(B)(4) Court clerks A clerk of the court may not
accept reject nonconforming papersdocuments as pre-
scribed by MCR 8.119except on written direction of a
judge.
(C)(D) [Unchanged from language adopted May 24,
2012, except subrule (C) is now relettered subrule (D).]
(E) Requests for access to public court records shall
be granted in accordance with MCR 8.119(H).
R
ULE
2.107. S
ERVICE AND
F
ILING OF
P
LEADINGS AND
O
THER
P
APERS.
(A)-(F) [Unchanged.]
(G) Filing With Court Defined. The filing of p Plead-
ings and other papers materials filed with the court as
required by these rules must be filed with the clerk of
the court in accordance with standards prescribed by
MCR 1.109(C), except that the judge to whom the case
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxxi
is assigned may accept papers materials for filing when
circumstances warrant. A judge who does so shall note
the filing date on the papersmaterials and immediately
transmit them forthwithto the clerk. It is the responsi-
bility of the party who presented the papers materials
to confirm that they have been filed with the clerk. If
the clerk dockets records papers the receipt of materials
on a date other than the filing date, the clerk shall
noterecord the filing date on the register of actions.
R
ULE
2.113. F
ORM OF
P
LEADINGS AND
O
THER
P
APERS
.
(A) [Unchanged.]
(B) Preparation. Every pleading must be legibly
printed in the English language in type no smaller than
12 point and in compliance with MCR 1.109.
(C)-(G) [Unchanged.]
R
ULE
2.114. S
IGNATURES OF
A
TTORNEYS AND
P
ARTIES
;V
ERI-
FICATION
;E
FFECT
;S
ANCTIONS
.
(A)-(B) [Unchanged.]
(C) Signature.
(1)-(2) [Unchanged.]
(3) An electronic signature is acceptable provided it
complies with MCR 1.109(D).
(D)-(F) [Unchanged.]
R
ULE
2.302. G
ENERAL
R
ULES
G
OVERNING
D
ISCOVERY
.
(A)-(G) [Unchanged.]
(H) Filing and Service of Discovery Materials.
(1) Unless a particular rule requires filing of discov-
ery materials, requests, responses, depositions, and
other discovery materials may not be filed with the
court except as follows:
clxxii 493 M
ICHIGAN
R
EPORTS
(a) If discovery materials are to be used in connection
with a motion, they must either be filed separately or be
attached to the motion or an accompanying affidavit;
(b) If discovery materials are to be used at trial they
must be either filed or made an exhibit pursuant to
MCR 2.518 or MCR 3.930;
(c) The court may order discovery materials to be
filed.
(2) Copies of discovery materials served under these
rules must be served on all parties to the action, unless
the court has entered an order under MCR 2.107(F).
(3) On appeal, only discovery materials that were
filed or made exhibits are part of the record on appeal.
(4) Removal and destruction of discovery materials
are governed by MCR 2.316.
R
ULE
2.518. R
ECEIPT AND
R
ETURN OR
D
ISPOSAL OF
E
XHIB-
ITS
.
(A) Receipt of Exhibits. Except as otherwise required
by statute or court rule, materials that are intended to
be used as evidence at or during a trial shall not be filed
with the clerk of the court, but shall be submitted to the
judge for introduction into evidence as exhibits. Exhib-
its introduced into evidence at or during court proceed-
ings shall be received and maintained as provided by
Michigan Supreme Court trial court case file manage-
ment standards. As defined in MCR 1.109, exhibits
received and accepted into evidence under this rule are
not court records.
(B) Return or Disposal of Exhibits. At the conclu-
sion of a trial or hearing, the court shall direct
exhibits should be retrieved by the parties to retrieve
the exhibits submitted by submitting them except
that any weapons and drugs shall be returned to the
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxxiii
confiscating agency for proper disposition. If the
exhibits are not retrieved by the parties as directed,
within 56 days after conclusion of the trial or hearing,
the court may properly dispose of the exhibits with-
out notice to the parties.
(C) Confidentiality. If the court retains discovery
materials filed pursuant to MCR 1.109(C) or an exhibit
submitted pursuant to this rule after a hearing or trial
and the material is confidential as provided by law,
court rule, or court order pursuant to MCR 8.119(I), the
court must continue to maintain the material in a
confidential manner.
R
ULE
3.001. A
PPLICABILITY AND
S
COPE
.
The rules in this chapter apply in circuit court and in
other courts as provided by law or by these rules.
Except as otherwise provided in this chapter and law,
proceedings under this chapter are governed by Michi-
gan Court Rules.
R
ULE
3.218. A
CCESS TO FRIEND OF THE
C
OURT
R
ECORDS;
ACCESS.
(A) General Definitions. When used in this subrule,
unless the context indicates otherwise,
(1) “records” means paper files, computer files, mi-
crofilm, microfiche, audio tape, video tape, and photo-
graphs, and includes records as defined in MCR 1.109;
(2)-(3) [Unchanged.]
(B)-(H) [Unchanged.]
R
ULE
3.800. A
PPLICABLE
R
ULES
;I
NTERESTED
P
ARTIES
;I
N-
DIAN
C
HILD
.
(A) Generally. Except as modified by MCR 3.801-
3.8067, adoption proceedings, are governed by the rules
generally applicable to civil proceedings Michigan Court
Rules.
clxxiv 493 M
ICHIGAN
R
EPORTS
(B) [Unchanged.]
R
ULE
3.901. A
PPLICABILITY OF
R
ULES
.
(A) Scope.
(1) The rules in this subchapter, in subchapter 1.100,
and in MCR 5.113, and in subchapter 8.100 govern
practice and procedure in the family division of the
circuit court in all cases filed under the Juvenile Code.
(2)-(3) [Unchanged.]
(B) [Unchanged.]
R
ULE
3.903. D
EFINITIONS
.
(A) General Definitions. When used in this subchap-
ter, unless the context otherwise indicates:
(1)-(24) [Unchanged.]
(25) “Records” are as defined in MCR 1.109 and
include means the pleadings, motions, authorized peti-
tions, notices, memorandaums, briefs, exhibits, avail-
able transcripts, findings of the court, registers of
actions, and court orders.
(26)-(27) [Unchanged.]
(B)-(F) [Unchanged.]
R
ULE
3.930. R
ECEIPT AND
R
ETURN OR
D
ISPOSAL OF
E
XHIBITS
IN
J
UVENILE
P
ROCEEDINGS
.
(A) Receipt of Exhibits. Except as otherwise required
by statute or court rule, materials that are intended to
be used as evidence at or during a trial shall not be filed
with the clerk of the court, but shall be submitted to the
judge for introduction into evidence as exhibits. Exhib-
its introduced into evidence at or during court proceed-
ings shall be received and maintained as provided by
the Michigan Supreme Court trial court cCase fFile
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxxv
mManagement sStandards. As defined in MCR 1.109,
exhibits received and accepted into evidence under this
rule are not court records.
(B) Return or Disposal of Exhibits. At the conclusion
of a trial or hearing, the court shall direct exhibits
should be retrieved by the parties who to retrieve the
exhibits submitted by them except that any weapons
and drugs shall be returned to the confiscating agency
for proper disposition. If the exhibits are not retrieved
by the parties as directed, within 56 days after conclu-
sion of the trial or hearing, the court may properly
dispose of the exhibits without notice to the parties.
(C) Confidentiality. If the court retains discovery
materials filed pursuant to MCR 1.109(C) or an exhibit
submitted pursuant to this rule after a hearing or trial
and the exhibit material is confidential as provided by
MCR 3.903(A)(3) or order of the court pursuant to MCR
8.119(I), the court must continue to maintain the
exhibit material in a confidential manner.
R
ULE
4.001. A
PPLICABILITY
.
Procedure in the district and municipal courts is
governed by the rules applicable to other actions. The
rules in this chapter apply to the specific types of
proceedings within the jurisdiction of the district and
municipal courts. Except as otherwise provided in this
chapter, proceedings under this chapter are governed by
Michigan Court Rules.
R
ULE
5.101. F
ORM AND
C
OMMENCEMENT OF
A
CTION
;C
ONFI-
DENTIAL
R
ECORDS
.
(A)-(C) [Unchanged.]
(D) Records are public except as otherwise indicated
in court rule and statute.
clxxvi 493 M
ICHIGAN
R
EPORTS
R
ULE
5.113. P
APERS
;F
ORM AND
F
ILING
.
(A) Form of Papers Generally.
(1) An application, petition, motion, inventory, re-
port, account, or other paper in a proceeding must
(a) comply with MCR 1.109 and be legibly typewrit-
ten or printed in ink in the English language, and
(b)-(c) [Unchanged.]
(2) A judge or register shall not receive and file a
nonconforming paper may reject nonconforming docu-
ments in accordance with MCR 8.119.
(B)-(D) [Unchanged.]
R
ULE
5.731. C
ONFIDENTIAL
R
ECORDS
.
Records are public except as otherwise indicated in
court rule or statute.
R
ULE
6.007. C
ONFIDENTIAL
R
ECORDS
.
Records are public except as otherwise indicated in
court rule or statute.
R
ULE
8.108. C
OURT
R
EPORTERS AND
R
ECORDERS
.
(A)-(B) [Unchanged.]
(C) Records Kept. All records, as defined in MCR
8.119(F) and regardless of format, that are created and
kept by the court reporter or recorder belong to the
court, must remain in the physical possession of the
court, and are subject to access in accordance with MCR
8.119(H). The court reporter or recorder who takes the
testimony on the trial or the hearing of any case shall
prefix the record of the testimony of each witness with
the full name of the witness and the date and time the
testimony was taken. At the conclusion of the trial of
the case the reporter or recorder shall secure all of the
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxxvii
records and properly entitle them on the outside, and
shall safely keep them in his or her office the court
according to the Michigan Trial Court Case File Man-
agement Standards. If the court reporter or recorder
needs access to the records for purposes of transcribing
off-site, the reporter or recorder may take only a repro-
duction of the original recording, which must be re-
turned to the court upon filing of the transcript.
(D) Transfer of Records; Inspection. If the court
reporter or recorder dies, resigns, is removed from
office, or leaves the state, his or her records he or she
created and kept in each case pursuant to subrule (C)
must be transferred to the clerk of the court in which
the case was tried. The clerk shall safely keep the
records subject to the direction of the court in accor-
dance with the Michigan Trial Court Case File Manage-
ment Standards and MCR 8.119(F). The records are a
part of the record of each case and are subject to
inspection in the same manner as other records. On
order of the court, a transcript may shall be made from
the records and filed as a part of the public record in the
case.
(E)-(G) [Unchanged.]
R
ULE
8.119. C
OURT
R
ECORDS AND
R
EPORTS
;D
UTIES OF
C
LERKS
.
(A) Applicability. This rule applies to all actions
records in every trial court except that subrule (D)(1)
does not apply to civil infractions. For purposes of this
rule, records are as defined in MCR 1.109, MCR 3.218,
MCR 3.903, and MCR 8.119(D)-(G).
(B) Records Standards. The clerk of the court shall
comply with the records standards in this rule, MCR
1.109, and as otherwise prescribed by the Michigan
Supreme Court.
clxxviii 493 M
ICHIGAN
R
EPORTS
(C) Filing of PapersDocuments and Other Materials.
The clerk of the court shall endorse on the first page of
every document the date on which it is filed. Papers
Documents and other materials filed with the clerk of
the court as defined in MCR 2.107(G) must comply with
Michigan Court Rules and Michigan Supreme Court
records standards. The clerk of the court may only
reject papers documents which do not conform to MCR
2.113(C)(1) and MCR 5.113(A)(1)that do not meet the
following minimum filing requirements:
(1) standards prescribed by MCR 1.109,
(2) legibility and language as prescribed by MCR
2.113(B) and MCR 5.113,
(3) captioning prescribed by MCR 2.113(C)(1) and
MCR 5.113,
(4) signature prescribed by MCR 2.114(C) and MCR
5.114, and
(5) the filing fee is not paid at the time of filing,
unless waived or suspended by court order.
(D) Records Kept by the Clerk of the Court. The clerk
of the court of every trial court shall keep the following
case records in the form and style the court prescribes
and in accordance with the court rules, Michigan Su-
preme Court records standards and local court plans. A
court may adopt a computerized, microfilm, or word-
processing system for maintaining records that sub-
stantially complies with this subrule. Documents and
other materials made confidential by court rule, stat-
ute, or order of the court pursuant to subrule (I) must
be designated as confidential and maintained to allow
only authorized access. In the event of transfer or
appeal of a case, every rule, statute, or order of the court
pursuant to subrule (I) that makes a document or other
materials in that case confidential applies uniformly to
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxxix
every court in Michigan, irrespective of the court in
which the document or other materials were originally
filed.
(1) Indexes and Case Files. Except for civil infrac-
tions, Tthe clerk shall keep and maintain records of
each case consisting of a numerical index, an alphabeti-
cal index, a register of actions, and a case file in such
form and style as may be prescribed by the Supreme
Court. Each case shall be assigned a case number on
receipt of a complaint, petition, or other initiating
document. The case number shall comply with MCR
2.113(C)(1)(c) or MCR 5.113(A)(1)(b)(ii) as applicable.
In addition to the case number, a separate petition
number shall be assigned to each petition filed under
the Juvenile Code as required under MCR
5.113(A)(1)(b)(ii). The case number (and petition num-
ber if applicable) shall be recorded on the register of
actions, file folder, numerical index, and alphabetical
index. The records shall include the following charac-
teristics:
(a) Numerical Index. The clerk shall maintain a
numerical index as a list of consecutive case numbers on
which the date of filing and the names of the parties are
recorded. The index may be maintained either as a
central index for all cases filed in the court or as
separate lists for particular types of cases or particular
divisions of the court.
(b) Alphabetical Index. The clerk shall maintain a
central alphabetical index or separate alphabetical in-
dexes for particular types of cases or particular divi-
sions of the court on which the date of filing, names of
all parties, and the case number are recorded.
(c) Register of Actions. The clerk shall keep a case
history of each case, known as a register of actions. The
register of actions shall contain both pre- and post-
clxxx 493 M
ICHIGAN
R
EPORTS
judgment information. When a case is commenced, a
register of actions form shall be created. The case
identification information in the alphabetical index
shall be entered on the register of actions. In addition,
the following shall be noted chronologically on the
register of actions as it pertains to the case:
(i) the offense (if one);
(ii) the judge assigned to the case;
(iii) the fees paid;
(iv) the date and title of each filed document item;
(v) the date process was issued and returned, as well
as the date of service;
(vi) the date of each event and type and result of
action;
(vii) the date of scheduled trials, hearings, and all
other appearances or reviews, including a notation
indicating whether the proceedings were heard on the
record and the name and certification number of the
court reporter or recorder present;
(viii) the orders, judgments, and verdicts;
(ix) the judge at adjudication and disposition;
(x) the date of adjudication and disposition; and
(xi) the manner of adjudication and disposition.
Each notation shall be brief, but shall show the nature
of each paper item filed, each order or judgment of the
court, and the returns showing execution. Each nota-
tion shall be dated with not only the date of filing, but
with the date of entry and shall indicate the person
recording the action.
(d) Case fFile. The clerk of the court shall maintain a
paper and/or electronic file folder for each action, bear-
ing the case number assigned to it, in which the clerk
shall keep all pleadings, process, written opinions and
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxxxi
findings, orders, and judgments filed in the action. Addi-
tionally, the clerk shall keep in the file all other documents
materials prescribed by court rule, statute, or as ordered
by the court to be filed with the clerk of the court. If other
records of a case file are maintained separately from the
file folder, the clerk shall keep them as prescribed by trial
court case file management standards.
(2) Calendars. The clerk may maintain calendars of
actions. A calendar is a schedule of cases ready for court
action that identifies times and places of activity.
(3) Abolished Records.
(a) Journals. Except for recording marriages, jour-
nals shall not be maintained.
(b) Dockets. A register of actions replaces a docket.
Wherever these rules or applicable statutes require
entries on a docket, those entries shall be entered on the
register of actions.
(E)(4) Other Case Records. The clerk or other per-
sons designated by the chief judge of the court shall
keep in such the form manner as may be prescribed by
these rules court, other papers, documents, materials,
and things filed with or handled by the court for
purposes of case processing, including but not limited to
wills for safekeeping, case evaluations, exhibits logs,
and other discovery materials, probation files, and
friend of the court records requests for search warrants,
marriage records, and administrative activities.
(F) Court Recordings, Log Notes, Jury Seating
Charts, and Media. Court recordings, log notes, jury
seating charts, and all other records such as tapes,
backup tapes, discs, and any other medium used or
created in the making of a record of proceedings and
kept pursuant to MCR 8.108 are court records and are
subject to access in accordance with subrule (H)(2)(b).
clxxxii 493 M
ICHIGAN
R
EPORTS
(G) Other Court Records. All court records not in-
cluded in subrules (D), (E), and (F) are considered
administrative and fiscal records or nonrecord materi-
als and are not subject to public access under subrule
(H). These records are defined in the approved records
retention and disposal schedule for trial courts.
(E)(H) Access to Records. Except as otherwise pro-
vided in subrule (F), only case records as defined in
subrule (D) are public records, subject to access in
accordance with these rules. The clerk may not permit
any case record or paper on file in the clerk’s office to be
taken from it the court without the order of the court.
A court may provide access to the public information in
a register of actions through a publicly accessible web-
site; however, all other public information in its case
records may be provided through electronic means only
upon request. The court may provide access to any case
record that is not a document, as defined by MCR
1.109(B), if it can reasonably accommodate the request.
Any materials filed with the court pursuant to MCR
1.109(C)(2), in a medium in which the court does not
have the means to readily access and reproduce those
materials, may be made available for public inspection
using court equipment only. The court is not required to
provide the means to access or reproduce the contents
of those materials if the means is not already available.
(1) Unless access to a file, a document case record, or
information contained in a file or document record as
defined in subrule (D) is restricted by statute, court
rule, or an order entered pursuant to subrule (FI), any
person may inspect pleadings and other papers in the
clerk’s office that record and may obtain copies as
provided in subrule (E)(2) and (E)(3)(J).
(2) If a person wishes to obtain copies of papers in a
file, the clerk shall provide copies upon receipt of the
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxxxiii
reasonable cost of reproduction. If the clerk prefers, the
requesting person may be permitted to make copies at
personal expense under the direct supervision of the
clerk. Except for copies of transcripts or as otherwise
directed by statute or court rule, a standard fee may be
established for providing copies of papers on file.
(3) A court is not required to create a new record, except
to the extent required by furnishing copies of a file, paper,
or record. A court may create a new record or compilation
of records pertaining to case files or case-related informa-
tion on request, provided that the record created or
compiled does not disclose information that would other-
wise be confidential or restricted by statute, court rule, or
an order entered pursuant to subrule (F). In accordance
with subrule (J), the court may collect a fee for the cost of
this service, including the cost of providing the new record
in a particular medium.
(4)(2) Every court, shall adopt an administrative
order pursuant to MCR 8.112(B) to
(a) make reasonable regulations necessary to protect
its public records and prevent excessive and unreason-
able interference with the discharge of its functions;
(b) establish a policy for whether to provide access for
records defined in subrule (F) and if access is to be
provided, outline the procedure for accessing those
records;
(b)(c) specify the reasonable cost of reproduction of
records provided under subrule (E)(2)(J); and
(c)(d) specify the process for determining costs under
subrule (E)(3)(J).
(F)(I) [Relettered, but otherwise unchanged.]
(J) Access and Reproduction Fees.
(1) A court may not charge an access or reproduction
fee for a case record that the court is required by law or
clxxxiv 493 M
ICHIGAN
R
EPORTS
court rule to provide without charge to a person or other
entity, irrespective of the medium in which the case record
is retained, the manner in which access to the case record
is provided, and the technology used to create, store,
retrieve, reproduce, and maintain the case record.
(2) The court may provide access to its public case
records in any medium authorized by the records repro-
duction act, 1992 PA 116; MCL 24.401 to 24.403. If a court
maintains its public records in electronic format only,
(a) the court may not charge a fee to access those case
records when access is made on-site through a public
terminal or when a verbal request for public informa-
tion is made on-site to the clerk.
(b) the court or a contracted entity may charge a fee,
in accordance with Supreme Court order, to access
those case records when the access is made off-site
through a document management, imaging, or other
electronic records management system.
(3) Reproduction of a case record means the act of
producing a copy of that record through any medium
authorized by the records reproduction act, 1992 PA
116; MCL 24.401 to 24.403.
(a) A court may charge only for the actual cost of
labor and supplies and the actual use of the system,
including printing from a public terminal, to reproduce
a case record and not the cost associated with the
purchase and maintenance of any system or technology
used to store, retrieve, and reproduce a case record.
(b) If a person wishes to obtain copies of documents
in a file, the clerk shall provide copies upon receipt of
the actual cost of reproduction.
(c) Except as otherwise directed by statute or court
rule, a standard fee may be established, pursuant to
(H)(2), for providing copies of documents on file.
M
ICHIGAN
C
OURT
R
ULES OF
1985 clxxxv
(4) A court is not required to create a new record out
of its existing records. A new record means the compi-
lation of information into a format that does not cur-
rently exist or that cannot be generated electronically
using predefined formats available through a court’s
case management system. Providing access to docu-
ments or furnishing copies of documents in an existing
file does not constitute creation of a new record, even
when the output appears in a format different than the
format of the original record or document because the
output is the result of predefined formats.
(a) A court may create a new record or compilation
of records pertaining to case files or case-related
information on request, provided that the record
created or compiled does not disclose information
that would otherwise be confidential or restricted by
statute, court rule, or an order entered pursuant to
subrule (I).
(b) A court may charge only for the actual cost of
labor and supplies and the actual use of the system to
develop, generate, and validate the accuracy of a new
record and not the cost associated with the purchase
and maintenance of any system or technology used to
store, retrieve, and reproduce the information or docu-
ments for creating a new record.
(c) If a court creates a new record, the clerk shall
provide access to the new record upon receipt of the
actual cost of creating the record.
(K) Retention Periods.
For purposes of retention, the records of the trial
courts include: (1) administrative and fiscal records, (2)
case records, (3) and nonrecord material. The records of
the trial courts shall be retained in the medium pre-
scribed by MCR 1.109. The records of a trial court may
not be destroyed except upon order by the chief judge of
clxxxvi 493 M
ICHIGAN
R
EPORTS
that court. Before destroying records subject to the
order, the court shall first transfer to the Archives of
Michigan any records specified as such by State Ar-
chives in the Michigan trial courts approved records
retention and disposal schedule. An order of destruction
shall comply with the retention periods established by
the State Court Administrative Office and approved by
the state court administrator, Attorney General, State
Administrative Board, and Archives and Records Man-
agement Services of the Department of Management
and Budget, in accordance with MCL 399.5.
(G)(L) [Relettered, but otherwise unchanged.]
Staff Comment: The amendments of these rules update the rules
making them less “paper” focused and reflecting the use of electronic
technology in the way courts process court records. The amendments also
clarify and delineate the types of records and other materials maintained
by a court, and clarify how access is provided.
The staff comment is not an authoritative construction by the Court.
Entered November 7, 2012 (File No. 2010-25)—R
EPORTER
.
On order of the Court, the proposed amendment of
Rule 7.210 of the Michigan Court Rules having been
published for comment at 490 Mich 1205-1206 (2011), and
an opportunity having been provided for comment and at
a public hearing, the Court declines to adopt the proposed
amendment. This administrative file is closed without
further action.
Entered December 5, 2012, effective immediately (File No. 2011-18)—
R
EPORTER
.
By order dated June 20, 2012, this Court amended
MCR 6.302, effective immediately, to require a trial
court to advise the defendant if a guilty plea will result
in a requirement for lifetime electronic monitoring as
determined by MCL 750.520b or MCL 750.520c. 491
M
ICHIGAN
C
OURT
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ULES OF
1985 clxxxvii
Mich, adv sht pt 4, xlviii-xlix (2012). At the time the
amendment order was issued, the Court stated that it
would consider at a future public hearing whether to
retain the amendment. Notice and an opportunity for
comment at a public hearing having been provided, the
amendment of MCR 6.302 is retained.
Entered December 5, 2012 (File No. 2011-14)—R
EPORTER
.
On order of the Court, the proposed amendment of
Rule 2.105 of the Michigan Court Rules having been
published for comment at 491 Mich 1221-1222 (2012),
and an opportunity having been provided for comment
and at a public hearing, the Court declines to adopt the
proposed amendment. This administrative file is closed
without further action.
M
ARILYN
K
ELLY,
J. I would adopt the proposed amend-
ment.
Adopted February 6, 2013, effective May 1, 2013 (File No. 2012-12)—
R
EPORTER
.
[The present language is amended as indi-
cated below; underlining indicates new text
and strikeover indicates text that has been
deleted.]
R
ULE
3.925. O
PEN
P
ROCEEDINGS
;J
UDGMENTS AND
O
RDERS
;
R
ECORDS
C
ONFIDENTIALITY
;D
ESTRUCTION OF
C
OURT
F
ILES
;
S
ETTING
A
SIDE
A
DJUDICATIONS
.
(A)-(D) [Unchanged.]
(E) Retention and Destruction of Court Case Files
and Other Court Records. This subrule governs the
retention and destruction of court case files and other
court records, as defined by MCR 8.119(D).
clxxxviii 493 M
ICHIGAN
R
EPORTS
(1) Destruction Generally; Effect. The court may
destroy its case files and other court records only as
prescribed by this rule and the approved General
Records Retention and Disposal Schedule #16 – Michi-
gan Trial Courts. at any time for good cause destroy its
own files and records pertaining to an offense by or
against a minor, other than an adjudicated offense
described in MCL 712A.18e(2), except that the register
of actions must not be destroyed. Destruction of a file
does not negate, rescind, or set aside an adjudication.
(2) Register of Actions, Indexes, and Orders.
The register of actions and numerical and alphabeti-
cal indexes must be maintained permanently. In addi-
tion, the court must permanently maintain the order of
adjudication, the order terminating parental rights, and
the order terminating jurisdiction for each child protec-
tive case; the order of adjudication and the order
terminating jurisdiction for each delinquency case; the
latest dispositive order for each designated case; and
the order appointing a guardian and any order dismiss-
ing, terminating, or revoking a guardian for each juve-
nile guardianship case.
(23) Delinquency and Motor Vehicle Code Case Files
and Records.
(a) The Except as provided in subrule (2), the court
must may destroy the diversion record case file of a
juvenile within 28 days after the juvenile becomes 17
years of age.
(b) The Except as provided in subrule (2), the court
must may destroy all case files of matters heard on the
consent calendar within 28 days after the juvenile
becomes 17 years of age or after dismissal from court
supervision, whichever is later, unless the juvenile
subsequently comes within the jurisdiction of the court
on the formal calendar. If the case is transferred to the
M
ICHIGAN
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ULES OF
1985 clxxxix
consent calendar and a register of actions exists, the
register of actions must be maintained permanently as
a nonpublic record.
(c) Except as provided by subrules (2), (3)(a), and
(3)(b), the court must may destroy the legal records in
the case files and records pertaining to a person’s
juvenile offenses when the person becomes 30 years old
of age. The social records in the case files pertaining to
a person’s juvenile offenses may be destroyed three
years after entry of the order terminating jurisdiction of
that person or when the person becomes 18 years old,
whichever is later. The social records are the confiden-
tial files defined in MCR 3.903(A)(2). The court must
destroy the records in traffic and local ordinance case
files opened by issuance of a citation pursuant to the
motor vehicle code or a local corresponding ordinance
when the person becomes 30 years of age.
(d) If the court destroys its case files regarding a
juvenile proceeding on the formal calendar, it shall
retain the register of actions, and, if the information is
not included in the register of actions, whether the
juvenile was represented by an attorney or waived
representation.
(34) Child Protective Case Files and Records.
(a) The Except as provided in subrule (2), the court,
for any reason, may destroy the legal records in the
child protective proceeding case files and records per-
taining to a child, other than orders terminating paren-
tal rights, 25 years after the jurisdiction over the child
ends, except that where records on more than one child
in a family are retained in the same file, destruction is
not allowed until 25 years after jurisdiction over the last
child ends. The social records in the child protective
proceeding case files pertaining to a child may be
destroyed three years after entry of the order terminat-
cxc 493 M
ICHIGAN
R
EPORTS
ing jurisdiction of that child or when the child become
18 years of age, whichever is later. The social records
are the confidential files defined in MCR 3.903(A)(2).
(b) All orders terminating parental rights to a child
must be kept as a permanent record of the court.
(5) Personal Protection Proceeding Case Files. The
court may destroy the legal and social records in per-
sonal protection proceeding case files pertaining to a
juvenile respondent three years after the expiration
date of the personal protection order or the latest
dispositive order on a violation of the personal protec-
tion order, or when the juvenile respondent becomes 18
years of age, whichever is later.
(6) Juvenile Guardianship Case Files. The court may
destroy the records in juvenile guardianship case files
25 years after the order appointing a juvenile guardian.
(7) Probation Case Files. The court may destroy the
records in probation case files pertaining to a juvenile
three years after an order terminating jurisdiction or
when the juvenile becomes 18 years of age, whichever is
later.
(F)-(G) [Unchanged.]
Staff Comment: The amendments of MCR 3.925 clarify the rules and
procedures for retention and destruction of various records in juvenile cases.
The staff comment is not an authoritative construction by the Court.
Adopted February 6, 2013, effective May 1, 2013 (File No. 2012-13)—
R
EPORTER
.
[Additions to the text are indicated in under-
lining and deleted text is shown by strike-
over.]
R
ULE
3.976. P
ERMANENCY
P
LANNING
H
EARINGS
.
(A)-(D) [Unchanged.]
M
ICHIGAN
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OURT
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ULES OF
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(E) Determinations; Permanency Options.
(1)-(2) [Unchanged.]
(3) Continuing Foster Care Pending Determination
on Termination of Parental Rights. If the court deter-
mines at a permanency planning hearing that the child
should not be returned home, it may order the agency to
initiate proceedings to terminate parental rights. Ex-
cept as otherwise provided in this subsection, if the
child has been in foster care under the responsibility of
the state for 15 of the most recent 22 months, the court
shall order the agency to initiate proceedings to termi-
nate parental rights. If the court orders the agency to
initiate proceedings to terminate parental rights, the
order must specify the date, or the time within which
the petition must be filed. In either case, the petition
must be filed no later than 28 days after the date the
permanency planning hearing is concluded. The court is
not required to order the agency to initiate proceedings
to terminate parental rights if one or more of the
following apply:
(a)-(c) [Unchanged.]
If the court does not require the agency to initiate
proceedings to terminate parental rights under this
provision, the court shall state on the record the reason
or reasons for its decision.
(4) [Unchanged.]
Staff Comment: The amendment of MCR 3.976 requires a court to
indicate on the record the reason that no petition for termination of
parental rights need be filed, thus providing a record to future auditors
who review the state’s foster care program that the court explicitly chose
the option.
The staff comment is not an authoritative construction by the Court.
cxcii 493 M
ICHIGAN
R
EPORTS
Adopted February 6, 2013, effective May 1, 2013 (File No. 2012-20)—
R
EPORTER
.
[Additions to the text are indicated in under-
lining and deleted text is shown by strike-
over.]
R
ULE
3.616. P
ROCEEDING TO
D
ETERMINE
C
ONTINUATION OF
V
OLUNTARY
F
OSTER
C
ARE
S
ERVICES
.
(A)-(D) [Unchanged.]
(E) [Unchanged.]
(1)-(2) [Unchanged.]
(3) Service. The Department of Human Services shall
serve the petition on
(a) the youth; and
(b) the court that had jurisdiction pursuant to MCL
712A.2(b) during the neglect/abuse proceeding, if differ-
ent than the court in which the petition is filed; and
(c) the foster parent or parents, if any.
(F) Judicial Determination. The court shall review
the petition, report, and voluntary foster care agree-
ment filed pursuant to subrule (E), and then make a
determination whether continuing in voluntary foster
care is in the best interests of the youth.
(1) [Unchanged.]
(2) Service. The court shall serve the order on
(a)(i) the Department of Human Services;
(b)(ii) the youth; and
(c)(iii) the court that had jurisdiction pursuant to
MCL 712A.2(b), if different than the court in which the
petition is filed; and
(iv) the foster parent or parents, if any.
M
ICHIGAN
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(G) Confidential File. The Department of Human
Services and the youth are entitled to access to the
records contained in the file, but otherwise, the file is
confidential.
Staff Comment: The amendments of MCR 3.616 provide that the files
of adult foster care youth are confidential, but may be accessed by the
youth and by DHS. The amendment eliminates the requirement that the
petition and order be served on the previous court in which the youth’s
child protection case was disposed because the case is no longer active.
This order also corrects numbering of subsection (F)(2)(i)-(iv) so that the
subsections are labeled with letters (a)-(c).
The staff comment is not an authoritative construction by the Court.
Adopted March 20, 2013, effective immediately (File No. 2013-02)—
R
EPORTER
.
On order of the Court, the need for immediate action
having been found, the following amendments of Rules
3.002, 3.800, 3.802, 3.807, 3.903, 3.905, 3.920, 3.921,
3.935, 3.961, 3.963, 3.965, 3.967, 3.974, 3.977, and 5.402 of
the Michigan Court Rules are adopted, effective immedi-
ately and pending public comment. This notice is given to
afford interested persons the opportunity to comment on
the form or the merits of the amendment or to suggest
alternatives. The Court welcomes the views of all. This
matter will be considered at a public hearing. The notices
and agendas of public hearings are posted at
<http://www.courts.mi.gov/courts/michigansupremecourt/
rules/pages/public-administrative-hearings.aspx>.
[Additions to the text are indicated in under-
lining and deleted text is shown by strikeover.]
R
ULE
3.002. I
NDIAN
C
HILDREN
.
For purposes of applying the Indian Child Welfare
Act, 25 USC 1901 et seq., and the Michigan Indian
Family Preservation Act, MCL 712B.1 et seq., to pro-
cxciv 493 M
ICHIGAN
R
EPORTS
ceedings under the Juvenile Code, the Adoption Code,
and the Estates and Protected Individuals Code, the
following definitions taken from 25 USC 1903 and 25
USC 1911(a) MCL 712B.3 and MCL 712B.7 shall apply.
(1) “Active efforts” means actions to provide remedial
services and rehabilitative programs designed to pre-
vent the breakup of the Indian family and to reunify the
child with the Indian family. Active efforts require more
than a referral to a service without actively engaging
the Indian child and family. Active efforts include
reasonable efforts as required by title IV-E of the social
security act, 42 USC 670 to 679c, and also include doing
or addressing all of the following:
(a) Engaging the Indian child, child’s parents, tribe,
extended family members, and individual Indian car-
egivers through the utilization of culturally appropriate
services and in collaboration with the parent or child’s
Indian tribes and Indian social services agencies.
(b) Identifying appropriate services and helping the
parents to overcome barriers to compliance with those
services.
(c) Conducting or causing to be conducted a diligent
search for extended family members for placement.
(d) Requesting representatives designated by the
Indian child’s tribe with substantial knowledge of the
prevailing social and cultural standards and child rear-
ing practice within the tribal community to evaluate the
circumstances of the Indian child’s family and to assist
in developing a case plan that uses the resources of the
Indian tribe and Indian community, including tradi-
tional and customary support, actions, and services, to
address those circumstances.
(e) Completing a comprehensive assessment of the
situation of the Indian child’s family, including a deter-
M
ICHIGAN
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ULES OF
1985 cxcv
mination of the likelihood of protecting the Indian
child’s health, safety, and welfare effectively in the
Indian child’s home.
(f) Identifying, notifying, and inviting representa-
tives of the Indian child’s tribe to participate in all
aspects of the Indian child custody proceeding at the
earliest possible point in the proceeding and actively
soliciting the tribe’s advice throughout the proceeding.
(g) Notifying and consulting with extended family
members of the Indian child, including extended family
members who were identified by the Indian child’s tribe
or parents, to identify and to provide family structure
and support for the Indian child, to assure cultural
connections, and to serve as placement resources for the
Indian child.
(h) Making arrangements to provide natural and
family interaction in the most natural setting that can
ensure the Indian child’s safety, as appropriate to the
goals of the Indian child’s permanency plan, including,
when requested by the tribe, arrangements for trans-
portation and other assistance to enable family mem-
bers to participate in that interaction.
(i) Offering and employing all available family pres-
ervation strategies and requesting the involvement of
the Indian child’s tribe to identify those strategies and
to ensure that those strategies are culturally appropri-
ate to the Indian child’s tribe.
(j) Identifying community resources offering hous-
ing, financial, and transportation assistance and in-
home support services, in-home intensive treatment
services, community support services, and specialized
services for members of the Indian child’s family with
special needs, and providing information about those
resources to the Indian child’s family, and actively
cxcvi 493 M
ICHIGAN
R
EPORTS
assisting the Indian child’s family or offering active
assistance in accessing those resources.
(k) Monitoring client progress and client participa-
tion in services.
(l) Providing a consideration of alternative ways of
addressing the needs of the Indian child’s family, if
services do not exist or if existing services are not
available to the family.
(12) [Former “(1)” has been renumbered as “(2)” and
is otherwise unchanged.]
(3) “Court” means the family division of circuit court
or the probate court.
(4) “Culturally appropriate services” means services
that enhance an Indian child’s and family’s relationship
to, identification, and connection with the Indian
child’s tribe. Culturally appropriate services should
provide the opportunity to practice the teachings, be-
liefs, customs, and ceremonies of the Indian child’s
tribe so those may be incorporated into the Indian
child’s daily life, as well as services that address the
issues that have brought the child and family to the
attention of the department that are consistent with
the tribe’s beliefs about child rearing, child develop-
ment, and family wellness. Culturally appropriate ser-
vices may involve tribal representatives, extended fam-
ily members, tribal elders, spiritual and cultural
advisors, tribal social services, individual Indian car-
egivers, medicine men or women, and natural healers.
If the Indian child’s tribe establishes a different defini-
tion of culturally appropriate services, the court shall
follow the tribe’s definition.
(5) “Department” means the department of human
services or any successor department or agency.
M
ICHIGAN
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(26) “Exclusive jurisdiction” shall mean that an
Indian tribe has jurisdiction exclusive as to any state
over any child custody proceeding as defined above
involving an Indian child who resides or is domiciled
within the reservation of such tribe, except where such
jurisdiction is otherwise vested in the state by existing
federal law. Where an Indian child is a ward of a tribal
court, the Indian tribe shall retains exclusive jurisdic-
tion, notwithstanding regardless of the residence or
domicile of the child, or subsequent change in his or her
residence or domicile. 25 USC 1911[a]MCL 712B.7.
(37) “Extended family member” shall be as defined
by the law or custom of the Indian child’s tribe or, in the
absence of such law or custom, shall be a person who
has reached the age of 18 years and who is the Indian
child’s grandparent, aunt or uncle, brother or sister,
brother-in-law or sister-in-law, niece or nephew, first or
second cousin, or stepparent and includes the term
“relative” as that term is defined in MCL 712A.13a(j).
(8) “Foster home or institution” means a child caring
institution as that term is defined in section 1 of 1973
PA 116, MCL 722.111.
(9) “Guardian” means a person who has qualified as
a guardian of a minor under a parental or spousal
nomination or a court order issued under section 19a or
19c of chapter XIIA, section 5204 or 5205 of the estates
and protected individuals code, 1998 PA 386, MCL
700.5204 and 700.5205, or sections 600 to 644 of the
mental health code, 1974 PA 258, MCL 330.1600 to
330.1644. Guardian may also include a person ap-
pointed by a tribal court under tribal code or custom.
Guardian does not include a guardian ad litem.
(10) “Guardian ad litem” means an individual whom
the court appoints to assist the court in determining the
child’s best interests. A guardian ad litem does not need
to be an attorney.
cxcviii 493 M
ICHIGAN
R
EPORTS
(411) “Indian” means any person who is a member of
any Indian tribe, band, nation, or other organized group
or community of Indians recognized as eligible for the
services provided to Indians by the secretary because of
their status as Indians, including any or who is an
Alaska Nnative village and a member of a Regional
Corporation as defined in 43 USC 1606 as defined in
section 1602(c) of the Alaska native claims settlement
act, 43 USC 1602.
(512) “Indian child” means any unmarried person
who is under age 18 and is either
(a) a member of an Indian tribe, or
(b) is eligible for membership in an Indian tribe and
is the biological child of a member of an as determined
by that Indian tribe.
(613) “Indian child’s tribe” means
(a) the Indian tribe ofin which an Indian child is a
member or eligible for membership, or
(b) in the case of an Indian child who is a member of
or eligible for membership in more than one tribe, the
Indian tribe with which the Indian child has the more
most significant contacts.
(14) “Indian child welfare act” means the Indian
child welfare act of 1978, 25 USC 1901 to 1963.
(715)“Indian custodian” means any Indian person
who has legal custody of an Indian child under tribal
law or custom or under state law, or to whom temporary
physical care, custody, and control hashave been trans-
ferred by the child’s parent of such child.
(816) [Former “(8)” has been renumbered “(16)” and
is otherwise unchanged.]
(917) [Former “(9)” has been renumbered “(17)” and
is otherwise unchanged.]
M
ICHIGAN
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1985 cxcix
(18) “Lawyer-guardian ad litem” means an attorney
appointed under MCL 712B.21 to represent the child
with the powers and duties as set forth in MCL
712A.17d. The provisions of MCL 712A.17d also apply
to a lawyer-guardian ad litem appointed for the pur-
poses of MIFPA under each of the following:
(a) MCL 700.5213 and 700.5219,
(b) MCL 722.24, and
(c) MCL 722.630.
(19) “Official tribal representative” means an indi-
vidual who is designated by the Indian child’s tribe to
represent the tribe in a court overseeing a child custody
proceeding. An official tribal representative does not
need to be an attorney.
(1020) “Parent” means any biological parent or par-
ents of an Indian child or any Indian person who has
lawfully adopted an Indian child, including adoptions
under tribal law or custom. It does not include an
unwedthe putative father whose if paternity has not
been acknowledged or established.
(1121) [Former “(11)” has been renumbered “(21)”
and is otherwise unchanged.]
(1222)[Former “(12)” has been renumbered “(22)”
and is otherwise unchanged.]
(1323) [Former “(13)” has been renumbered “(23)”
and is otherwise unchanged.]
(24) “Ward of tribal court” means a child over whom
an Indian tribe exercises authority by official action in
tribal court or by the governing body of the tribe.
R
ULE
3.800. A
PPLICABLE
R
ULES
;I
NTERESTED
P
ARTIES
;I
N-
DIAN
C
HILD
.
(A) Generally. Except as modified by MCR 3.801-
3.807, adoption proceedings, are governed by Michigan
Court Rules.
cc 493 M
ICHIGAN
R
EPORTS
(B) Interested Parties.
(1) [Unchanged.]
(2) If the court knows or has reason to know the
adoptee is an Indian child, in addition to the above, the
persons interested are the child’s tribe and the Indian
custodian, if any, and, if the Indian’s child’s parent or
Indian custodian, or tribe, is unknown, the Secretary of
the Interior.
(3) The interested persons in a petition to terminate
the rights of the noncustodial parent pursuant to MCL
710.51(6) are:
(a)-(c) [Unchanged.]
(d) if the court knows or has reason to know the
adoptee is an Indian child, the child’s tribe and the
Indian custodian, if any, and, if the Indian child’s parent
or Indian custodian, or tribe, is unknown, the Secretary
of the Interior.
R
ULE
3.802. M
ANNER AND
M
ETHOD OF
S
ERVICE
.
(A) Service of Papers.
(1)-(2) [Unchanged.]
(3) Notice of Proceeding Concerning Indian Child.
If the court knows or has reason to know an Indian
child is the subject of an adoption proceeding and an
Indian tribe does not have exclusive jurisdiction as
defined in MCR 3.002(26),
(a)-(b) [Unchanged.]
(4) [Unchanged.]
(B)-(C) [Unchanged.]
R
ULE
3.807. I
NDIAN
C
HILD
.
(A) Definitions. If an Indian child, as defined by the
Indian Child Welfare Act, 25 USC 1903Michigan Indian
M
ICHIGAN
C
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ULES OF
1985 cci
Family Preservation Act, MCL 712B.3, is the subject of
an adoption proceeding, the definitions in MCR 3.002
shall control.
(B) Jurisdiction, Notice, Transfer, Intervention.
(1) If an Indian child is the subject of an adoption
proceeding and an Indian tribe has exclusive jurisdic-
tion as defined in MCR 3.002(26), the matter shall be
dismissed.
(2) If an Indian child is the subject of an adoption
proceeding and an Indian tribe does not have exclusive
jurisdiction as defined in MCR 3.002(26), the court shall
ensure that the petitioner has given notice of the
proceedings to the persons prescribed in MCR 3.800(B)
in accordance with MCR 3.802(A)(3).
(a) If either parent or the Indian custodian or the
Indian child’s tribe petitions the court to transfer the
proceeding to the tribal court, the court shall transfer
the case to the tribal court unless either parent objects
to the transfer of the case to tribal court jurisdiction or
the court finds good cause not to transfer. In determin-
ing whether good cause not to transfer exists, the court
shall consider the Bureau of Indian Affairs, Guidelines
for State Courts; Indian Child Custody Proceedings, 44
Fed Reg No 228, 67590-67592, C.2-C.4. A perceived
inadequacy of the tribal court or tribal series does not
constitute good cause to refuse to transfer the case.
When the court makes a good-cause determination
under this section, adequacy of the tribe, tribal court, or
tribal social services shall not be considered. A court
may determine that good cause not to transfer a case to
tribal court exists only if the person opposing the
transfer shows by clear and convincing evidence that
either of the following applies:
(i) The Indian tribe does not have a tribal court.
ccii 493 M
ICHIGAN
R
EPORTS
(ii) The requirement of the parties or witnesses to
present evidence in tribal court would cause undue
hardship to those parties or witnesses that the Indian
tribe is unable to mitigate.
(b) [Unchanged.]
(c) If the tribal court declines transfer, the Indian
Child Welfare ActMichigan Indian Family Preservation
Act applies, as do the provisions of these rules that
pertain to an Indian child (see 25 USC 1902,
1911[b]MCL 712B.3 and MCL 712B.5).
(d) A petition to transfer may be made at any time in
accordance with 25 USC 1911(b) MCL 712B.7(3).
(3) The Indian custodian of the child and the Indian
child’s tribe have a right to intervene at any point in the
proceeding for foster care placement or termination of
parental rights pursuant to 25 USC 1911(c)MCL
712B.7(6).
(C) Record of Tribal Affiliation. Upon application by
an Indian individual who has reached the age of 18 and
who was the subject of an adoption placement, the court
that entered the final decree shall inform such indi-
vidual of the tribal affiliation, if any, of the individual’s
biological parents and provide such other information
as may be necessary to protect any rights flowing from
the individual’s tribal relationship. (25 USC 1917.)
R
ULE
3.903. D
EFINITIONS
.
(A)-(E) [Unchanged.]
(F) Indian Child Welfare Act Michigan Indian Family
Preservation Act.
If an Indian child, as defined by the Indian Child
Welfare Act, 25 USC 1901 et seq., Michigan Indian
Family Preservation Act, MCL 712B.1 et seq.,isthe
subject of a protective proceeding or is charged with a
M
ICHIGAN
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status offense in violation of MCL 712A.2(a)(2)-(4) or
(d), the definitions in MCR 3.002 shall control.
R
ULE
3.905. I
NDIAN
C
HILDREN
;J
URISDICTION
,N
OTICE
,
T
RANSFER
,I
NTERVENTION
.
(A) If an Indian child is the subject of a protective
proceeding or is charged with a status offense in viola-
tion of MCL 712A.2(a)(2)-(4) or (d), and if an Indian
tribe has exclusive jurisdiction as defined in MCR
3.002(26), and the matter is not before the state court
as a result of emergency removal pursuant to 25 USC
1922 MCL 712B.7(2), the matter shall be dismissed.
(B) If an Indian child is the subject of a protective
proceeding or is charged with a status offense in violation
of MCL 712A.2(a)(2)-(4) or (d), and if an Indian tribe has
exclusive jurisdiction as defined in MCR 3.002(26), and
the matter is before the state court as a result of emer-
gency removal pursuant to 25 USC 1922 MCL 712B.7(2),
and either the tribe notifies the state court that it is
exercising its jurisdiction, or the emergency no longer
exists, then the state court shall dismiss the matter.
(C) If an Indian child is the subject of a protective
proceeding or is charged with a status offense in viola-
tion of MCL 712A.2(a)(2)-(4) or (d) and an Indian tribe
does not have exclusive jurisdiction as defined in MCR
3.002(26), the court shall ensure that the petitioner has
given notice of the proceedings to the persons described
in MCR 3.921 in accordance with MCR 3.920(C).
(1) If either parent or the Indian custodian or the
Indian child’s tribe petitions the court to transfer the
proceeding to the tribal court, the court shall transfer
the case to the tribal court unless either parent objects
to the transfer of the case to tribal court jurisdiction or
the court finds good cause not to transfer. In determin-
ing whether good cause not to transfer exists, the court
cciv 493 M
ICHIGAN
R
EPORTS
shall consider the Bureau of Indian Affairs, Guidelines
for State Courts; Indian Child Custody Proceedings, 44
Fed Reg No 228, 67590-67592, C.2-C.4. (November 26,
1979). A perceived inadequacy of the tribal court or
tribal services does not constitute good cause to refuse
to transfer the case. When the court makes a good-cause
determination under this section, adequacy of the tribe,
tribal court, or tribal social services shall not be consid-
ered. A court may determine that good cause not to
transfer a case to tribal court exists only if the person
opposing the transfer shows by clear and convincing
evidence that either of the following applies:
(a) The Indian tribe does not have a tribal court.
(b) The requirement of the parties or witnesses to
present evidence in tribal court would cause undue
hardship to those parties or witnesses that the Indian
tribe is unable to mitigate.
(2) [Unchanged.]
(3) If the tribal court declines transfer, the Indian
Child Welfare ActMichigan Indian Family Preservation
Act applies to the continued proceeding in state court,
as do the provisions of these rules that pertain to an
Indian child. See 25 USC 1902, 1911(b) MCL 712B.3
and MCL 712B.5.
(4) A petition to transfer may be made at any time in
accordance with 25 USC 1911(b) MCL 712B.7(3).
(D) The Indian custodian of the child and the Indian
child’s tribe have a right to intervene at any point in the
proceeding pursuant to 25 USC 1911(c) MCL 712B.7(6).
R
ULE
3.920. S
ERVICE OF
P
ROCESS
.
(A)-(B) [Unchanged.]
(C) Notice of Proceeding Concerning Indian Child. If
the court knows or has reason to know an Indian child
M
ICHIGAN
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1985 ccv
is the subject of a protective proceeding or is charged
with a status offense in violation of MCL 712A.2(a)(2)-
(4) or (d) and an Indian tribe does not have exclusive
jurisdiction as defined in MCR 3.002(26):
(1)-(2) [Unchanged.]
(D)-(I) [Unchanged.]
R
ULE
3.921. P
ERSONS
E
NTITLED TO
N
OTICE
.
(A) Delinquency Proceedings.
(1) General. In a delinquency proceeding, the court
shall direct that the following persons be notified of
each hearing except as provided in subrule (A)(3):
(a)-(f) [Unchanged.]
(g) in accordance with the notice provisions of MCR
3.905, if the juvenile is charged with a status offense in
violation of MCL 712A.2(a)(2)-(4) or (d) and if the court
knows or has reason to know the juvenile is an Indian
child:
(i) the juvenile’s tribe and, if the tribe is unknown,
the Secretary of the Interior, and
(ii) the juvenile’s parents or Indian custodian, and if
unknown, the Secretary of the Interior.
(2)-(3) [Unchanged.]
(B) Protective Proceedings.
(1) General. In a child protective proceeding, except
as provided in subrules (B)(2) and (3), the court shall
ensure that the following persons are notified of each
hearing:
(a)-(g) [Unchanged.]
(h) in accordance with the notice provisions of MCR
3.905, if the court knows or has reason to know the
child is an Indian child:
(i)-(ii) [Unchanged.]
(i) [Unchanged.]
ccvi 493 M
ICHIGAN
R
EPORTS
(2) Dispositional Review Hearings and Permanency
Planning Hearings. Before a dispositional review hear-
ing or a permanency planning hearing, the court shall
ensure that the following persons are notified in writing
of each hearing:
(a)-(i) [Unchanged.]
(j) if the court knows or has reason to know the child
is an Indian child, the child’s tribe,
(k) [Unchanged.]
(l) if the court knows or has reason to know the child
is an Indian child and the parents, guardian, legal
custodian, or tribe are unknown, to the Secretary of
Interior, and
(m) [Unchanged.]
(3) Termination of Parental Rights. Written notice of
a hearing to determine if the parental rights to a child
shall be terminated must be given to those appropriate
persons or entities listed in subrule (B)(2), except that if
the court knows or has reason to know the child is an
Indian child, notice shall be given in accordance with
MCR 3.920(C)(1).
(C) Juvenile Guardianships. In a juvenile guardian-
ship, the following persons shall be entitled to notice:
(1)-(7) [Unchanged.]
(8) if the court knows or has reason to know the child is
an Indian child if the child is a member of a federally
recognized Indian tribe, the child’s tribe, Indian custo-
dian, or if the tribe is unknown, the Secretary of the
Interior;
(9)-(10) [Unchanged.]
(D)-(E) [Unchanged.]
R
ULE
3.935. P
RELIMINARY
H
EARING
.
(A) [Unchanged.]
M
ICHIGAN
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(B) Procedure.
(1)-(4) [Unchanged.]
(5) If the charge is a status offense in violation of
MCL 712A.2(a)(2)-(4) or (d), the court must inquire if
the juvenile or a parent is a member of an Indian tribe.
If the court knows or has reason to know the child is an
Indian child, the juvenile is a member, or if a parent is
a member and the juvenile is eligible for membership in
the tribe, the court must determine the identity of the
tribe and comply with MCR 3.905 before proceeding
with the hearing.
(6)-(8) [Unchanged.]
(C)-(F) [Unchanged.]
R
ULE
3.961. I
NITIATING
C
HILD
P
ROTECTIVE
P
ROCEEDINGS
.
(A) [Unchanged.]
(B) Content of Petition. A petition must contain the
following information, if known:
(1)-(5) [Unchanged.]
(6) The type of relief requested. A request for re-
moval of the child or a parent or for termination of
parental rights at the initial disposition must be specifi-
cally stated. If the petition requests removal of an
Indian child or if an Indian child was taken into
protective custody pursuant to MCR 3.963 as a result of
an emergency, the petition must specifically describe:
(a) the active efforts, as defined in MCR 3.002, that
have been made to provide remedial services and reha-
bilitative programs designed to prevent the breakup of
the Indian family; and
(b) documentation, including attempts, to identify
the child’s tribe.
(7) [Unchanged.]
ccviii 493 M
ICHIGAN
R
EPORTS
R
ULE
3.963. P
ROTECTIVE
C
USTODY OF
C
HILD
.
(A) Taking Custody Without Court Order. An officer
may without court order remove a child from the child’s
surroundings and take the child into protective custody
if, after investigation, the officer has reasonable
grounds to conclude that the health, safety, or welfare of
the child is endangered. If the child is an Indian child
who resides or is domiciled on a reservation, but is
temporarily located off the reservation, the officer may
take the child into protective custody only when neces-
sary to prevent imminent physical damage or harm to
the child.
(B) Court-Ordered Custody.
(1) The court may issue a written order authorizing a
child protective services worker, an officer, or other
person deemed suitable by the court to immediately
take a child into protective custody when, upon present-
ment of proofs as required by the court, the judge or
referee has reasonable grounds to believe that condi-
tions or surroundings under which the child is found
are such as would endanger the health, safety, or
welfare of the child and that remaining in the home
would be contrary to the welfare of the child. If the child
is an Indian child who resides or is domiciled on a
reservation, but is temporarily located off the reserva-
tion, the child is subject to the exclusive jurisdiction of
the tribal court. However, the state court may enter an
order for protective custody of that child when it is
necessary to prevent imminent physical damage or
harm to the child. At the time it issues the order or as
provided in MCR 3.965(D), the court shall make a
judicial determination that reasonable efforts to pre-
vent removal of the child have been made or are not
required. The court may also include in such an order
authorization to enter specified premises to remove the
child.
M
ICHIGAN
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(2)-(3) [Unchanged.]
(C) [Unchanged.]
R
ULE
3.965. P
RELIMINARY
H
EARING
.
(A) [Unchanged.]
(B) Procedure.
(1) [Unchanged.]
(2) The court must inquire if the child or either
parent is a member of an Indian tribe. If the court
knows or has reason to know the child is an Indian child
member, or if a parent is a member and the child is
eligible for membership in the tribe, the court must
determine the identity of the child’s tribe, notify the
tribe, and, if the child was taken into protective custody
pursuant to MCR 3.963(A) or the petition requests
removal of the child, follow the procedures set forth in
MCR 3.967. If necessary, the court may adjourn the
preliminary hearing pending the conclusion of the re-
moval hearing. A removal hearing may be held in
conjunction with the preliminary hearing if all neces-
sary parties have been notified as required by MCR
3.905, there are no objections by the parties to do so,
and at least one expert witness is present to provide
testimony.
(3)-(11) [Unchanged.]
(12) If the court authorizes the filing of the petition,
the court:
(a) [Unchanged.]
(b) may order placement of the child after making the
determinations specified in subrules (C) and (D), if
those determinations have not previously been made. If
the child is an Indian child, the child must be placed in
descending order of preference with:
(i)-(ii) [Unchanged.]
ccx 493 M
ICHIGAN
R
EPORTS
(iii) an Indian foster family licensed or approved by
the department a non-Indian licensing authority,
(iv) [Unchanged.]
The court may order another placement for good cause
shown in accordance with MCL 712B.23(3)-(5). If the
Indian child’s tribe has established by resolution a
different order of preference than the order prescribed
above, placement shall follow that tribe’s order of
preference as long as the placement is the least restric-
tive setting appropriate to the particular needs of the
child, as provided in 25 USC 1915(b)MCL 712B.23(6).
The standards to be applied in meeting the preference
requirements above shall be the prevailing social and
cultural standards of the Indian community in which
the parent or extended family resides or with which the
parent or extended family members maintain social and
cultural ties.
(13) [Unchanged.]
(C)-(E) [Unchanged.]
R
ULE
3.967. R
EMOVAL
H
EARING FOR
I
NDIAN
C
HILD
.
(A) Child in Protective Custody. If an Indian child is
taken into protective custody pursuant to MCR
3.963(A) or (B) or MCR 3.974, a removal hearing must
be completed within 14 days after removal from a
parent or Indian custodian unless that parent or Indian
custodian has requested an additional 20 days for the
hearing pursuant to 25 USC 1912(a)MCL 712B.9(2) or
the court adjourns the hearing pursuant to MCR
3.923(G). Absent extraordinary circumstances that
make additional delay unavoidable, temporary emer-
gency custody shall not be continued for more than 45
days.
(B)-(C) [Unchanged.]
M
ICHIGAN
C
OURT
R
ULES OF
1985 ccxi
(D) Evidence. An Indian child may be removed from
a parent or Indian custodian, or, for an Indian child
already taken into protective custody pursuant to MCR
3.963 or MCR 3.974(B), remain removed from a parent
or Indian custodian pending further proceedings, only
upon clear and convincing evidence, including the tes-
timony of at least one expert witness, as described in
MCL 712B.17, who has knowledge about the child-
rearing practices of the Indian child’s tribe, that active
efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the
breakup of the Indian family, that these efforts have
proved unsuccessful, and that continued custody of the
child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child.
The active efforts must take into account the prevailing
social and cultural conditions and way of life of the
Indian child’s tribe.
(E) [Unchanged.]
(F) The Indian child, if removed from home, must be
placed in descending order of preference with:
(1)-(2) [Unchanged.]
(3) an Indian foster family licensed or approved by
the departmenta non-Indian licensing authority,
(4) [Unchanged.]
The court may order another placement for good cause
shown in accordance with MCL 712B.23(3)-(5). If the
Indian child’s tribe has established by resolution a
different order of preference than the order prescribed
in subrule (F), placement shall follow that tribe’s order
of preference as long as the placement is the least
restrictive setting appropriate to the particular needs of
the child, as provided in 25 USC 1915(b)MCL
712B.23(6).
ccxii 493 M
ICHIGAN
R
EPORTS
The standards to be applied in meeting the prefer-
ence requirements above shall be the prevailing social
and cultural standards of the Indian community in
which the parent or extended family resides or with
which the parent or extended family members maintain
social and cultural ties.
R
ULE
3.974. P
OST
-D
ISPOSITIONAL
P
ROCEDURES
;C
HILD
A
T
H
OME
.
(A) [Unchanged.]
(B) Emergency Removal; Protective Custody.
(1) General. If the child, over whom the court has
retained jurisdiction, remains at home following the
initial dispositional hearing or has otherwise returned
home from foster care, the court may order the child to
be taken into protective custody to protect the health,
safety, or welfare of the child, pending an emergency
removal hearing, except, that if the child is an Indian
child and the child resides or is domiciled within a
reservation, but is temporarily located off the reserva-
tion, the court may order the child to be taken into
protective custody only when necessary to prevent
imminent physical damage or harm to the child.
(2)-(3) [Unchanged.]
(C) [Unchanged.]
R
ULE
3.977. T
ERMINATION OF
P
ARENTAL
R
IGHTS
.
(A)-(F) [Unchanged.]
(G) Termination of Parental Rights; Indian Child.
In addition to the required findings in this rule, the
parental rights of a parent of an Indian child must not
be terminated unless:
(1) [Unchanged.]
(2) the court finds evidence beyond a reasonable
doubt, including testimony of at least one qualified
M
ICHIGAN
C
OURT
R
ULES OF
1985 ccxiii
expert witness, as described in MCL 712B.17, that
parental rights should be terminated because continued
custody of the child by the parent or Indian custodian
will likely result in serious emotional or physical dam-
age to the child.
(H)-(K) [Unchanged.]
R
ULE
5.402. C
OMMON
P
ROVISIONS
.
(A)-(D) [Unchanged.]
(E) Indian Child; Definitions, Jurisdiction, Notice,
Transfer, Intervention.
(1) If an Indian child, as defined by the Indian Child
Welfare Act, 25 USC 1903 Michigan Indian Family
Preservation Act, MCL 712B.3, is the subject of a
guardianship proceeding, the definitions in MCR 3.002
shall control.
(2) If an Indian child is the subject of a petition to
establish guardianship of a minor and an Indian tribe
has exclusive jurisdiction as defined in MCR 3.002(26),
the matter shall be dismissed.
(3) If an Indian child is the subject of a petition to
establish guardianship of a minor and an Indian tribe
does not have exclusive jurisdiction as defined in MCR
3.002(26), the court shall ensure that the petitioner has
given notice of the proceedings to the persons pre-
scribed in MCR 5.125(A)(8) and (C) in accordance with
MCR 5.109.
(a) If either parent or the Indian custodian or the
Indian child’s tribe petitions the court to transfer the
proceeding to the tribal court, the court shall transfer
the case to the tribal court unless either parent objects
to the transfer of the case to tribal court jurisdiction or
the court finds good cause not to transfer. In determin-
ing whether good cause not to transfer exists, the court
shall consider the Bureau of Indian Affairs Guidelines
ccxiv 493 M
ICHIGAN
R
EPORTS
for State Courts; Indian Child Custody Proceedings, 44
Fed Reg No 228, 67590-67592, C.2-C.4. A perceived
inadequacy of the tribal court or tribal services does not
constitute good cause to refuse to transfer the case.
When the court makes a good-cause determination
under this section, adequacy of the tribe, tribal court, or
tribal social services shall not be considered. A court
may determine that good cause not to transfer a case to
tribal court exists only if the person opposing the
transfer shows by clear and convincing evidence that
either of the following applies:
(i) The Indian tribe does not have a tribal court.
(ii) The requirement of the parties or witnesses to
present evidence in tribal court would cause undue
hardship to those parties or witnesses that the Indian
tribe is unable to mitigate.
(b) [Unchanged.]
(c) If the tribal court declines transfer, the Indian
Child Welfare Act Michigan Indian Family Preservation
Act applies, as do the provisions of these rules that
pertain to an Indian child (see 24 USC 1902,
1911(b)MCL 712B.3 and MCL 712B.5).
(d) A petition to transfer may be made at any time in
accordance with 25 USC 1911(b)MCL 712B.7(3).
(4) The Indian custodian of the child and the Indian
child’s tribe have a right to intervene at any point in the
proceeding pursuant to 25 USC 1911(c)MCL 712B.7(6).
Staff Comment: This proposal incorporates provisions of the newly
enacted Michigan Indian Family Preservation Act into specific provisions
within various rules relating to child protective proceedings and juvenile
status offenses.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on this amendment may be sent to the
M
ICHIGAN
C
OURT
R
ULES OF
1985 ccxv
Supreme Court Clerk in writing or electronically by July 1, 2013, at P.O. Box
comment, please refer to ADM File No. 2013-02. Your comments and the
comments of others will be posted under the chapter affected by this
proposal at <http://www.courts.mi.gov/courts/michigansupremecourt/rules/
court-rules-admin-matters/pages/default.aspx>.
Entered March 20, 2013 (File No. 2011-10)—R
EPORTER
.
On order of the Court, the proposed amendment of
Rule 7.118 of the Michigan Court Rules having been
published for comment at 491 Mich 1215-1218 (2012),
and an opportunity having been provided for comment
in writing and at a public hearing, the Court declines to
adopt the proposed amendment. This administrative
file is closed without further action.
C
AVANAGH
, J., would adopt the proposed amendment
of the rule.
Adopted May 2, 2013, effective September 1, 2013 (File No. 2010-34)—
R
EPORTER
.
On order of the Court notice of the proposed changes
and an opportunity for comment in writing and at a
public hearing having been provided, and consideration
having been given to the comments received, the fol-
lowing amendment is adopted, effective September 1,
2013.
[The present language is amended as indi-
cated below in underlining for new text and
in strikeover for text that has been deleted.]
R
ULE
6.419. M
OTION FOR
D
IRECTED
V
ERDICT OF
A
CQUITTAL
.
(A) Before Submission to Jury. After the prosecutor
has rested the prosecution’s case-in-chief and before the
defendant presents proofs, the court on its own initia-
ccxvi 493 M
ICHIGAN
R
EPORTS
tive may, or on the defendant’s motion must, direct a
verdict of acquittal on any charged offense as to which
the evidence is insufficient to support conviction. The
court may not reserve decision on the defendant’s
motion. If the defendant’s motion is made after the
defendant presents proofs, the court may reserve deci-
sion on the motion, submit the case to the jury, and
decide the motion before or after the jury has completed
its deliberations.
(A) Before Submission to the Jury. After the prosecu-
tor has rested the prosecution’s case-in-chief or after
the close of all the evidence, the court on the defen-
dant’s motion must direct a verdict of acquittal on any
charged offense for which the evidence is insufficient to
sustain a conviction. The court may on its own consider
whether the evidence is insufficient to sustain a convic-
tion. If the court denies a motion for a judgment of
acquittal at the close of the government’s evidence, the
defendant may offer evidence without having reserved
the right to do so.
(B) Reserving Decision. The court may reserve deci-
sion on the motion, proceed with the trial (where the
motion is made before the close of all the evidence),
submit the case to the jury, and decide the motion either
before the jury returns a verdict or after it returns a
verdict of guilty or is discharged without having re-
turned a verdict. If the court reserves decision, it must
decide the motion on the basis of the evidence at the
time the ruling was reserved.
(B)-(E) [Unchanged in substance, but relettered
(C)-(F).]
Staff Comment: New subrules (A) and (B) are modeled on FR Crim P
29. As with the 1994 Amendments to FR Crim P 29, this amendment
should remove the dilemma in cases in which the trial court would feel
pressured to make an immediate, and possibly erroneous, decision or
violate the former version of the rule by reserving judgment on the
M
ICHIGAN
C
OURT
R
ULES OF
1985 ccxvii
motion. The stakes in this area are unusually high because double
jeopardy precludes appellate review of a trial court’s decision to grant a
motion for directed verdict of acquittal before the jury reaches a verdict.
See, e.g., Evans v Michigan, ___ US ___; 133 S Ct 1069; 185 L Ed 2d 124
(2013). Allowing the court to reserve judgment until after the jury
returns a verdict mitigates double jeopardy concerns because “reversal
would result in reinstatement of the jury verdict of guilt, not a new trial.”
Id., 133 S Ct at 1081 n 9, citing United States v Wilson, 420 US 332; 95
S Ct 1013; 43 L Ed 2d 232 (1975).
The staff comment is not an authoritative statement by the Court.
ccxviii 493 M
ICHIGAN
R
EPORTS
AMENDMENTS OF LOCAL COURT
RULES
T
HIRD
J
UDICIAL
C
IRCUIT
Approved September 19, 2012, effective January 1, 2013 (File No.
2012-07)—R
EPORTER
.
On order of the Court, notice of the proposed changes
and an opportunity for comment having been provided,
the following Rule 3.204 of the Local Court Rules of the 3d
Judicial Circuit Court is adopted, effective January 1,
2013.
R
ULE
3.204. P
ROCEEDINGS
A
FFECTING
C
HILDREN
.
(A) In any action involving a child custody dispute
that falls under the “DC” case type code, the
plaintiff/petitioner shall file a completed Third Circuit
Court child custody action cover sheet.
(B) In any action seeking registration, enforcement,
or modification of another state’s or a foreign country’s
child custody determination, the parties shall use the
most recent local Court Uniform Child Custody Juris-
diction and Enforcement Act forms or the most recent
equivalent State Court Administrative Office forms.
Staff Comment: These local court rule provisions of the 3d Judicial
Circuit Court have been adopted in an effort to better process cases filed
with a case-type suffix of “DC.” Subrule (A) requires the use of uniform
Child Custody Cover Sheets when an action is filed in a child custody
dispute. Subrule (B) requires the use of the most recent local Court
Uniform Child Custody Jurisdiction and Enforcement Act forms or the
equivalent most recent State Court Administrative Office forms in an
ccxix
action seeking registration, enforcement, or modification of another
state’s or a foreign country’s child custody determination.
The staff comment is not an authoritative construction by the Court.
O
AKLAND
C
OUNTY
P
ROBATE
C
OURT
Approved October 24, 2012, effective immediately (File No. 2012-29)—
R
EPORTER
.
On order of the Court, Rule 5.503 of the Local Court
Rules of the Oakland County Probate Court is re-
scinded, effective immediately.
ccxx 493 M
ICHIGAN
R
EPORTS
AMENDMENT OF MICHIGAN
CODE OF JUDICIAL CONDUCT
Adopted May 1, 2013, effective August 1, 2013 (File No. 2005-11)—
R
EPORTER
.
On order of the Court, notice of the proposed changes
and an opportunity for comment in writing and at a
public hearing having been provided, and consideration
having been given to the comments received, the fol-
lowing amendments of Canons 2, 4, 5, and 7 of the Code
of Judicial Conduct and amendment of Rule 8.2 of the
Michigan Rules of Professional Conduct are adopted,
effective September 1, 2013.
[The present language is amended as indi-
cated below by underlining for new text and
strikeover for text that has been deleted.]
C
ANON
2.AJ
UDGE
S
HOULD
A
VOID
I
MPROPRIETY AND THE
A
PPEARANCE OF
I
MPROPRIETY IN
A
LL
A
CTIVITIES
.
A. Public confidence in the judiciary is eroded by
irresponsible or improper conduct by judges. A judge
must avoid all impropriety and appearance of impropri-
ety. A judge must expect to be the subject of constant
public scrutiny. A judge must therefore accept restric-
tions on conduct that might be viewed as burdensome
by the ordinary citizen and should do so freely and
willingly.
ccxxi
B. A judge should respect and observe the law. At all
times, the conduct and manner of a judge should
promote public confidence in the integrity and impar-
tiality of the judiciary. Without regard to a person’s
race, gender, or other protected personal characteristic,
a judge should treat every person fairly, with courtesy
and respect.
C. A judge should not allow family, social, or other
relationships to influence judicial conduct or judgment.
A judge should not use the prestige of office to advance
personal business interests or those of others, but
participation in activities allowed in Canon 4 is not a
violation of this principle.
D. A judge should not appear as a witness in a court
proceeding unless subpoenaed.
D.E. A judge may respond to requests for personal
references.
E.F. A judge should not allow activity as a member of
an organization to cast doubt on the judge’s ability to
perform the function of the office in a manner consis-
tent with the Michigan Code of Judicial Conduct, the
laws of this state, and the Michigan and United States
Constitutions. A judge should be particularly cautious
with regard to membership activities that discriminate,
or appear to discriminate, on the basis of race, gender,
or other protected personal characteristic. Nothing in
this paragraph should be interpreted to diminish a
judge’s right to the free exercise of religion.
G. No judge may accept any contribution of money,
directly or indirectly, for a campaign deficit or for
expenses associated with judicial office. Requests for
payment of membership dues or fees in a judicial
association do not constitute solicitation of funds for
purposes of this provision.
ccxxii 493 M
ICHIGAN
R
EPORTS
C
ANON
4.AJ
UDGE
M
AY
E
NGAGE IN EXTRAJUDICIAL ACTIVI-
TIES TO
I
MPROVE THE
L
AW, THE
L
EGAL
S
YSTEM, AND THE
DMINISTRATION OF
J
USTICE
.
As a judicial officer and person specially learned in
the law, a judge is in a unique position to contribute to
the improvement of the law, the legal system, and the
administration of justice, including revision of substan-
tive and procedural law and improvement of criminal
and juvenile justice. To the extent that time permits,
the judge is encouraged to do so, either independently
or through a bar association, judicial conference, or
other organization dedicated to the improvement of the
law. A judge should regulate extrajudicial activities to
minimize the risk of conflict with judicial duties.
A judge, subject to the proper performance of judicial
duties, may engage in the following quasi-judicial ac-
tivities:
A. Law-Related Activities.
A.(1) A judge may speak, write, lecture, teach, and
participate in other activities concerning the law, the
legal system, and the administration of justice.
B.(2) A judge may appear at a public hearing before
an executive or legislative body or official on matters
concerning the law, the legal system, and the adminis-
tration of justice, and may otherwise consult with such
executive or legislative body or official on such matters.
C.(3) A judge may serve as a member, officer, or
director of an organization or governmental agency
devoted to the improvement of the law, the legal system,
or the administration of justice. A judge may assist such
an organization in raising funds and may participate in
the their management and investment of such an
organization’s funds, but should not individually solicit
funds.
C
ODE OF
J
UDICIAL
C
ONDUCT
ccxxiii
(4) A judge may make recommendations to public
and private fund-granting agencies on projects and
programs concerning the law, the legal system, and the
administration of justice.
C
ANON
5.AJ
UDGE
S
HOULD
R
EGULATE
EXTRA-J
UDICIAL
A
CTIVITIES TO
M
INIMIZE THE
R
ISK OF
C
ONFLICT WITH
J
UDI-
CIAL
D
UTIES
.
(A)B. Avocational Activities. A judge may write, lec-
ture, teach, speak, and consult on nonlegal subjects,
appear before public nonlegal bodies, and engage in the
arts, sports, and other social and recreational activities,
if such avocational activities do not detract from the
dignity of the office or interfere with the performance of
judicial duties.
(B)C. Civic and Charitable Activities. A judge may
participate in civic and charitable activities that do not
reflect adversely upon the judge’s impartiality or inter-
fere with the performance of judicial duties. A judge
may serve and be listed as an officer, director, trustee, or
nonlegal advisor of a bona fide educational, religious,
charitable, fraternal, or civic organization, subject to
the following limitations: (1). A judge should not serve
if it is likely that the organization will be engaged in
proceedings that would ordinarily come before the
judge or will be regularly engaged in adversary proceed-
ings in any court.
(2) A judge should not individually solicit funds for
any educational, religious, charitable, fraternal, or civic
organization, or use or permit the use of the prestige of
the office for that purpose, but may be listed as an
officer, director, or trustee of such an organization. A
judge may, however, join a general appeal on behalf of
an educational, religious, charitable, or fraternal orga-
nization, or speak on behalf of such organization.
ccxxiv 493 M
ICHIGAN
R
EPORTS
D. Fundraising Activities. A judge should not indi-
vidually solicit funds for any educational, religious,
charitable, fraternal, or civic organization or any orga-
nization or governmental agency devoted to the im-
provement of the law, the legal system, or the adminis-
tration of justice or use or permit the use of the prestige
of the office for that purpose. A judge may, however,
serve as a member of an honorary committee or may
join a general appeal on behalf of such an organization.
A judge may speak at or receive an award or other
recognition in connection with an event of such an
organization. A judge may allow his or her name or title
to be used in advertising the judge’s involvement in an
event so long as the judge does not individually solicit
funds.
C.E. Financial Activities.
(1) A judge should refrain from financial and busi-
ness dealings that tend to reflect adversely on the
judge’s impartiality or judicial office, interfere with the
proper performance of judicial duties, exploit the judi-
cial position, or involve the judge in frequent transac-
tions with lawyers or persons likely to come before the
court on which the judge serves.
(2) Subject to the requirements of CE(1), a judge may
hold and manage investments, including real estate,
and engage in other remunerative activity, but should
not serve as director, officer, manager, advisor, or em-
ployee of any business. Provided, however, with respect
to a judge holding office and serving as an officer,
director, manager, advisor, or employee of any business
not prohibited heretofore by law or judicial canon, the
effective date of the prohibition contained herein shall
be the date of expiration of the judge’s current judicial
term of office.
C
ODE OF
J
UDICIAL
C
ONDUCT
ccxxv
(3) A judge should manage investments and other
financial interests to minimize the number of cases in
which the judge is disqualified. As soon as it can be done
without serious financial detriment, the judge should
dispose of investments and other financial interests
that require frequent disqualification.
(4) Neither a judge nor a family member residing in
the judge’s household should accept a gift, bequest,
favor, or loan from anyone except as follows:
(a) A judge may accept a gift or gifts not to exceed a
total value of $100, incident to a public testimonial;
books supplied by publishers on a complimentary basis
for official use; or an invitation to the judge and spouse
to attend a bar-related function or activity devoted to
the improvement of the law, the legal system, or the
administration of justice.
(b) A judge or a family member residing in the judge’s
household may accept ordinary social hospitality; a gift,
bequest, favor, or loan from a relative; a wedding or
engagement gift; a loan from a lending institution in its
regular course of business on the same terms generally
available to persons who are not judges; or a scholarship
or fellowship awarded on the same terms applied to
other applicants.
(c) A judge or a family member residing in the judge’s
household may accept any other gift, bequest, favor, or
loan only if the donor is not a party or other person
whose interests have come or are likely to come before
the judge, and, if its value exceeds $100, the judge
reports it in the same manner as compensation is
reported in Canon 6C.
(5) For the purposes of this section, “family member
residing in the judge’s household” means any relative of
ccxxvi 493 M
ICHIGAN
R
EPORTS
a judge by blood or marriage, or a person treated by a
judge as a family member, who resides in the judge’s
household.
(6) A judge is not required by this code to disclose
income, debts, or investments, except as provided in
this canon and Canons 3 and 6.
(7) Information acquired by a judge in a judicial
capacity should not be used or disclosed by the judge in
financial dealings or for any other purpose not related
to judicial duties.
D.F. Fiduciary Activities. A judge should not serve as
an executor, administrator, testamentary trustee, or
guardian, except for the estate, testamentary trust, or
person of a member of the judge’s immediate family,
and then only if such service will not interfere with the
proper performance of judicial duties. As a family
fiduciary, a judge is subject to the following restrictions:
(1) A judge should not serve if it is likely that as such
fiduciary the judge will be engaged in proceedings that
would ordinarily come before the judge or if the estate,
trust, or ward becomes involved in adversary proceed-
ings in the court on which the judge serves or one under
its appellate jurisdiction.
(2) While acting as such fiduciary, a judge is subject to
the same restrictions on financial activities that apply
in the judge’s personal capacity.
E.G. Arbitration. A judge should not act as an arbi-
trator or mediator, except in the performance of judicial
duties.
F.H. Practice of Law. A judge should not practice law
for compensation except as otherwise provided by law.
G.I. Extra-Jjudicial Appointments. A judge should
not accept appointment to a governmental committee,
commission, or other position that is concerned with
C
ODE OF
J
UDICIAL
C
ONDUCT
ccxxvii
issues of fact or policy on matters other than the
improvement of the law, the legal system, or the admin-
istration of justice. A judge, however, may represent the
country, state, or locality on ceremonial occasions or in
connection with historical, educational, and cultural
activities.
C
ANON
5. A
PPLICABILITY OF THE
C
ODE OF
J
UDICIAL
C
ONDUCT
TO
J
UDICIAL
C
ANDIDATES
.
All judicial candidates are subject to Canon 1, Canon
2, Canon 4A-4D and Canon 7 of the Code of Judicial
Conduct as applicable during a judicial campaign. A
successful candidate, whether or not an incumbent, and
an unsuccessful candidate who is a judge, are subject to
judicial discipline for campaign misconduct. An unsuc-
cessful candidate who is a lawyer is subject to lawyer
discipline for judicial campaign misconduct.
C
ANON
7.AJ
UDGE OR A
C
ANDIDATE FOR
J
UDICIAL
O
FFICE
S
HOULD
R
EFRAIN FROM
P
OLITICAL
A
CTIVITY
I
NAPPROPRIATE
TO
J
UDICIAL
O
FFICE
.
A.-B. [Unchanged.]
C. Fund Raising Other Than for Campaign Purposes
Prohibited: Except as provided in 7B(2)(b), (c),
(1) No judge shall accept a testimonial occasion on
the judge’s behalf where the tickets are priced to cover
more than the reasonable costs thereof, which may
include only a nominal gift,
(2) No judge or other person, party, committee,
organization, firm, group or entity may accept any
contribution of money or of a tangible thing of value,
directly or indirectly, to or for a judge’s benefit for any
purpose whatever, including but not limited to, contri-
bution for a campaign deficit, expenses associated with
judicial office, testimonial, honorarium (other than for
services, subject to Canon 6) or otherwise.
ccxxviii 493 M
ICHIGAN
R
EPORTS
D.C. ApplicabilityWind up of Law Practice.
(1) A successful candidate, whether or not an incum-
bent, and an unsuccessful candidate who is a judge, are
subject to judicial discipline for campaign misconduct.
An unsuccessful candidate who is a lawyer is subject to
lawyer discipline for judicial campaign misconduct.
(2) A successful elected candidate who was not an
incumbent has until midnight December 31 following
the election to wind up the candidate’s law practice, and
has until June 30 following the election to resign from
organizations and activities, and divest interests that do
not qualify under Canons 4 or 5.
(3)(2) Upon notice of appointment to judicial office, a
candidate shall wind up the candidate’s law practice
prior to taking office, and has six months from the date
of taking office to resign from organizations and activi-
ties and divest interests that do not qualify under
Canons 4 or 5.
Comment:
Assessments by lawyers are relied on in evaluating
the professional or personal fitness of persons being
considered for election or appointment to judicial office
and to public legal offices, such as attorney general,
prosecuting attorney and public defender. Expressing
honest and candid opinions on such matters contributes
to improving the administration of justice. Conversely,
false statements by a lawyer can unfairly undermine
public confidence in the administration of justice.
When a lawyer seeks judicial office, the lawyer should
be bound by applicable limitations on political activity.
To maintain the fair and independent administration
of justice, lawyers are encouraged to continue tradi-
tional efforts to defend judges and courts unjustly
criticized.
C
ODE OF
J
UDICIAL
C
ONDUCT
ccxxix
Staff Comment: These amendments reflect an effort to make the
judicial canons consistent regarding law-related and nonlaw-related
extrajudicial activities in which judges may participate, and to clarify the
activities that are allowed or prohibited. The proposal retains the explicit
prohibition on a judge individually soliciting funds, and likewise prohibits
the use of the prestige of the office for that purpose. The newly-
constituted Canon 4, which consolidates previous Canon 4 and Canon 5
into one canon, permits a judge to engage in various specific activities,
including serving as a member of an honorary committee or joining a
general appeal, speaking at or receiving an award at an organization’s
event, and allowing the judge’s name to be used in support of a
fundraising event. The proposal also includes several suggested revisions
that were recommended during the public comment period.
In addition to combining Canons 4 and 5 into one canon, the
amendments eliminate the language of Canon 7C that prohibited a judge
from accepting a testimonial, and move the reformulated language from
Canon 7C(2) prohibiting a judge from accepting a contribution of money
to Canon 2G. Also, the proposal clarifies Canon 2 so that activities
allowed under Canon 4 are not considered a violation of the principle of
use of the prestige of office. Further, the amendments clarify that certain
canons of the Code of Judicial Conduct (specifically Canons 1, 2, 4[A]-[D]
and 7) apply to all candidates for judicial office as part of the new
language inserted as Canon 5. Finally, MRPC 8.2 (which applies to
lawyers) is amended to reflect that the judicial canons applicable to
judicial candidates are set out in new Canon 5.
Nearly all of the current language in Canon 2, 4, 5, and 7 is retained
in this proposal. The new language adds explicit provisions to describe
the types of activities that are allowed or prohibited for judges which
until now had been undefined and therefore the source of confusion.
The staff comment is not an authoritative construction by the Court.
ccxxx 493 M
ICHIGAN
R
EPORTS
AMENDMENT OF MICHIGAN RULES
OF
PROFESSIONAL CONDUCT
Adopted May 1, 2013, effective September 1, 2013 (File No. 2005-11)—
R
EPORTER
.
On order of the Court, notice of the proposed changes
and an opportunity for comment in writing and at a
public hearing having been provided, and consideration
having been given to the comments received, the fol-
lowing amendments of Canons 2, 4, 5, and 7 of the Code
of Judicial Conduct and amendment of Rule 8.2 of the
Michigan Rules of Professional Conduct are adopted,
effective September 1, 2013.
[The following amendment adopts a change in
Rule 8.2 of the Michigan Rules of Professional
Conduct]
R
ULE
8.2. J
UDICIAL AND
L
EGAL
O
FFICIALS
.
(a) A lawyer shall not make a statement that the
lawyer knows to be false or with reckless disregard as to
its truth or falsity concerning the qualifications or
integrity of a judge, adjudicative officer, or public legal
officer, or of a candidate for election or appointment to
judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall
comply with the applicable provisions of the Code of
Judicial Conduct as provided under Canon 5.
ccxxxi
Comment:
Assessments by lawyers are relied on in evaluating
the professional or personal fitness of persons being
considered for election or appointment to judicial office
and to public legal offices, such as attorney general,
prosecuting attorney and public defender. Expressing
honest and candid opinions on such matters contributes
to improving the administration of justice. Conversely,
false statements by a lawyer can unfairly undermine
public confidence in the administration of justice.
When a lawyer seeks judicial office, the lawyer should
be bound by applicable limitations on political activity.
To maintain the fair and independent administration
of justice, lawyers are encouraged to continue tradi-
tional efforts to defend judges and courts unjustly
criticized.
Staff Comment: These amendments reflect an effort to make the
judicial canons consistent regarding law-related and nonlaw-related
extrajudicial activities in which judges may participate, and to clarify the
activities that are allowed or prohibited. The proposal retains the explicit
prohibition on a judge individually soliciting funds, and likewise prohibits
the use of the prestige of the office for that purpose. The newly-
constituted Canon 4, which consolidates previous Canon 4 and Canon 5
into one canon, permits a judge to engage in various specific activities,
including serving as a member of an honorary committee or joining a
general appeal, speaking at or receiving an award at an organization’s
event, and allowing the judge’s name to be used in support of a
fundraising event. The proposal also includes several suggested revisions
that were recommended during the public comment period.
In addition to combining Canons 4 and 5 into one canon, the
amendments eliminate the language of Canon 7C that prohibited a judge
from accepting a testimonial, and move the reformulated language from
Canon 7C(2) prohibiting a judge from accepting a contribution of money
to Canon 2G. Also, the proposal clarifies Canon 2 so that activities
allowed under Canon 4 are not considered a violation of the principle of
use of the prestige of office. Further, the amendments clarify that certain
canons of the Code of Judicial Conduct (specifically Canons 1, 2, 4[A]-[D]
and 7) apply to all candidates for judicial office as part of the new
language inserted as Canon 5. Finally, MRPC 8.2 (which applies to
ccxxxii 493 M
ICHIGAN
R
EPORTS
lawyers) is amended to reflect that the judicial canons applicable to
judicial candidates are set out in new Canon 5.
Nearly all of the current language in Canon 2, 4, 5, and 7 is retained
in this proposal. The new language adds explicit provisions to describe
the types of activities that are allowed or prohibited for judges which
until now had been undefined and therefore the source of confusion.
The staff comment is not an authoritative construction by the Court.
R
ULES OF
P
ROFESSIONAL
C
ONDUCT
ccxxxiii
INVESTITURE CEREMONY FOR
THE HONORABLE
BRIDGET MARY MCCORMACK
J
ANUARY
23, 2013
CHIEF JUSTICE YOUNG: Welcome. Good after-
noon. And welcome to this investiture of Justice
B
RIDGET
M
ARY
M
C
C
ORMACK
. I want to make a special
welcome to her family and friends. And I understand
that in addition to Justice M
C
C
ORMACK
’s husband
Steven Croley and their children, Jack, Anna, Matt, and
Harry, we have with us her mother Norah McCormack
and stepfather Gordon Boals as well as her brother
William and other family members, and I welcome you
all. And because in my experience teenaged children
and brothers are more willing to throw someone under
the bus, I invite the children and the brother to my
chambers afterwards so I can learn more about my
newest colleague.
Now an investiture ceremony is, of course, a joyful
event in a new judge’s life and for her family and
friends. It’s a lot like a wake when the honoree is
lauded, but where the honoree actually gets to hear the
praise. And, indeed, if necessary, make a rebuttal. I for
one have been entirely beguiled by our newest col-
league. She is endlessly bright, obviously in love with
the law, and engaged. So I am grateful to the voters of
Michigan for sending her to us. These investiture
ceremonies provide an opportunity to take pride in the
new judge’s achievements, to look forward to what she
ccxxxv
will accomplish, and for the new jurist to acknowledge
with gratitude the love and support of others who
helped her reach this goal. But it’s also an event in this
Court’s life and a profoundly serious one. As we mark
the beginning of a new justice’s tenure, it is a time for
reaffirming our own fidelity to the rule of law and our
commitment to serve the people of Michigan. When
Justice M
C
C
ORMACK
raises her right hand to take the
oath of office, all of us bear witness to her oath. But we
also reflect on its meaning for us, particularly those of
us who are judges. We do not often make public prom-
ises; these are rare events. When we do take oaths and
vows, it is when we are committing to something higher
than ourselves—a profession, a marriage, the defense of
our country, the Constitution. This is a grand moment
for Justice M
C
C
ORMACK
, but it is also an opportunity for
the rest of us who wear black robes to ponder and
reaffirm our own commitment to the rule of law that
makes our system of ordered liberty possible. So to
begin the ceremony, let us stand to reaffirm our fidelity
to our country. Harry Croley and Matthew McCormack
will lead us in the Pledge of Allegiance.
I pledge Allegiance to the flag of the United States of
America and to the Republic for which it stands, one nation
under God, indivisible, with Liberty and Justice for all.
CHIEF JUSTICE YOUNG: And now I call on Wallace
Riley, the President of the Michigan Supreme Court
Historical Society. Wally’s wife D
OROTHY
C
OMSTOCK
R
I-
LEY
, of happy memory, was a Justice and Chief Justice of
this Court and founded the Historical Society with
Wally. Wally is a veteran of many a Supreme Court
investiture and we’re pleased to have him serve as the
master of ceremonies for the remainder of our program.
MR. RILEY: Thank you. Mr. Chief Justice, Associate
Justices of the Michigan Supreme Court, judges and
ccxxxvi 493 M
ICHIGAN
R
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lawyers, friends and family of Justice M
C
C
ORMACK
, and
ladies and gentlemen. While the weather outside is
frightful, the Hall of Justice is plain delightful. So on
behalf of the officers and directors of the Michigan
Supreme Court Historical Society I want to thank you,
thank all of you, this large crowd, for attending today in
the Hall of Justice. And our thanks too to the Court for
inviting the Society once again to participate in the
investiture of Justice B
RIDGET
M
ARY
M
C
C
ORMACK
.
It’s with great pleasure now to introduce to you Dean
Evan Caminker who has been the Dean of the Univer-
sity of Michigan Law School since 2003 and who, having
served his sentence as dean with great distinction, will
soon be free to return to his calling as a great law
professor. Dean Caminker.
DEAN CAMINKER: Thank you very much. Mr. Chief
Justice, fellow distinguished members of the Supreme
Court, members of the judiciary, fellow lawyers, family,
and friends. I am Evan Caminker, the Dean of the
University of Michigan Law School, and it’s a great
pleasure to join all of you today to celebrate the inves-
titure of B
RIDGET
M
C
C
ORMACK
—I’m sorry—B
RIDGET
M
ARY
M
C
C
ORMACK
. I have spent most of my career
studying judicial decision making and I have a great
appreciation for the role of this Court in our federal
system. The Court articulates our state and nation’s
most basic legal principles and provides concrete shape
to the laws of the land. Bridget, you are joining an
august institution with much important work to do.
Now jurists on this and other high courts are typically
very smart and very self-confident. Such judges may not
be easily persuaded to change their views. But Bridget,
if you’re about to join a group of decision makers who
always thinks they’re right, wants to win every argu-
ment even when the stakes are small, I can’t imagine a
M
C
C
ORMACK
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better training ground than 15 years of faculty meet-
ings. Now, seriously, I actually do believe that Bridget’s
experience as a law school professor has prepared her
well for a smooth transition from commencement robes
to judicial robes. For the past ten years, Bridget has
been the Associate Dean for Clinical Affairs, supervis-
ing the entire Michigan Law Clinical Program in which
the students engage in hands-on lawyering. She’s dem-
onstrated her prowess as an unparalleled lawyer,
teacher, and leader. Successful clinical teaching requires
an understanding of legal theory and a mastery of legal
doctrine. It demands exquisite lawyering skills includ-
ing sensitive and careful reading of statutes and judicial
precedents. It requires a keen understanding of how the
law works on the ground and how decisions affect the
everyday lives of citizens. According to Bridget’s stu-
dents, successful clinical practice also entails endlessly
driving a minivan around the entire state. One student
described her as a nonstop mom and a carpooling pro.
She will certainly bring some very unique skills to this
bench. She will also bring a sophisticated understand-
ing of some of the most fundamental values of our legal
system. Bridget used to teach a course called Access to
Justice. She demonstrated that people with limited
financial and other resources frequently lack meaning-
ful input into the political decisions that affect their
lives. As a result, sometimes an open courthouse door
with a welcoming judge is the only way to ensure that
all of our fellow citizens can truly have a voice in
self-governance. And over the past few years Bridget
has helped develop a new Innocence Clinic to identify
and free citizens who have been wrongly convicted and
imprisoned, not because their trial was somehow defec-
tive, but because they are factually innocent of the
crime. Even government leaders, who are fervently
tough on crime, must decry errors that leave innocent
ccxxxviii 493 M
ICHIGAN
R
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people behind bars and the actual perpetrators still
roaming the streets. I think we can all admire Bridget’s
lifelong contributions to preserving the most funda-
mental values of our judicial system. Indeed, her values
strike me as similar to those of T
HOMAS
C
OOLEY
who was
a justice of this Court long ago and a founding member
of the Michigan Law faculty. Justice C
OOLEY
opined
We fail to appreciate the dignity of the academic profes-
sion, if we look for it either in profundity of learning or
forensic triumph. The profession’s reason for being must
be found in the effective aid it renders justice and in the
sense that it gives of public security through its steady
support of public order.
I have no doubt that Bridget will do her share to
promote justice and preserve order in this state. Finally,
we all want to celebrate the many wonderful personal
attributes that Bridget will bring to the bench. She is
both brilliant and commonsensical. She can persuade
and is open to being persuaded. She has a wicked sense
of humor too often wielded at my expense. Her new
colleagues, consider yourselves warned. She is unceas-
ingly fair-minded in the way she treats both people and
ideas. She sets very high standards for herself and has
an unbelievable work ethic. A student once described
her as the Energizer Bunny with an extra battery pack.
She has the strength of character necessary to follow
the law, even when doing so is unpopular. And, finally, a
student once described her as “the coolest professor at
the law school,”—I know I’m going to regret repeating
this—“she’s even cooler than her husband Steve.” This
is a bittersweet day for the University of Michigan Law
School; the faculty loses a fabulous teacher, lawyer, and
leader. And today is bittersweet for me personally as
well. I lose a wonderful counselor and a good friend with
whom I’ve worked closely for over ten years. I should
M
C
C
ORMACK
I
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add that Bridget’s husband, Steve, was also my first
Associate Dean for Academic Affairs before he ran off
and started doing some other government thing. In-
deed, Steve was the person most directly responsible for
recruiting me to join the Michigan faculty. So I feel
quite personally connected to their family and I miss
their daily presence in the Michigan Law Quadrangle.
But while the bitter will bite, the sweet is oh, so sweet.
Let me once again quote one of Bridget’s students.
“This new endeavor is a loss for the law school and all
of Bridget’s clients, but a huge gain for those seeking to
be judged within a truly just system of law.” Bridget, I
am very excited for you and I am very proud of you.
Good luck, Godspeed, and, of course, Go Blue.
MR. RILEY: I’m looking over the crowd because I’m
trying to figure out if there is anybody out there who
has known Justice M
ICHAEL
C
AVANAGH
longer than me
and I doubt it.
CHIEF JUSTICE YOUNG: I do too.
MR. RILEY: Well, I want to call on Justice C
AVANAGH
now who is in his 31st year as a Justice of the Michigan
Supreme Court. When he completes his current term,
which will be next year, he will be tied with Big-Four
Justice J
AMES
V. C
AMPBELL
as the longest serving justice
of the Michigan Supreme Court—quite a record—a
record not easily achieved—and certainly not likely to
be broken. So Justice Michael, will you say a few words
to the crowd?
JUSTICE CAVANAGH: Thank you Wally. May it
please the Court and Justice M
C
C
ORMACK
. I’m very
grateful for this opportunity to formally welcome Jus-
tice M
C
C
ORMACK
as the 108th justice to serve this Court.
I now have had the privilege of serving with 23 of those
justices. Each has brought a distinct background and
talent that unquestionably changed the chemistry of
ccxl 493 M
ICHIGAN
R
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this collegial body. And I’m confident that Justice
M
C
C
ORMACK
’s wisdom, her energy, her experience, and
her passion will do the same. And I’m sure they will
enable her, and hopefully each of us, to strive to avoid
that mechanical indifference alluded to by the famous
British author G.K. Chesterton when he wrote
The horrible thing about all legal officials, even the best,
about all judges, magistrates, barristers, detectives, and
policemen, is not they are wicked (some of them are good),
not that they are stupid (several of them are quite intelli-
gent), it is simply that they have got used to it. Strangely
they do not see the prisoner in the dock; all they see is the
usual man in the usual place. They do not see the awful
court of judgment; they see only their own workshop.
I think each of us needs to be ever mindful lest we fall
victim to that indifference. And, echoing the Dean, in
naming Justice M
C
C
ORMACK
as associate dean for clini-
cal affairs, Dean Jeffrey Lehman said “Professor Mc-
Cormack is an extraordinarily gifted teacher who has
earned the admiration and respect of students and
colleagues alike. She has a subtle and powerful mind, an
astonishing work ethic, and an infectious commitment
to her craft.” I think everybody here can agree today
that this Court is indeed fortunate to have her join us.
So Bridget, I’ll conclude by wishing you an old Irish
toast that says, “May the worst of the days ahead of you
be better than the best of the days behind you.”
Welcome.
MR. RILEY: Before I introduce the next speaker, I
want to make a little observation. If you look at the row
of judges in front, actually they are two rows, you will
see that half of them are women. And you might think
oh, isn’t that a little surprising, but it isn’t surprising
because Justice R
ILEY
, Justice W
EAVER
, Justice B
OYLE
,
and Justice K
ELLY
, were four out of seven—the first
M
C
C
ORMACK
I
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ccxli
majority women Court in Michigan and the second in
the country. So women judges and justices are now with
us for the good and for the better and for the future. I
now want to call on and next let you hear from Justice
M
ARY
B
ETH
K
ELLY
, the 106th justice of the Michigan
Supreme Court and the eighth woman to serve on that
Court. Justice K
ELLY
.
JUSTICE MARY BETH KELLY: Thank you Mr.
Riley. Mr. Chief Justice, Justice M
C
C
ORMACK
, my fellow
justices, judges of the Court of Appeals, Bridget’s family,
friends all. I want to thank Justice M
C
C
ORMACK
for the
opportunity to talk at her investiture. I met Justice
M
C
C
ORMACK
what does seem like forever ago, one after-
noon in Ann Arbor and I’ve had the good fortune to be
her friend since. I’m so happy to welcome her as the
ninth woman justice on the Supreme Court. I was asked
over and over again during the campaign and since,
what is she like—what is Justice M
C
C
ORMACK
like—
what is Bridget like. And over and over again I really
come on one word to describe Bridget. She’s so authen-
tic. People will agree and people have said, yes, there’s
no pretext, there’s no pretense with Bridget. Even with
this investiture, she shared shortly after the election, “I
would like an investiture if people just didn’t have to
say things about me.” And it really comes down to,
Bridget really defines, she personifies humility. And the
virtue of humility is something that in a justice is a good
thing. We on the Supreme Court—I think all of us
would agree that we want to embody humility, but
Bridget really does. There’s nothing about her, there’s
nothing about her life, that could ever be described as
bragging. Even it was years before I came to know that
her brother and sister, who she often fondly talked
about, were in show business, for example, and I asked
her once, “What is that like?” The fondest memory
which she delighted in, for example, was, “Well, when
ccxlii 493 M
ICHIGAN
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Will appears as a guest star on Mary’s show and I can
watch them on television, they banter back and forth
just like it was growing up,” she would say. “And I can
see on television just the way they were growing up.”
And it’s that delight in her family that really carries
through with everything that Bridget does. She does
have the scholarship, all the accomplishment in the law;
she’s brought that to the Court. We as a Court—in these
three short weeks that she’s shared with us—we are so
different. Her wit—she’s so incredibly intelligent that
that wit comes through. She, as the Chief Justice has
said, beguiles us and everyone gets that we as a Court
are so much better off with her. Let me just share one
example of this humility. I recall a couple of years ago
receiving a text from Bridget about a little film that she
and Steve were putting together, as she called it, and
inviting me to a viewing. Now it sounded like a home
movie that they were making—truly—and I thought I
was being invited to her home in Douglas to watch a
home movie that she and Steve were making—that’s
what she made it sound like. For those of you without
ties to the Saugatuck/Douglas area, of course, this was
“Everyday People,” a motion picture shown at the
Saugatuck Center for the Performing Arts—the 2011
movie—the Michigan documentary movie of the year
which Bridget produced and Steven directed. And this
speaks to not just her humility, but the fact that she’s so
accomplished in areas not just in the law but outside the
law as well. And she brings this excellence to everything
she does. The way that she raises her children, she
holds them to high standards. They are accomplished
athletes, musicians, scholars, but you only know that if
you ask just the right question—because she’s not going
to brag, that humility comes through in everything she
does. So we as a Court are so honored, we’re so blessed,
to have Bridget with all the scholarship, with all the
M
C
C
ORMACK
I
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ccxliii
excellence, but also with that humility, with that au-
thenticity. Everyone on the Court made me promise
that I would say we are all so happy to have her. We as
a Court are better off with her. And so Bridget, we
welcome you with open arms, with open hearts, as the
ninth woman justice, the 108th justice of the Court,
we’re so thrilled to have you.
MR. RILEY: Madam Justice, if you’re going to do a
movie about the Court, I hope you’ll save me a couple of
tickets. You know it’s not often that Hollywood comes to
Michigan and certainly not today when the tempera-
ture hovers near zero. But I’m pleased to present to you
now to speak Mr. William McCormack who was de-
scribed to me as the much younger brother of our new
justice and certainly no “frenemy” of this state. He
doesn’t write opinions like his sister, he simply writes
award winning screenplays. You’re on.
MR. McCORMACK: Thank you Mr. Riley. May it
please the Court. My name is William McCormack and
I’m representing the family of B
RIDGET
M
C
C
ORMACK
.You
may ask yourself why someone who lives in Los Ange-
les, California and writes romantic comedies for a living
is qualified to speak here today. The answer is, he’s not.
Objection!—sorry, I’ve always wanted to do that. Other
than my beloved mother, I have known Justice M
C
C
OR-
MACK
longer than anyone here today because I am her
little brother. And in a lot of ways I know her better
than anyone and she asked me to speak and now you
can’t stop me. Bridget had a super power when we were
young. She never once argued or lost her composure.
This is not to say that there were never disagreements,
but she was always able to settle disputes rationally,
logically, compassionately, and she did it by listening.
How did a young girl instinctively know how to do this?
My sister Mary, our middle sibling, and I just settled an
ccxliv 493 M
ICHIGAN
R
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argument last week by wrestling. I’m 39—she won—
again. She’s very strong. I idolized Bridget when I was
little; she was like a superhero to me. The prettiest and
smartest girl in our neighborhood. And even as a little
kid, I knew she had an innate instinct for right and
wrong—mine was less sharp. But I knew that I could
rely on Bridget. She was a lamplight in the dark and I
aligned myself with her, everyone did. She was a leader
and I knew I wanted to be on her team. When the world
felt like the Legion of Doom, I knew that I was working
for the Hall of Justice. She made the world a better
place for her brother and I’ve watched her make the
world a better place for her clients, her students, and
her children. And she has done it the old-fashioned way,
through hard work, consistency, humility, and a sharp
sense of decency. While I was taking break dancing
classes at the YMCA, Bridget was mastering Latin. I
knew she would go on to do great things in life, that she
would work for justice and equality and fairness be-
cause it is in her nature—she had to—it was her
destiny. Bridget, you have made our family very proud.
More importantly, you will make Michigan a better and
more just place to live. I know you will seize the
opportunity the people have given you. You will not
disappoint them. This alleged superpower she had as a
kid, it turns out, is the most human power of all, the
ability to listen to people with opinions different than
yours—to really listen and respect and honor them. And
maybe now it is harder than ever to hear people with
the cacophony of Twitter and Facebook and the on-
slaught of media and technology. The world is imperfect
and it always will be, but we can try to make it better.
There is senseless horrific gun violence that has become
common and the whole world screams for an answer. In
some places, they still legislate love and tell you you
can’t marry someone of the same sex allowing fear and
M
C
C
ORMACK
I
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ccxlv
ignorance and archaism to win. Republicans and Demo-
crats continue to spar and a lot of days it seems that
party alliances are more important than the pressing
everyday problems of ordinary people. There is a lot of
work to be done. The state of Michigan, let me tell you,
you have a new sister and her name is B
RIDGET
M
ARY
M
C
C
ORMACK
. And I can assure you with all my heart and
all my confidence you are in good hands. She will fight
for your rights without causing more fights. She will
listen and you will be heard. Thank you.
MR. RILEY: And now direct from the White House,
it’s my honor to introduce to you Deputy White House
Counsel and Deputy Assistant to President Obama,
Steven Croley, or as he will soon be known here in
Michigan, Justice M
C
C
ORMACK
’s husband.
MR. CROLEY: Already known as. Thank you Mr.
Riley for that and thank all of you here for attending
today and thanks to those who supported Bridget along
the way. I’d also like to thank our kids, Anna, Jack,
Harry, and Matt, for this was a family project and they
worked hard to make this day possible. They also made
some sacrifices over the past year. As Bridget was often
at evening events and I work out of town during the
week, there were many times they had to fend for
themselves. But they survived, and they showed great
poise as campaigners in their own right. Very shortly
after the election we went for a family walk. Periodi-
cally, Bridget and I enlist our kids to go for a walk with
us. And the kids look forward to it just about as much as
they look forward to cleaning their rooms. But we
insist, and we asked them “what was the biggest thing
you learned during the whole campaign season?” They
had followed the national election closely too, and for
months our house had felt like a 24 hour civic seminar.
So we wondered what lesson stood out most for them.
ccxlvi 493 M
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We were struck by the unanimity and speed of their
answer. They said the most important thing they
learned was, as they put it, “how to mooch a ride home
off of other people.” So thanks, kids, for learning to
mooch a ride home and for your hard work. I was moved
by Will’s remarks, but I’ve had a slightly different
experience. I have known Bridget to be capable of being
argumentative at times, though rarely. And an expres-
sion she often uses in those moments is “for the
record.” She uses that turn of phrase and sometimes it
comes out as “just for the record.” And so when I hear
“for the record,” I brace myself because I know some
kind of gotcha or zinger is coming. Well, we’re on the
record today. For those of you who don’t know this
ceremony is an officially recorded session this Court
and it occurred to me that I’ll probably never have this
chance again to address my spouse literally in a re-
corded judicial proceeding.
CHIEF JUSTICE YOUNG: Hopefully.
MR. CROLEY: So I wanted to say Bridget, for the
record, I love you. Now many claim that two-lawyer
marriages are not ideal and I understand that perspec-
tive. For an attorney it might be nice to come home and
talk about anything else besides the law, but I feel
differently. I like coming home and talking about legal
issues with my spouse “behind the scenes” as you might
say. And you certainly get a view of someone’s profes-
sional character that way, and it is from that personal
perspective that I want to express why I think Bridget
will make an exceptional Supreme Court justice. There
are many reasons; I’ll mention two. First, Bridget will
make a great justice because of her work ethic and
tenacity. As any lawyer knows much of law is grunt
work, and mastering all of the sometimes tedious detail
is the difference between competent and exceptional
M
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ORMACK
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advocacy. Litigation is 90 percent preparation. Trials
require planning for contingencies that never material-
ize. Oral argument requires preparing answers to many
questions that are never asked. Innumerable times I
have seen Bridget prepare late into the night or all
night to make sure no issue of a case or an argument
was forgotten or under-analyzed. She is and always has
been a tireless professional. And a quick study—she
doesn’t just recycle yesterday’s lessons. Onto the next
topic, onto the next challenge, that is Bridget’s attitude
whether that requires mastering arts and science or
some new municipal code. Great judges too, of course,
are those who master the details of the case. Mr. Chief
Justice, if you are looking for somebody to take on a
tough new assignment and who thrives on hard work,
you have such a new colleague in Bridget. Second,
Bridget will make a great justice precisely because her
career path did not lead inevitably here. The Legal Aid
Society is not the fast-track to the high court bench. In
fact, she never took any easy path. Instead, she always
fought for what is right even when it was not popular,
even at professional risk or when the rewards were low.
Some of you are aware of the many innocence cases she
has successfully litigated. And when you win an inno-
cence case there can be a certain amount of glory that
comes with that at the very end. The cases are covered
in the press, lawyers groups give you awards, they hold
dinners in your honor, and I’m very proud of Bridget for
all the recent recognition she has received. Although
lately it’s this award and that award, and it’s starting to
get annoying. But more striking and far more impres-
sive is her habit of taking on such cases in the very first
place, for when a lawyer agrees to advocate for an
underdog, you can’t be sure you’ll win. The rational
expectation is that you won’t win—that’s what makes
an underdog an underdog—they usually lose. Yet in
ccxlviii 493 M
ICHIGAN
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talking to Bridget about whether to take this case or
that case or seek justice for one client or another, she
has always been motivated to do what is right, not what
is likely successful or that for which she will get credit.
Many times—too many times to count—I have heard
her talk about how she might well not prevail, but that
a would-be client deserved a chance because they had
been disserved by the legal system somehow. Often she
has taken cases knowing full well that she will be
criticized for even accepting them. But she has moral
courage, and that is why she will make a great justice.
For we expect our judiciary to do what is right even
when doing so is not popular, even when it is contro-
versial or will lead to criticism — that is what judges are
supposed to do. Of course, no one is entitled to sit on the
Michigan Supreme Court. No one deserves such a
privilege. Our courts are sacred institutions and their
importance transcends those who serve on them. But
Mr. Chief Justice and Associate Justices, I would submit
to the Court that Bridget’s energy, intelligence, persis-
tence, her courage and her fusion with a strong sense of
justice are the qualities that will make her an invalu-
able colleague. I would submit to you and to all of
Michigan’s citizens that they are very fortunate to have
her as this Court’s newest member. Thank you.
MR. RILEY: Mr. Chief Justice, are you ready for the
robing?
CHIEF JUSTICE YOUNG: I am. You’re in the Hall
of Justice, come join the Justice League. Probably only
the kids understand the reference. Would you raise your
right hand. Do you solemnly swear that you will sup-
port the Constitution of the United States—
JUSTICE McCORMACK: I solemnly swear that I
will support the Constitution of the United States—
M
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ORMACK
I
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CHIEF JUSTICE YOUNG: and the Constitution of
this state –
JUSTICE McCORMACK: and the Constitution of
this state –
CHIEF JUSTICE YOUNG: and that you will faith-
fully discharge the duties of the office of Michigan
Supreme Court Justice—
JUSTICE McCORMACK: and that I will faithfully
discharge the duties of Michigan Supreme Court
Justice—
CHIEF JUSTICE YOUNG: according to the best of
your ability.
JUSTICE McCORMACK: according to the best of my
ability.
CHIEF JUSTICE YOUNG: So help you God.
JUSTICE McCORMACK: So help me God.
CHIEF JUSTICE YOUNG: Congratulations.
JUDGE SHERIGAN: Justice McCormack. It is with
great honor that the Women Lawyers Association pre-
sents you with this banner in acknowledgment of the
great honor the Michigan residents have bestowed upon
you. Congratulations.
JUSTICE McCORMACK: Thank you.
MR. RILEY: The presentation of the banner was by
Honorable Angela Sherigan on behalf of the Women
Lawyers Association of Michigan.
CHIEF JUSTICE YOUNG: Rebuttal.
MR. RILEY: Your turn.
JUSTICE McCORMACK: Is it my turn? I always say
that low expectations are the key to life and I think I’ve
just completely messed this up. Thank you very much
Mr. Riley, and thank you to the Historical Society for
hosting such a nice event. Thank you to my new
ccl 493 M
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colleague and new friend Justice C
AVANAGH
,myold
colleague and old friend Dean Evan Caminker, my new
colleague but old friend Justice K
ELLY
, for taking to the
podium on my behalf. And to Will, Steve, Anna, Jack,
Matt and Harry for all of your participation here today.
I’m incredibly moved by this whole ceremony. And I also
want to thank the Chief Justice, Justice Z
AHRA
and
Justice M
ARKMAN
for the incredibly warm welcome you
have all shown me since I arrived a few weeks ago. I
don’t want to ruin your reputations so I won’t go on and
on. It’s difficult to express just how honored I am, and
how fortunate and grateful I feel today. I am so thankful
for the support you have all shown me, my family, my
friends, and the many new and lasting friends I have
made along the way. I am grateful for your moral
support, your hard work, and most of all for the
confidence you have placed in me. I will do everything I
can not to let you down: I will serve the taxpayers of our
state by doing my work quickly and efficiently. I will
serve the litigants before this Court by considering
their arguments slowly and carefully.
Quite honestly, I never dreamed of being a judge, let
alone a justice on the State’s highest court. And I never
aspired to it either. For years, I enjoyed the practice of
law from the other side of the bench, and got great
professional and personal satisfaction from advocating
for justice for my individual clients, and teaching law
students about the power and responsibility that comes
with a law degree. For I believe in the power of law, and
in the legal system that distinguishes our country from
so many other places. After all, a legal document gave
birth to our country, written by men who understood,
perhaps more than any before or since, that fairness
and justice require certain basic legal rules. In my
practice as an attorney, I tried to ensure that the legal
system’s rules were applied to advance the cause of
M
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ORMACK
I
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ccli
justice. Of course, anyone familiar with the legal system
knows that perfect justice is not achieved in every case.
But what is distinct about our system is that, where
attorneys do their jobs, and judges do theirs, there
justice might be achieved. This observation is one I
emphasized for all my students I have taught over the
years as well. The opportunity to advance the cause of
justice from the bench instead of the well is an honor. I
fully recognize that this transition requires a different
mindset, a fundamental mental shift on my part, from
advocate to arbiter. For a judge must be an advocate not
for any party to a case, but for evenhandedness, an
advocate for the rule of law itself. That is why we say
that justice is blind. Yet blind only to the parties before
the court, not to the importance of the role courts play
in our system of government, and certainly not indif-
ferent to the consequences of our decisions. But we are
not legislators. And the robes we wear do not magically
turn us into wise men and women. We are, rather,
stewards of the law, whose job it is to administer the law
created by our citizens and their elected representatives
neutrally.
Much can be said, and much has been written, about
this topic and the importance of a judge’s philosophy
and how the rule of law should inform a judge’s
deliberation. Far, far too little has been said, however,
about an equally important aspect of judicial decision-
making, and one I would like to address here. And that
is the importance of collegiality and the role of collective
decision-making. For the volumes of commentary about
judicial philosophy take the judge as an autonomous
thinker, as an individual decision-maker who reasons—
all by himself or herself—about how to apply the
principles of law to the facts of a given case. This image
of the judge as an autonomous decision-maker makes
perfect sense for judges who, like most, preside in their
cclii 493 M
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courtrooms alone. But the Michigan Supreme Court is,
of course, a collegial body. We make our decisions
collectively. And like other small collective bodies, the
work-product of the Michigan Supreme Court is greater
than the sum of the individual contributions of its
members. Even when cases generate different opinions
from its members, the judgments of the Court are the
judgments of no single justice acting alone, and our
written opinions reflect, and should reflect, our collec-
tive responses to the cases before us. Much like juries or
corporate boards or scientific review panels, when our
body is working as it should, our decisions will reflect
our collective judgments. And so I would like to empha-
size my approach to this aspect of judicial decision-
making—about my beliefs not about how I, but about
how we, approach our work. My new colleagues, my
judicial philosophy in this regard will guide me as
follows. I will always take your perspectives and reac-
tions to heart. I look forward to your legal insights, and
to all the ways you will improve my own reasoning. I
promise to be a good listener, to the litigants who
appear before us, but no less to you as well. I will
approach every case, and every conference with you,
with an open mind. I will consider your legal analyses
with the seriousness they deserve. And I will not view
the written opinions I author as mine alone. No doubt,
there will be times we see issues differently. Of course,
I am not pretending we will always reason our way to
consensus, nor should we. What I am saying is that even
when inevitably we disagree, I will not be disagreeable.
And most of all, I look forward to the analytical give and
take that sound decision-making by a high court re-
quires. For the framers also understood this point. They
saw fit to establish a multimember Supreme Court, not
a supreme court of one. I look forward, then, to reason-
ing collectively, to rendering the very best decisions this
M
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ORMACK
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body as a body can, so that we might vindicate the
confidence the people of the state of Michigan have
placed in all of us. Each of you has shown me exactly
this kind of collegiality already, in three short weeks,
and I thank you for that.
Once again, I am honored by the support of every-
body in this room. My deepest thanks to all of you for
being here today. I will always be mindful of the fact
that I was elected on the nonpartisan section of the
ballot. And I will do all I can to earn your confidence
through the work we do tomorrow. Thank you.
MR. RILEY: Well, you’ve just heard from the new kid
on the block—inspiring speech, inspiring words—and I
think she’s right. They’re lucky to have her. And, more
importantly, thank goodness that she likes to speak on
the record. You’ve got your marching orders. Now,
before the Court adjourns, I want to invite you all after
the adjournment and the Court closes to join in the
foyer for a reception in honor of our newest Justice—
Justice M
C
C
ORMACK
. Thank you. And thank you all for
coming.
CHIEF JUSTICE YOUNG: Well, that concludes the
proceeding today. I thank you all for coming and I hope
this day marks the beginning of a long and happy and
fruitful tenure on the Court for our newest justice. This
has been so much fun I bet we’re going to do it again
soon. We’re adjourned.
ccliv 493 M
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S
UPREME
C
OURT
C
ASES
PEOPLE v MACK
Docket No. 143244. Decided December 12, 2012.
Larry J. Mack was convicted in the Isabella Circuit Court of felonious
assault, MCL 750.82; three counts of fourth-degree child abuse, MCL
750.136b(7); reckless driving, MCL 257.626; and failure to stop at the
scene of an accident, MCL 257.620. The charges stemmed from a car
chase in which defendant pursued and, at one point, hit another car
containing his fiancée, her three children, and her parents. The Court
of Appeals, M
ETER
,P.J., and S
AAD
and W
ILDER
, JJ., affirmed in an
unpublished opinion per curiam issued April 21, 2011 (Docket No.
295929), and defendant sought leave to appeal.
In a memorandum opinion signed by Chief Justice Y
OUNG
and
Justices M
ARKMAN
,M
ARY
B
ETH
K
ELLY
, and Z
AHRA
, the Supreme
Court, in lieu of granting leave to appeal and without hearing oral
argument, held:
MCL 768.27b, which in certain instances expands the admissi-
bility of domestic-violence other-acts evidence beyond the scope
permitted by MRE 404(b)(1), does not infringe on the Supreme
Court’s authority to establish rules of practice and procedure
under article 6, § 5 of the 1963 Michigan Constitution for the
reasons articulated in People v Watkins, 491 Mich 450 (2012),
which addressed a very similar issue and controls this case.
Affirmed.
Justice M
ARILYN
K
ELLY
, joined by Justices C
AVANAGH
and
H
ATHAWAY
, dissenting, would have granted defendant’s applica-
tion for leave to appeal in order to reconsider Watkins, which
was wrongly decided. The majority’s extension of the reasoning
used in Watkins to this case rendered this case wrongly decided
as well. Because MCL 768.27b is a procedural rule that conflicts
with MRE 404(b), the Legislature overstepped its constitutional
authority under the separation of powers when enacting it.
C
ONSTITUTIONAL
L
AW —
S
UPREME
C
OURT —
P
OWERS
R
ESERVED TO THE
S
UPREME
C
OURT —
R
ULES OF
P
RACTICE AND
P
ROCEDURE —
E
VIDENCE —
A
DMISSIBILITY
.
MCL 768.27b, which in certain instances expands the admissibility
of domestic-violence other-acts evidence beyond the scope permit-
P
EOPLE V
M
ACK
1
ted by MRE 404(b)(1), does not infringe on the Supreme Court’s
authority to establish rules of practice and procedure under article
6, § 5 of the 1963 Michigan Constitution.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Risa Scully, Prosecuting Attorney,
and Linus Banghart-Linn, Assistant Attorney General,
for the people.
State Appellate Defender (by Douglas W. Baker) for
defendant.
M
EMORANDUM
O
PINION
. At issue is whether MCL
768.27b infringes on this Court’s authority to establish
rules of “practice and procedure” under the Michigan
Constitution. The Constitution provides that “[t]he
supreme court shall by general rules establish, modify,
amend and simplify the practice and procedure in all
courts of this state.” Const 1963, art 6, § 5.
MCL 768.27b addresses the admissibility of evidence
in domestic-violence cases that a defendant has commit-
ted other acts of domestic violence. It provides in part:
(1) Except as provided in subsection (4), 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 violence is admissible
for any purpose for which it is relevant, if it is not
otherwise excluded under Michigan rule of evidence 403.
***
(4) Evidence of an act occurring more than 10 years before
the charged offense is inadmissible under this section, unless
the court determines that admitting this evidence is in the
interest of justice. [MCL 768.27b.]
The statute thus in certain instances expands the admis-
sibility of domestic-violence other-acts evidence beyond
the scope permitted by MRE 404(b)(1), which states:
2 493 M
ICH
1 [Dec
O
PINION OF THE
C
OURT
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.
In People v Watkins, 491 Mich 450; 818 NW2d 296
(2012), this Court addressed an issue very similar to
that presented here. The statute at issue in Watkins,
MCL 768.27a, addresses the admissibility of evidence
that a defendant accused of certain sexual offenses
against a minor has committed other sexual offenses
against a minor. Though that statute also in certain
circumstances expanded the admissibility of such evi-
dence beyond the scope permitted by MRE 404(b)(1),
we determined that it did not infringe on this Court’s
authority under Const 1963, art 6, § 5. We hold that the
reasoning of Watkins fully controls in this case. For the
reasons articulated in Watkins, we conclude that MCL
768.27b does not infringe on this Court’s authority to
establish rules of “practice and procedure” under Const
1963, art 6, § 5. Likewise, the dissent’s arguments
here—the same as those advanced by the dissent in
Watkins—are unpersuasive for the reasons articulated
by the Court in Watkins.
In lieu of granting defendant’s application for leave
to appeal, we affirm the judgment of the Court of
Appeals.
1
Y
OUNG
, C.J., and M
ARKMAN
,M
ARY
B
ETH
K
ELLY
, and
Z
AHRA
, JJ., concurred.
1
People v Mack, unpublished opinion per curiam of the Court of
Appeals, issued April 21, 2011 (Docket No. 295929).
2012] P
EOPLE V
M
ACK
3
O
PINION OF THE
C
OURT
M
ARILYN
K
ELLY
,J.(dissenting). As noted by the
majority, at issue is whether MCL 768.27b infringes on
this Court’s constitutional authority to establish rules
of practice and procedure. Relying on its reasoning in
People v Watkins,
1
which considered a similar statute,
MCL 768.27a, the majority holds that MCL 768.27b
does not infringe on this Court’s constitutional author-
ity. I disagree. For the reasons stated in my dissenting
opinion in Watkins, that case was wrongly decided. The
majority’s extension of the reasoning used in Watkins to
this case renders this case wrongly decided as well.
Our Constitution provides this Court with the ex-
press authority to regulate rules of practice and proce-
dure.
2
As I explained in Watkins, statutes like MCL
768.27b infringe on that authority.
3
The majority’s
conclusion to the contrary, both in Watkins and in this
case, is imbued with the flawed reasoning of McDougall
v Schanz.
4
McDougall effectively neutered this Court’s
constitutional authority to regulate rules of practice
and procedure.
5
Nonetheless, as in Watkins,ifMcDou-
gall’s analysis were faithfully applied here, the majority
would recognize that MCL 768.27b is a quintessential
procedural rule involving the dispatch of judicial busi-
ness. Because that statute conflicts with MRE 404(b)
1
People v Watkins, 491 Mich 450; 818 NW2d 296 (2012).
2
Const 1963, art 6, § 5 provides the judiciary with the authority to
“establish, modify, amend and simplify the practice and procedure in all
courts of this state.”
3
See Watkins, 491 Mich at 499-507 (M
ARILYN
K
ELLY
, J., dissenting).
4
McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999).
5
McDougall held that this Court’s authority over “practice and proce-
dure” does not include all matters relating to the admission of evidence.
Id. at 29. Instead, it held that a legislatively created rule of evidence does
not violate article 6, § 5 of the 1963 Michigan Constitution unless “no
clear legislative policy reflecting considerations other than judicial dis-
patch of litigation can be identified....”Id. at 30 (quotation marks and
citations omitted).
4 493 M
ICH
1 [Dec
D
ISSENTING
O
PINION BY
M
ARILYN
K
ELLY
,J.
and regulates a matter of procedure, the Legislature
overstepped its constitutional authority when enacting
it. Thus, the statute is unconstitutional and violates the
constitutional separation of powers.
6
For these reasons, I would grant defendant’s appli-
cation for leave to appeal in order to reconsider Wat-
kins.
C
AVANAGH
and H
ATHAWAY
, JJ., concurred with M
ARILYN
K
ELLY
,J.
6
Const 1963, art 3, § 2 provides that “[t]he 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.”
2012] P
EOPLE V
M
ACK
5
D
ISSENTING
O
PINION BY
M
ARILYN
K
ELLY
,J.
PEOPLE v ZAJACZKOWSKI
Docket No. 143736. Argued October 10, 2012 (Calendar No. 5). Decided
December 19, 2012.
Jason J. Zajaczkowski pleaded guilty in the Kent Circuit Court,
James R. Reford, J., to a charge of first-degree criminal sexual
conduct under MCL 750.520b(1)(b)(ii) (victim and defendant
related by blood or affinity to the fourth degree). The plea was
conditioned on defendant’s being permitted to appeal with regard
to the issue whether the undisputed facts established that he
committed only third-degree criminal sexual conduct, MCL
750.520d(1)(a). The facts indicate that defendant was born in 1977
during the marriage of Walter and Karen Zajaczkowski. Walter
and Karen divorced in 1979. The divorce judgment referred to
defendant as the minor child of the parties. In 1992, Walter had a
child with another woman; that child was the victim in this case.
In 2007, when defendant was approximately 30 years old and the
victim was 14 years old, the criminal sexual conduct occurred.
Subsequent genetic testing indicated that Walter was not defen-
dant’s biological father. The Court of Appeals granted defendant’s
delayed application for leave to appeal. The Court of Appeals
affirmed, ruling that because defendant was conceived and born
during his mother’s marriage to the victim’s father, a strong
presumption of legitimacy arose that defendant lacked standing to
challenge and, as a result, defendant and the victim were related
by blood as a matter of law. 293 Mich App 370 (2011). The Supreme
Court granted defendant’s application for leave to appeal. 490
Mich 1004 (2012).
In a unanimous opinion by Justice H
ATHAWAY
, the Supreme
Court held:
The elements of first-degree criminal sexual conduct under
MCL 750.520b(1)(b)(ii) are (1) a sexual penetration, (2) a victim
who is at least 13 but less than 16 years of age, and (3) a
relationship by blood or affinity to the fourth degree between the
victim and the defendant. In this case, defendant did not dispute
that the first two elements were met, and the prosecution con-
ceded in the Court of Appeals that there was no evidence of a
relationship by affinity between the victim and the defendant. A
6 493 M
ICH
6 [Dec
relationship by blood means a relationship between persons aris-
ing by descent from a common ancestor or a relationship by birth
rather than marriage. The DNA evidence established that the
victim’s father was not defendant’s biological father. Accordingly,
defendant was not related to the victim by blood to the fourth
degree and the prosecution could not establish the relationship
element of the crime. The Court of Appeals erred by applying the
civil presumption of legitimacy in this criminal case when nothing
in the statutory language indicates that a relationship by blood
may be established using that presumption. Defendant was im-
properly convicted of first-degree criminal sexual conduct.
Conviction of first-degree criminal sexual conduct vacated; case
remanded for entry of a conviction of third-degree criminal sexual
conduct in accordance with defendant’s plea agreement and for
resentencing.
C
RIMINAL
L
AW —
C
RIMINAL
S
EXUAL
C
ONDUCT —
R
ELATIONSHIP
B
Y
B
LOOD TO THE
F
OURTH
D
EGREE
.
The elements of first-degree criminal sexual conduct under MCL
750.520b(1)(b)(ii) are (1) a sexual penetration, (2) a victim who is
at least 13 but less than 16 years of age, and (3) a relationship by
blood or affinity to the fourth degree between the victim and the
defendant; a relationship by blood means a relationship between
persons arising by descent from a common ancestor or a relation-
ship by birth rather than marriage; the civil presumption of
legitimacy cannot be used to establish a relationship by blood
under the statute when DNA evidence establishes that the defen-
dant and the victim are not related by blood.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, William A. Forsyth, Prosecuting At-
torney, and Timothy K. McMorrow, Chief Appellate
Attorney, for the people.
Ronald D. Ambrose for defendant.
Amicus Curiae:
Katherine L. Root and Joanne T. Ross for the Family
Law Section of the State Bar of Michigan.
H
ATHAWAY
, J. At issue in this case is whether defen-
dant was properly convicted of first-degree criminal
2012] P
EOPLE V
Z
AJACZKOWSKI
7
sexual conduct under MCL 750.520b(1)(b)(ii), which
requires that defendant be related to the victim “by
blood.”
1
While it is undisputed that there is no biologi-
cal relationship between defendant and the victim, the
prosecution asserts that the relationship element of the
crime has been met based on a civil presumption of
legitimacy. To determine whether the prosecution is
correct, we must address whether the civil presumption
of legitimacy implicated by statutory and caselaw, as
well as defendant’s lack of standing to challenge his
legitimacy under the Paternity Act, MCL 722.711 et
seq., are relevant to whether a relationship by blood
exists for purposes of establishing first-degree criminal
sexual conduct.
We conclude that the prosecution cannot establish a
blood relationship between defendant and the victim
when the undisputed evidence indicates that defendant
is not biologically related to the victim. Moreover, the
presumption of legitimacy cannot be substituted for a
blood relationship in order to fulfill this element of the
crime charged. Accordingly, we vacate defendant’s con-
viction for first-degree criminal sexual conduct. We
remand this case to the trial court for entry of a
conviction of third-degree criminal sexual conduct in
accordance with defendant’s plea agreement entered on
May 5, 2009, and for resentencing and further proceed-
ings not inconsistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
In this case, defendant was charged with first-degree
criminal sexual conduct under MCL 750.520b(1)(b)(ii),
which provides that
1
A relationship by “affinity” would also satisfy the relationship ele-
ment of the statute; however, the prosecution concedes that there is no
relationship by affinity in this case.
8 493 M
ICH
6 [Dec
[a] person is guilty of criminal sexual conduct in the first
degree if he or she engages in sexual penetration with
another person and if...:
***
(b) That other person is at least 13 years but less than
16 years of age and...:
***
(ii) The actor is related to the victim by blood or affinity
to the fourth degree. [Emphasis added.]
Defendant had sexual intercourse with the victim,
who was at least 13 but less than 16 years of age at the
time of the incident. The prosecution asserts that
defendant is related to the victim because defendant
was born during his mother’s marriage to the victim’s
biological father, Walter Zajaczkowski. Defendant’s
mother and Walter were divorced in 1979. While the
divorce judgment identified defendant as their child, a
DNA test later revealed that Walter is not actually
defendant’s biological father.
2
In 1992, Walter fathered
a child with another woman. That child is the victim in
this case. The prosecution concedes that in light of the
DNA test results, defendant is not biologically related
to the victim.
Because defendant is not biologically related to the
victim, defendant filed a motion in the trial court to
dismiss the first-degree criminal sexual conduct charge
or to reduce the charge to criminal sexual conduct in
the third degree. MCL 750.520d(1)(a) governs third-
degree criminal sexual conduct and provides that
2
While the instant case was pending in the trial court, Walter’s DNA
was compared to defendant’s DNA, and it was established that Walter is
not defendant’s biological father.
2012] P
EOPLE V
Z
AJACZKOWSKI
9
[a] person is guilty of criminal sexual conduct in the third
degree if the person engages in sexual penetration with
another person and if...:
(a) That other person is at least 13 years of age and
under 16 years of age.
The prosecution opposed defendant’s motion, relying
on the divorce judgment between defendant’s mother
and Walter identifying defendant as Walter’s child. The
prosecution argued that regardless of whether defen-
dant and Walter were related by blood, defendant is
legally Walter’s son.
Despite the uncontested DNA evidence, the trial
court denied defendant’s motion.
3
Defendant agreed to
plead guilty of first-degree criminal sexual conduct on
the condition that he would be permitted to appeal the
issue whether the facts establish that he is only guilty of
third-degree criminal sexual conduct.
4
The Court of Appeals granted defendant’s applica-
tion for leave to appeal and affirmed his conviction in a
published opinion.
5
On appeal, defendant argued that
the relationship element of the statute could not be
established because Walter is not his biological father
and defendant is not related by blood to Walter’s
daughter, the victim. While the prosecution conceded
that there is no biological relationship between defen-
dant and the victim, the prosecution contended that
3
The trial court reasoned that in light of the divorce judgment
presented by the prosecution, defendant was Walter’s child. Therefore,
the trial court concluded that a relationship of affinity existed between
the victim and defendant. Again, the prosecution now concedes that there
is no relationship by affinity.
4
Defendant’s plea was also conditioned on an agreement that the trial
court would use the sentencing guidelines for third-degree criminal
sexual conduct with a fourth-offense habitual-offender enhancement. See
MCL 769.12.
5
People v Zajaczkowski, 293 Mich App 370; 810 NW2d 627 (2011).
10 493 M
ICH
6 [Dec
defendant is nevertheless related to the victim as a
matter of law because defendant has no standing to
challenge the 1979 divorce judgment identifying him as
Walter’s child. The Court of Appeals agreed with the
prosecution, concluding that the absence of a biological
relationship does not affect the legal conclusion that
defendant and the victim are brother and sister because
they share the same legal father.
To reach its conclusion that defendant and the victim
are related by blood to the fourth degree, the Court of
Appeals relied on MCL 552.29, which states that with
regard to divorce actions, “[t]he legitimacy of all chil-
dren begotten before the commencement of any action
under this act shall be presumed until the contrary be
shown.” The Court of Appeals also relied on cases from
this Court involving the Paternity Act
6
and the Child
Custody Act,
7
which stand for the proposition that a
putative biological father lacks standing to even bring
an action to establish paternity unless there has been
some prior court determination that the child was not
the issue of the marriage.
8
The Court of Appeals addi-
tionally referred to statutes governing intestate succes-
sion that incorporate the presumption of legitimacy and
the standing requirement into intestate-succession dis-
putes.
9
Relying on these statutes and cases, the Court of
Appeals reasoned that only defendant’s mother and his
legal father, Walter, have standing to rebut the pre-
sumption that defendant was the legitimate issue of
6
MCL 722.711 et seq.
7
MCL 722.21 et seq.
8
See Barnes v Jeudevine, 475 Mich 696; 718 NW2d 311 (2006); In re
KH, 469 Mich 621; 677 NW2d 800 (2004); Girard v Wagenmaker, 437
Mich 231; 470 NW2d 372 (1991).
9
See MCL 700.2114(1)(a); MCL 700.2114(5).
2012] P
EOPLE V
Z
AJACZKOWSKI
11
their marriage. Because defendant lacks standing to
challenge that he is the legitimate issue of the victim’s
father, the Court of Appeals concluded that “as a matter
of law, defendant and the victim are related by blood—
brother and sister sharing the same father.”
10
There-
fore, the Court of Appeals held that defendant’s convic-
tion for first-degree criminal sexual conduct was proper.
This Court granted defendant’s application for leave to
appeal.
11
II. STANDARD OF REVIEW
This case involves the interpretation and application
of a statute, which is a question of law that this Court
reviews de novo.
12
III. ANALYSIS
The issue before this Court is whether defendant can
properly be convicted of first-degree criminal sexual
conduct under MCL 750.520b(1)(b)(ii). The elements
that the prosecution is required to prove under this
statute are: (1) sexual penetration, (2) a victim who is at
least 13 years old but less than 16 years old, and (3) a
relationship by blood or affinity to the fourth degree
between the victim and the defendant. Defendant does
not dispute that the first two elements have been met,
and the prosecution conceded in the Court of Appeals
that there is no evidence of a relationship by affinity
between the victim and defendant. Thus, the only issue
we address is whether a relationship by blood to the
fourth degree can be established in the face of undis-
10
Zajaczkowski, 293 Mich App at 377.
11
People v Zajaczkowski, 490 Mich 1004 (2012).
12
People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011); Miller-Davis
Co v Ahrens Constr, Inc, 489 Mich 355, 361; 802 NW2d 33 (2011).
12 493 M
ICH
6 [Dec
puted DNA evidence indicating that defendant is not
biologically related to the victim. The Court of Appeals
concluded that the relationship element can be estab-
lished in such a situation. We disagree with this analysis
because it is not supported by the plain language of the
statute at issue, MCL 750.520b(1)(b)(ii).
When interpreting statutes, this Court must “ascer-
tain and give effect to the intent of the Legislature.”
13
The words used in the statute are the most reliable
indicator of the Legislature’s intent and should be
interpreted on the basis of their ordinary meaning and
the context within which they are used in the statute.
14
For a defendant to be convicted of first-degree criminal
sexual conduct, MCL 750.520b(1)(b)(ii) requires that
the defendant and the victim be related “by blood or
affinity....” Because these terms are not expressly
defined anywhere in the statute, they must be inter-
preted on the basis of their ordinary meaning and the
context in which they are used.
A relationship by “blood” is defined as “a relation-
ship between persons arising by descent from a com-
mon ancestor”
15
or a relationship “by birth rather than
by marriage.”
16
Moreover, as the Court of Appeals
correctly noted, the context in which the term “by
blood” is used in the statute indicates that it is meant as
an alternative to the term “by affinity.” This Court has
defined “affinity” as
the relation existing in consequence of marriage between
each of the married persons and the blood relatives of the
other, and the degrees of affinity are computed in the same
way as those of consanguinity or kindred. A husband is
13
People v Koonce, 466 Mich 515, 518; 648 NW2d 153 (2002).
14
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
15
Black’s Law Dictionary (8th ed), p 182.
16
Random House Webster’s College Dictionary (2001), p 145.
2012] P
EOPLE V
Z
AJACZKOWSKI
13
related, by affinity, to all the blood relatives of his wife, and
the wife is related, by affinity, to all the blood relatives of
the husband.
[
17
]
Under the statutory language, the third element of
MCL 750.520b(1)(b)(ii) can only be met if defendant is
related to the victim in one of two ways—by blood or by
affinity. The conclusive DNA evidence establishes that
the victim’s father is not defendant’s biological father.
Defendant and the victim simply do not share a rela-
tionship arising by descent from a common ancestor,
and they are not related by birth. Accordingly, defen-
dant is not related to the victim by blood to the fourth
degree. Therefore, when interpreting the language of
the statute in light of its ordinary meaning and the
context in which it is used, we conclude that the
prosecution cannot establish the relationship element
of MCL 750.520b(1)(b)(ii).
18
While the Court of Appeals acknowledged the ordi-
nary meaning of a relationship “by blood or affinity,” it
then applied the civil presumption concerning the le-
gitimacy of a child in order to conclude that defendant
and the victim are related by blood as a matter of law.
However, nothing in the language of MCL
750.520b(1)(b)(ii) indicates that a relationship by blood
can be established through this presumption. In reach-
ing its conclusion, the Court of Appeals went beyond
17
Bliss v Caille Bros Co, 149 Mich 601, 608; 113 NW 317 (1907).
18
The prosecution has raised the argument that this interpretation
will result in unintended consequences regarding adopted children
because if the blood relationship element can only be established through
a biological relationship, then a sexual penetration committed by a
member of an adoptive family against an adopted minor child may not be
punishable under MCL 750.520b(1)(b)(ii). While we acknowledge that
the prosecution raises valid policy concerns, such policy concerns are best
left to the Legislature to address. It is this Court’s duty to enforce the
clear statutory language that the Legislature has chosen.
14 493 M
ICH
6 [Dec
the statute’s language and changed the ordinary mean-
ing of the statute’s terms by adding language that the
Legislature did not include.
Given that this case does not involve an action to
establish paternity, challenge child custody arrange-
ments, or dispute intestacy issues, we find it unneces-
sary to stray from this criminal statute’s plain and
unambiguous language. The question whether the re-
lationship element of the statute can be established
does not require a determination of whether defendant
is deemed “legitimate” for any of the stated civil-law
purposes or contexts in which the presumption of
legitimacy has been implicated.
19
Moreover, we decline
to conclude as a matter of law that defendant shares a
common ancestor with the victim and is thereby related
to the victim by blood merely because defendant may be
considered the issue of his mother’s marriage to the
victim’s father for legitimacy purposes.
20
Such a conclu-
sion would require this Court to extend the civil pre-
19
“This presumption vindicates a number of interests, not the least of
which include the interest of the child in not having his or her legitimacy
called into question, the interest of the state in ensuring that children are
properly supported, and the interest of both in assuring the effective
operation of intestate succession.” Barnes, 475 Mich at 715 (M
ARKMAN
,J.,
dissenting).
20
However, we do not hold that evidence indicating that a person was
born during a marriage may never be admissible in a criminal prosecu-
tion to show that the person is the natural child of his legal parents. We
acknowledge that when the prosecution alleges that the defendant and
the victim are related by blood because they have the same father,
evidence that the defendant was born during the marriage of his legal
parents would make the existence of a blood relationship between the
defendant and the victim more probable. See MRE 401; MRE 402. Thus,
while the civil presumption of legitimacy cannot be used in a criminal
case to conclusively establish a blood relationship, in the absence of a
determinative DNA test, the prosecution may use evidence that a person
was born during a marriage as evidence that the defendant is related to
the victim by blood to the fourth degree.
2012] P
EOPLE V
Z
AJACZKOWSKI
15
sumption of legitimacy to this criminal statute when
the Legislature clearly has not done so.
Because the elements of first-degree criminal sexual
conduct under MCL 750.520b(1)(b)(ii) cannot all be
met, we conclude that defendant was not properly
convicted of that crime.
21
IV. CONCLUSION
In light of the undisputed evidence indicating that
defendant is not biologically related to the victim, we
conclude that the prosecution cannot establish a blood
relationship between defendant and the victim. More-
over, the presumption of legitimacy cannot be substi-
tuted for a blood relationship in order to establish this
element of the crime charged. Accordingly, we vacate
defendant’s conviction for first-degree criminal sexual
conduct. We remand this case to the trial court for entry
of a conviction of third-degree criminal sexual conduct
in accordance with defendant’s plea agreement entered
on May 5, 2009, and for resentencing and further
proceedings not inconsistent with this opinion.
Y
OUNG
, C.J., and C
AVANAGH
,M
ARILYN
K
ELLY
,M
ARKMAN
,
M
ARY
B
ETH
K
ELLY
, and Z
AHRA
, JJ., concurred with
H
ATHAWAY
,J.
21
Defendant additionally argues that he is entitled to credit against the
sentence imposed in this case for the time he spent in jail between his
arrest and sentencing. Because defendant was on parole at the time he
committed the offense at issue, we agree with the Court of Appeals that
his argument fails under this Court’s decision in People v Idziak, 484
Mich 549; 773 NW2d 616 (2009).
16 493 M
ICH
6 [Dec
PEOPLE v BYLSMA
Docket No. 144120. Argued October 11, 2012. Decided December 19,
2012.
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(1) and (2)(d). Defendant moved to
dismiss 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 his 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 needs of a specific qualifying patient must be
kept in an enclosed, locked facility that can only be accessed by one
person, 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, G
LEICHER
,P.J., and H
OEKSTRA
and S
TEPHENS
,
JJ., affirmed, holding that defendant was not entitled to § 4
immunity because the MMMA did not authorize him to possess the
marijuana plants that were being grown and cultivated for regis-
tered qualifying patients whom he was not connected to through
the Michigan Department of Community Health (MDCH) regis-
tration process and that his failure to meet the requirements of § 4
immunity made him ineligible to raise the § 8 defense. 294 Mich
App 219 (2011). Defendant sought leave to appeal. The Supreme
Court ordered and heard oral argument on whether to grant the
application for leave to appeal or take other peremptory action.
492 Mich 871 (2012).
In a unanimous opinion by Chief Justice Y
OUNG
, the Supreme
Court held:
2012] P
EOPLE V
B
YLSMA
17
In order to receive immunity under § 4 of the MMMA, a
registered primary caregiver may not possess more than 12
marijuana plants for each qualifying patient to whom he or she is
connected through the state’s registration process. However, a
defendant need not establish the elements of § 4 immunity in
order establish the elements of a § 8 defense.
1. The MMMA introduced into Michigan law an exception to
the Public Health Code’s prohibition on the use of controlled
substances by permitting the medical use of marijuana when
carried out in accordance with the MMMA’s provisions. Section
4(b) of the MMMA limits the amount of marijuana that a regis-
tered primary caregiver may possess and still be entitled to § 4
immunity. In particular, § 4(b)(2) limits the number of marijuana
plants that a registered primary caregiver may possess to 12 plants
for each registered qualifying patient connected to the primary
caregiver through the MDCH registration process. Section 4(a)
concerns registered qualifying patients and contains similar limi-
tations on the possession of marijuana plants. Thus, the Court of
Appeals correctly held that only one of two people may possess a
patient’s 12 marijuana plants for purposes of immunity under
§§ 4(a) and 4(b): the registered qualifying patient himself or
herself if the patient has not specified that a primary caregiver be
allowed to cultivate the patient’s plants or the patient’s registered
primary caregiver if the patient has specified that a primary
caregiver be allowed to cultivate the patient’s plants.
2. The MMMA incorporates the definition of possession of
controlled substances used in longstanding Michigan law. The
essential inquiry is whether there is a sufficient nexus between the
defendant and the contraband, including whether the defendant
exercised dominion and control over it. In this case, defendant
exercised dominion and control over all the marijuana plants
seized from the warehouse space that he leased, given that he was
actively engaged in growing all the marijuana in the facility; used
his horticultural knowledge and expertise to oversee, care for, and
cultivate all the marijuana growing there; and had the ability to
remove any or all of the plants given his unimpeded access to the
warehouse space. For defendant, who was connected to two
qualifying patients through the MDCH’s registration process,
§ 4(b) permitted him to possess no more than 24 plants. Because
defendant clearly possessed more plants than allowed under § 4
and possessed plants on behalf of patients with whom he was not
connected through the state’s registration process, defendant was
not entitled to § 4 immunity.
18 493 M
ICH
17 [Dec
3. Because § 4 limits both the amount of marijuana that any
individual may possess and who may possess any marijuana plant,
for a patient or caregiver to receive immunity under § 4, the
enclosed, locked facility housing marijuana plants required by
MCL 333.26423(c) and MCL 333.26424(b)(2) must be such that it
allows only one person to possess the marijuana plants enclosed
therein: the registered qualifying patient himself or herself if the
patient has not specified that a primary caregiver be allowed to
cultivate the patient’s marijuana plants or the patient’s registered
primary caregiver if the patient has specified that a primary
caregiver be allowed to cultivate the patient’s plants.
4. To establish the elements of the affirmative defense in § 8 of
the MMMA, a defendant need not establish the elements of § 4. As
long as the defendant can establish the elements of the § 8 defense
and none of the circumstances in § 7(b) of the MMMA, MCL
333.26427(b), exists, the defendant is entitled to dismissal of
criminal charges. In this case, although defendant reserved the
right to assert a § 8 defense, he had not done so. Given that
defendant had not yet proceeded to trial, he still had the opportu-
nity to assert the defense in a motion to dismiss.
Court of Appeals’ judgment affirmed with regard to immunity
under § 4 of the MMMA, reversed to the extent that it held that
defendant was precluded from asserting a defense under § 8 of the
MMMA, and case remanded for further proceedings.
1. C
ONTROLLED
S
UBSTANCES —
M
ARIJUANA —
M
EDICAL
M
ARIJUANA —
I
MMUNITY —
P
OSSESSION OF
M
ARIJUANA
P
LANTS
.
The Michigan Medical Marihuana Act (MMMA) provides an excep-
tion to the Public Health Code’s prohibition of the use of con-
trolled substances by permitting the medical use of marijuana
when carried out in accordance with the MMMA’s provisions;
§ 4(b) of the act, MCL 333.26424(b), limits the amount of mari-
juana that a registered primary caregiver may possess and still be
entitled to immunity under § 4; § 4(b)(2) limits the number of
marijuana plants that a registered primary caregiver may possess
to 12 plants for each registered qualifying patient connected to the
primary caregiver through the state’s registration process; § 4(a)
of the act, MCL 333.26424(a), concerns registered qualifying
patients and contains similar limitations on the possession of
marijuana plants; only one of two people may possess a patient’s
12 marijuana plants for purposes of immunity under §§ 4(a) and
4(b): the registered qualifying patient himself or herself if the
patient has not specified that a primary caregiver be allowed to
cultivate the patient’s plants or the patient’s registered primary
2012] P
EOPLE V
B
YLSMA
19
caregiver if the patient has specified that a primary caregiver be
allowed to cultivate the patient’s plants.
2. C
ONTROLLED
S
UBSTANCES —
M
ARIJUANA —
M
EDICAL
M
ARIJUANA —
P
OSSESSION
.
The Michigan Medical Marihuana Act incorporates the definition of
possession of controlled substances used in longstanding Michigan
law; the essential inquiry is whether there is a sufficient nexus
between the defendant and the contraband, including whether the
defendant exercised dominion and control over it (MCL 333.26421
et seq.)
3. C
ONTROLLED
S
UBSTANCES —
M
ARIJUANA —
M
EDICAL
M
ARIJUANA —
I
MMUNITY —
M
ARIJUANA
P
LANTS —
P
OSSESSION —
E
NCLOSED
,L
OCKED
F
ACILITY
.
For a patient or caregiver to receive immunity for possession of
marijuana plants under § 4 of the Michigan Medical Marihuana
Act, MCL 333.26424, the plants must be kept in an enclosed,
locked facility; the facility must be such that it allows only one
person to possess the marijuana plants enclosed therein: the
registered qualifying patient himself or herself if the patient has
not specified that a primary caregiver be allowed to cultivate the
patient’s marijuana plants or the patient’s registered primary
caregiver if the patient has specified that a primary caregiver be
allowed to cultivate the patient’s plants (MCL 333.26423[c] and
MCL 333.26424[b][2]).
4. C
ONTROLLED
S
UBSTANCES —
M
ARIJUANA —
M
EDICAL
M
ARIJUANA —
A
FFIRMATIVE
D
EFENSE
.
To establish the elements of the affirmative defense in § 8 of the
Michigan Medical Marihuana Act, MCL 333.26428, a defendant
need not establish the elements for entitlement to immunity under
§ 4 of the act, MCL 333.26424; as long as the defendant can
establish the elements of the § 8 defense and none of the circum-
stances in § 7(b) of the act, MCL 333.26427(b), exists, the defen-
dant is entitled to dismissal of criminal charges.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, William A. Forsyth, Prosecuting At-
torney, Timothy K. McMorrow, Chief Appellate Attor-
ney, and Gary A. Moore, Assistant Prosecuting Attor-
ney, for the people.
Bruce Alan Block PLC (by Bruce A. Block) for defen-
dant.
20 493 M
ICH
17 [Dec
Amici Curiae:
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Jennifer Clark, Assistant Attorney Gen-
eral, for the Attorney General.
Gerald A. Fisher for the Michigan Municipal League
and the Public Corporation Law Section of the State
Bar of Michigan.
David P. Cahill, Dennis M. Hayes, and Rosemary G.
Pánuco for the Ann Arbor Medical Cannabis Guild, Inc.
Y
OUNG
, C.J. In this prosecution for the manufacture
of marijuana in violation of the Public Health Code,
MCL 333.7401(1) and (2)(d), we must determine
whether § 4 of the Michigan Medical Marihuana Act
(MMMA)
1
provides a registered primary caregiver with
immunity when growing marijuana collectively with
other registered primary caregivers and registered
qualifying patients. We hold that § 4 does not contem-
plate such collective action. As a result, defendant is not
entitled to its grant of immunity from arrest, prosecu-
tion, or penalty, and we affirm the judgment of the
Court of Appeals to the extent that it concluded that
defendant was not entitled to § 4 immunity.
The MMMA authorizes “[t]he medical use of mari-
huana...totheextent that it is carried out in accordance
with [its] provisions....”
2
In order to receive immunity
under § 4, a registered primary caregiver may not possess
more than 12 marijuana plants for each qualifying patient
to whom he is connected through the state’s registration
process. We agree with the Court of Appeals that defen-
1
MCL 333.26424.
2
MCL 333.26427(a).
2012] P
EOPLE V
B
YLSMA
21
dant exercised dominion and control over all the plants in
the warehouse space that he leased, not merely the plants
in which he claimed an ownership interest. Section 4 does
not allow the collective action that defendant has under-
taken because only one of two people may possess mari-
juana plants pursuant to §§ 4(a) and 4(b): a registered
qualifying patient or the primary caregiver with whom the
qualifying patient is connected through the registration
process of the Michigan Department of Community
Health (MDCH). Because defendant possessed more
plants than § 4 allows and he possessed plants on behalf of
patients with whom he was not connected through the
MDCH’s registration process, defendant is not entitled to
§ 4 immunity.
In addition to immunity under § 4, the MMMA created
a second protection for primary caregivers of medical
marijuana patients: an affirmative defense from prosecu-
tion under § 8.
3
The Court of Appeals erred when it
concluded that defendant was not entitled to assert the § 8
affirmative defense solely because he did not satisfy the
possession limits of § 4. Rather, in People v Kolanek,we
held that a defendant need not establish the elements of
§ 4 immunity in order to establish the elements of the § 8
defense.
4
Accordingly, we reverse the Court of Appeals’
judgment to the extent that it conflicts with Kolanek.
However, it would be premature for this Court to deter-
mine whether defendant has in fact satisfied the elements
of the § 8 defense because he has not formally asserted the
§ 8 defense in a motion to dismiss. Instead, he has simply
reserved the right to raise a § 8 defense at a later time.
Accordingly, we remand this case to the Kent Circuit
Court for further proceedings consistent with this opinion
and with Kolanek.
3
MCL 333.26428.
4
People v Kolanek, 491 Mich 382, 403; 817 NW2d 528 (2012).
22 493 M
ICH
17 [Dec
I. FACTS AND PROCEDURAL HISTORY
Pursuant to § 6 of the MMMA, a qualifying patient and
his primary caregiver, if any, can apply to the MDCH for a
registry identification card.
5
Defendant Ryan Bylsma did
so and, at all relevant times for the purposes of this
appeal, was registered with the MDCH as the primary
caregiver for two registered qualifying medical marijuana
patients. He leased commercial warehouse space in Grand
Rapids and equipped that space both to grow marijuana
for his two patients and to allow him to assist other
qualifying patients and primary caregivers in growing
marijuana.
6
A single lock secured the warehouse space,
which was divided into three separate booths. The booths
were latched but not locked, and defendant moved plants
between the booths depending on the growing conditions
that each plant required. Defendant spent 5 to 7 days each
week at the warehouse space, where he oversaw and cared
for the plants’ growth. Sometimes, defendant’s brother
would help defendant care for and cultivate the plants.
Defendant had access to the warehouse space at all times,
although defense counsel acknowledged that two others
also had access to the space.
In September 2011, a Grand Rapids city inspector
forced entry into defendant’s warehouse space after he
noticed illegal electrical lines running along water
lines.
7
The inspector notified Grand Rapids police of the
marijuana that was growing there. The police executed
a search warrant and seized approximately 86 to 88
5
MCL 333.26426.
6
Defendant received specialized training in growing and cultivating
marijuana in California.
7
Defendant has filed a separate pretrial motion to suppress this entry
and subsequent seizure. However, that motion to suppress is not part of
his appeal in this Court, which involves only his motion to dismiss.
2012] P
EOPLE V
B
YLSMA
23
plants.
8
Defendant claims ownership of 24 of the seized
plants and asserts that the remaining plants belong to
the other qualifying patients and registered caregivers
whom he was assisting.
Defendant was charged with manufacturing mari-
juana in violation of the Public Health Code, MCL
333.7401(1) and (2)(d), subject to an enhanced sen-
tence under MCL 333.7413 for a subsequent con-
trolled substances offense.
9
Defendant moved to dis-
miss the charges under the MMMA’s grant of
immunity in § 4, claiming that he possessed 24 of the
seized plants, that other registered qualifying pa-
tients and registered primary caregivers owned the
remaining plants, and that all of them used the
warehouse space as a common enclosed, locked facil-
ity. Defendant also reserved the right to raise the
affirmative defense provided by § 8 of the MMMA.
After conducting an evidentiary hearing, the Kent
Circuit Court denied defendant’s motion to dismiss,
holding that § 4 of the MMMA requires each regis-
tered qualifying patient’s plants to be “kept in an
enclosed, locked facility that can only be accessed by
one individual....” Furthermore, the court held
that because defendant had not complied with § 4, he
was not entitled to raise an affirmative defense under
§8.
8
Although the evidentiary hearing testimony and Court of Appeals’
decision reflect that the police seized 88 marijuana plants, there is
other evidence in the record indicating the seizure of only 86 plants.
Because this appeal does not turn on the difference between 86 and 88
plants, we need not be concerned with this outstanding factual
question.
9
The record indicates that defendant was convicted of a misdemeanor
offense for using marijuana in 2005. In order to become a primary
caregiver under the MMMA, a person must “[have] never been convicted
of a felony involving illegal drugs.” MCL 333.26423(g).
24 493 M
ICH
17 [Dec
The Court of Appeals affirmed the circuit court’s
decision.
10
The panel determined that defendant pos-
sessed all the seized marijuana plants because “[h]e
knew of the presence and character of the plants and he
exercised dominion and control over them.”
11
The panel
explained that § 4 immunity only permits a registered
primary caregiver to possess up to 12 plants for each
qualifying patient to whom he is connected through the
MDCH’s registration process. The panel concluded that
defendant was not entitled to § 4 immunity because the
MMMA did not authorize him “to possess the mari-
juana plants that were being grown and cultivated for
registered qualifying patients that he was not con-
nected to through the MDCH’s registration process[.]”
12
Finally, the panel held that defendant’s failure to meet
the requirements of § 4 immunity made him ineligible
to raise the § 8 defense.
13
This Court ordered oral argument on defendant’s
application for leave to appeal, asking that the parties
address the following:
(1) whether the Michigan Medical Marihuana Act
(MMMA), MCL 333.26421 et seq., permits qualifying patients
and registered primary caregivers to possess and cultivate
marijuana in a collective or cooperative and (2) whether,
under the circumstances of this case, the defendant was
entitled to immunity from prosecution for manufacturing
marijuana under § 4 of the MMMA, MCL 333.26424, or
entitled to dismissal of the manufacturing charge under the
affirmative defense in § 8 of the act, MCL 333.26428.
[
14
]
10
People v Bylsma, 294 Mich App 219; 816 NW2d 426 (2011).
11
Id. at 230.
12
Id. at 233. Because the issue whether § 4 requires each patient’s 12
plants to be in a separate enclosed, locked facility was irrelevant to
defendant’s possession of those plants, the panel declined to reach the
circuit court’s resolution of that issue.
13
Id. at 236.
14
People v Bylsma, 492 Mich 871 (2012).
2012] P
EOPLE V
B
YLSMA
25
II. STANDARD OF REVIEW
We review for an abuse of discretion a circuit court’s
ruling on a motion to dismiss
15
but review de novo the
circuit court’s rulings on underlying questions regard-
ing the interpretation of the MMMA,
16
which the people
enacted by initiative in November 2008.
17
“[T]he intent
of the electors governs” the interpretation of voter-
initiated statutes,
18
just as the intent of the Legislature
governs the interpretation of legislatively enacted stat-
utes.
19
A statute’s plain language provides “ ‘the most
reliable evidence of...intent....’”
20
“If the statutory
language is unambiguous,...‘[n]o further judicial con-
struction is required or permitted’ ” because we must
conclude that the electors “ ‘intended the meaning
clearly expressed.’ ”
21
A trial court’s findings of fact may not be set aside
unless they are clearly erroneous.
22
A ruling is clearly
erroneous “if the reviewing court is left with a definite
and firm conviction that the trial court made a mis-
take.”
23
15
See People v Thomas, 438 Mich 448, 452; 475 NW2d 288 (1991).
16
Kolanek, 491 Mich at 393.
17
See Const 1963, art 2, § 9 (“The people reserve to themselves the
power to propose laws and to enact and reject laws, called the initia-
tive....”).
18
Kolanek, 491 Mich at 405.
19
Klooster v City of Charlevoix, 488 Mich 289, 296; 795 NW2d 578
(2011), citing Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d
119 (1999).
20
Sun Valley Foods, 460 Mich at 236, quoting United States v Turkette,
452 US 576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981).
21
People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012), quoting Sun
Valley Foods, 460 Mich at 236 (alteration in original).
22
MCR 2.613(C); People v Dawson, 431 Mich 234, 258; 427 NW2d 886
(1988).
23
People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).
26 493 M
ICH
17 [Dec
III. ANALYSIS
A. THE MMMA
Michigan voters approved the MMMA in November
2008. As a result, the MMMA introduced into Michigan
law an exception to the Public Health Code’s prohibi-
tion on the use of controlled substances by permitting
the medical use of marijuana when carried out in
accordance with the MMMA’s provisions.
24
This Court
first interpreted the MMMA in Kolanek and empha-
sized that the MMMA exists only as an exception to,
and not a displacement of, the Public Health Code:
The MMMA does not create a general right for individu-
als to use and possess marijuana in Michigan. Possession,
manufacture, and delivery of marijuana remain punishable
offenses under Michigan law. Rather, the MMMA’s protec-
tions are limited to individuals suffering from serious or
debilitating medical conditions or symptoms, to the extent
that the individuals’ marijuana use “is carried out in
accordance with the provisions of [the MMMA].”
[
25
]
In contrast to some other states’ medical marijuana pro-
visions, the MMMA does not explicitly provide for collec-
tive growing operations such as defendant’s.
26
Neverthe-
less, defendant claims that his actions fall within the
immunity provision contained in § 4 of the MMMA or,
alternatively, within the affirmative-defense provision
contained in § 8.
24
MCL 333.26427(a).
25
Kolanek, 491 Mich at 394, quoting MCL 333.26427(a) (alteration in
original).
26
For instance, California specifically contemplates that “[q]ualified pa-
tients, persons with valid identification cards, and the designated primary
caregivers of qualified patients and persons with identifications cards” may
“associate within the State of California in order collectively or cooperatively
to cultivate marijuana for medical purposes....”CalHealth & Safety Code
11362.775. Colorado goes one step further and specifically allows medical
marijuana dispensaries to engage in common growing operations. Colo Rev
Stat 12-43.3-403(2).
2012] P
EOPLE V
B
YLSMA
27
In Kolanek, we established the relationship between
these two separate protections from prosecution for
offenses involving marijuana. Because “the plain lan-
guage of § 8 does not require compliance with the
requirements of § 4,” a defendant who is unable to
satisfy the requirements of § 4 may nevertheless assert
the § 8 affirmative defense.
27
Accordingly, we must
examine these provisions independently.
Sections 4(a) and 4(b) contain parallel immunity provi-
sions that apply, respectively, to registered qualifying
patients and to registered primary caregivers. Defendant
claims that § 4(b) entitles him to immunity as a registered
primary caregiver.
28
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
(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
27
Kolanek, 491 Mich at 401.
28
Defendant does not claim to be a registered qualifying patient.
Accordingly, he is not eligible for immunity under MCL 333.26424(a),
which applies only to “[a] qualifying patient who has been issued and
possesses a registry identification card....”
28 493 M
ICH
17 [Dec
(3) any incidental amount of seeds, stalks, and unusable
roots.
[
29
]
The plain language of § 4(b) limits the amount of mari-
juana that a registered primary caregiver can possess and
still be entitled to § 4 immunity. In particular, § 4(b)(2)
limits the number of marijuana plants that a registered
primary caregiver may possess to 12 plants for each
registered qualifying patient connected to the primary
caregiver through the MDCH’s registration process. Spe-
cifically, a caregiver may possess those plants only if the
registered qualifying patient “has specified that the pri-
mary caregiver will be allowed under state law to cultivate
marihuana for the qualifying patient....”
30
Section 4(a) applies to registered qualifying patients
and contains similar limitations on the possession of
marijuana plants: a registered qualifying patient may
possess up to “12 marihuana plants kept in an enclosed,
locked facility,” but only if “the qualifying patient has not
specified that a primary caregiver will be allowed under
state law to cultivate marihuana for the qualifying pa-
tient....”
31
Thus, the Court of Appeals correctly held that
only one of two people may possess a patient’s 12 mari-
juana plants for the purposes of immunity under §§ 4(a)
and 4(b): “either the registered qualifying patient himself
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 registered
primary caregiver, if the qualifying patient has specified
that a primary caregiver be allowed to cultivate his or her
marijuana plants.”
32
29
MCL 333.26424(b) (emphasis added).
30
MCL 333.26424(b)(2).
31
MCL 333.26424(a) (emphasis added).
32
Bylsma, 294 Mich App at 232.
2012] P
EOPLE V
B
YLSMA
29
Section 4(d) reiterates these limitations in articulat-
ing a presumption of “medical use”:
There shall be a presumption that a qualifying patient or
primary caregiver is engaged in the medical use of marihuana
in accordance with this act if the...primary caregiver:
(1) is in possession of a registry identification card; and
(2) is in possession of an amount of marihuana that does
not exceed the amount allowed under this act. The pre-
sumption may be rebutted by evidence that conduct related
to marihuana was not for the purpose of alleviating the
qualifying patient’s debilitating medical condition or symp-
toms associated with the debilitating medical condition, in
accordance with this act.
[
33
]
In this case, application of § 4 turns on the amount of
marijuana that defendant possessed. Sections 4(b)(2)
and 4(d) limit defendant to 12 plants for each of the two
patients with whom he is connected through the
MDCH’s registration process, a total of 24 plants.
Defendant claims that he is entitled to § 4 immunity
and that he possessed only the 24 plants that he is
allowed to possess under the MMMA. The prosecution
asserts that defendant possessed all the plants in the
warehouse space, thereby exceeding the limitations
established in § 4. In order to evaluate these claims, we
must determine what constitutes “possession” within
the meaning of the MMMA.
B. POSSESSION
Although possession of marijuana is one of nine
activities that constitute the “medical use” of mari-
juana under § 3(e) of the MMMA,
34
the MMMA does not
33
MCL 333.26424(d) (emphasis added).
34
Section 3(e), MCL 333.26423(e), defines “medical use” as “the
acquisition, possession, cultivation, manufacture, use, internal posses-
sion, delivery, transfer, or transportation of marihuana or paraphernalia
30 493 M
ICH
17 [Dec
itself define “possession.” When a statute does not
define a term at issue,
[a]ll words and phrases shall be construed and understood
according to the common and approved usage of the
language; but technical words and phrases, and such as
may have acquired a peculiar and appropriate meaning in
the law, shall be construed and understood according to
such peculiar and appropriate meaning.
[
35
]
Longstanding Michigan law has provided a specific
meaning regarding possession of controlled substances,
and we hold that the MMMA incorporates this settled
Michigan law regarding possession: a person possesses
marijuana when he exercises dominion and control over
it.
In People v Wolfe, this Court articulated basic prin-
ciples regarding the possession of controlled sub-
stances:
A person need not have actual physical possession of a
controlled substance to be guilty of possessing it. Posses-
sion may be either actual or constructive. People v Harper,
365 Mich 494, 506-507; 113 NW2d 808 (1962), cert den 371
US 930 (1962); see also People v Mumford, 60 Mich App
279, 282-283; 230 NW2d 395 (1975). Likewise, possession
may be found even when the defendant is not the owner of
recovered narcotics. Id. See also People v Germaine, 234
Mich 623, 627; 208 NW 705 (1926). Moreover, possession
may be joint, with more than one person actually or
constructively possessing a controlled substance. Id. See
also People v Williams, 188 Mich App 54, 57; 469 NW2d 4
(1991).
[
36
]
Furthermore, “a person’s presence, by itself, at a loca-
relating to the administration of marihuana to treat or alleviate a
registered qualifying patient’s debilitating medical condition or symp-
toms associated with the debilitating medical condition.”
35
MCL 8.3a.
36
People v Wolfe, 440 Mich 508, 519-520; 489 NW2d 748 (1992).
2012] P
EOPLE V
B
YLSMA
31
tion where drugs are found is insufficient to prove
constructive possession.”
37
Rather, the essential inquiry
into possession is whether there is “a sufficient nexus
between the defendant and the contraband,”
38
includ-
ing whether “ ‘the defendant exercised a dominion and
control over the substance.’ ”
39
In this case, the Court of
Appeals held that this traditional definition of posses-
sion applies to the MMMA, and we agree with this
holding.
Defendant claims that this Court should not apply
caselaw regarding possession of controlled substances
to MMMA cases because the possession of marijuana is
no longer illegal per se under state law. However, we
explained in Kolanek that “[t]he MMMA does not create
a general right for individuals to use and possess
marijuana in Michigan.”
40
Indeed, marijuana remains a
schedule 1 controlled substance under the Public
Health Code,
41
which defendant is charged with violat-
ing. The MMMA’s limited exceptions for the medical
use of marijuana do not provide a basis for this Court to
redefine what constitutes the possession of marijuana;
instead, these limited exceptions show that the drafters
and voters intended that the MMMA to exist within the
traditional framework regarding possession of mari-
juana and other controlled substances. Therefore, we
reaffirm the traditional definition of possession as it
relates to controlled substances and conclude that a
person possesses controlled substances when he has
dominion and control over them.
37
Id. at 520.
38
Id. at 521.
39
Id., quoting United States v Disla, 805 F2d 1340, 1350 (CA 9, 1986).
40
Kolanek, 491 Mich at 394
41
MCL 333.7212(1)(c).
32 493 M
ICH
17 [Dec
C. APPLICATION
In determining whether defendant possessed all the
marijuana in the warehouse space that he leased, we
must consider whether “a sufficient nexus” exists be-
tween the defendant and the marijuana, including
whether he exercised “ ‘dominion and control’ ” over
it.
42
The facts of this case leave no doubt that defendant
exercised dominion and control over all the marijuana
plants seized from the warehouse space that he leased.
The Court of Appeals explained:
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 distrib-
uted 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 circum-
stances, defendant clearly possessed all 88 marijuana
plants. He knew of the presence and character of the plants
and he exercised dominion and control over them.
[
43
]
We agree with the Court of Appeals’ conclusion that these
circumstances establish defendant’s possession of all the
seized marijuana plants. Defendant was actively engaged
in growing all the marijuana in the facility and used his
horticultural knowledge and expertise to oversee, care for,
and cultivate all the marijuana growing there. He had the
ability to remove any or all of the plants, given his
unimpeded access to the warehouse space.
As stated, § 4(b) allows defendant to possess up to 12
marijuana plants for each qualifying patient to whom
he is connected through the MDCH’s registration pro-
42
Wolfe, 440 Mich at 521, quoting Disla, 805 F2d at 1350.
43
Bylsma, 294 Mich App at 230. Whether police seized 86 or 88 plants
is wholly immaterial when § 4(b) of the MMMA allows defendant to
possess no more than 24 plants.
2012] P
EOPLE V
B
YLSMA
33
cess. For defendant, who was connected to two qualify-
ing patients through the MDCH’s registration process,
§ 4(b) permitted him to possess no more than 24 plants.
He clearly exceeded this amount by possessing all the
marijuana in the warehouse space.
Defendant’s possession of marijuana that purport-
edly belonged to registered patients with whom defen-
dant was not connected through the MDCH’s registra-
tion process further illustrates both why defendant is
not entitled to immunity under § 4 and why § 4 does not
contemplate the collective growing operation that de-
fendant undertook. When considered together, §§ 4(a)
and 4(b) only allow one of two people to possess a
patient’s 12 marijuana plants: “either the registered
qualifying patient himself 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 registered primary caregiver, if the
qualifying patient has specified that a primary car-
egiver be allowed to cultivate his or her marijuana
plants.”
44
Defendant admitted that most of the plants in
his warehouse space were for patients other than those
with whom he was connected through the MDCH’s
registration process. By growing marijuana for those
other patients, defendant possessed more plants than
he was permitted to possess under § 4 of the MMMA.
Nevertheless, defendant asserts that the definition of
“enclosed, locked facility” in § 3(c) of the MMMA allows
multiple patients and caregivers to combine their mari-
juana into a single enclosed, locked facility as long as
only registered qualifying patients and registered pri-
mary caregivers are allowed access to the enclosed,
44
Bylsma, 294 Mich App at 232.
34 493 M
ICH
17 [Dec
locked facility.
45
As stated, however, § 4 limits both the
amount of marijuana that any individual registered
qualifying patient or registered primary caregiver may
possess and who may possess any marijuana plant.
Thus, for a patient or caregiver to receive immunity
under § 4, the “enclosed, locked facility” housing mari-
juana plants must be such that it allows only one person
to possess the marijuana plants enclosed therein—
“either the registered qualifying patient himself 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 registered
primary caregiver, if the qualifying patient has specified
that a primary caregiver be allowed to cultivate his or
her marijuana plants.”
46
Defendant also claims that § 8 entitles him to dismissal
of the charges. While defendant’s motion to dismiss ex-
pressly reserved his right to raise a § 8 defense, defendant
has not yet formally done so and, moreover, the lower
courts’ subsequent rulings barred him from raising a
defense under § 8 of the MMMA. We reverse in part the
lower courts’ rulings that defendant is necessarily barred
even from raising a § 8 defense solely because he failed to
satisfy the elements of § 4 immunity. In making their
rulings, the lower courts did not have the benefit of this
Court’s decision in Kolanek, which held:
[T]o establish the elements of the affirmative defense in
§ 8, a defendant need not establish the elements of § 4. Any
defendant, regardless of registration status, who possesses
more than 2.5 ounces of usable marijuana or 12 plants not
kept in an enclosed, locked facility may satisfy the affirmative
45
Section 3(c) of the MMMA, MCL 333.26423(c), defines “enclosed,
locked facility” 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.”
46
Bylsma, 294 Mich App at 232.
2012] P
EOPLE V
B
YLSMA
35
defense under § 8. As long as the defendant can establish the
elements of the § 8 defense and none of the circumstances in
§ 7(b) [of the MMMA, MCL 333.26427(b)] exists, that defen-
dant is entitled to the dismissal of criminal charges.
[
47
]
Accordingly, pursuant to Kolanek, and contrary to the
lower courts’ rulings, defendant need not satisfy the
possession limits contained in § 4(b) in order to satisfy
the elements of the § 8 affirmative defense.
Both parties ask this Court to rule on the substantive
merits of defendant’s § 8 defense. However, in Kolanek,
we also stated that the MMMA requires a defendant to
follow a particular procedure in asserting the § 8 affir-
mative defense:
Section 8(b) provides that a person “may assert [this
defense] in a motion to dismiss, and the charges shall be
dismissed following an evidentiary hearing where the
person shows the elements listed in subsection (a).” [MCL
333.26428(b).] This scheme makes clear that the burden of
proof rests with the defendant, that the defendant “may”
move to dismiss the charges by asserting the defense in a
motion to dismiss, and that dismissal “shall” follow an
evidentiary hearing. This last requirement is significant
because it indicates that the § 8 defense cannot be asserted
for the first time at trial, but must be raised in a pretrial
motion for an evidentiary hearing.
[
48
]
In this case, defendant’s motion to dismiss only as-
serted a claim for § 4 immunity, and the subsequent
evidentiary hearing focused on the elements of § 4
immunity. Although defendant reserved the right to
assert the § 8 affirmative defense, he has not yet
asserted the defense in a motion to dismiss, as Kolanek
requires. Because defendant has not yet proceeded to
trial, he still has the opportunity to assert the defense in
47
Kolanek, 491 Mich at 403.
48
Id. at 410-411 (first alteration in original).
36 493 M
ICH
17 [Dec
a motion to dismiss. As a consequence, it would be
premature for this Court to decide whether he satisfies
the substantive elements of the § 8 defense.
IV. CONCLUSION
We affirm the judgment of the Court of Appeals in part,
reverse it in part, and remand this case to the Kent Circuit
Court for further proceedings. The Court of Appeals
correctly held that defendant is not entitled to immunity
under § 4(b) of the MMMA, MCL 333.26424(b). Section
4(b) allows a registered primary caregiver to possess up to
12 plants for each qualifying patient with whom he is
connected through the state’s registration process. A
person possesses a controlled substance when he has the
ability to exercise dominion and control over that con-
trolled substance, and the Court of Appeals correctly
determined that defendant exercised dominion and con-
trol over a quantity of marijuana plants in excess of that
allowed pursuant to § 4(b).
We reverse the judgment of the Court of Appeals to the
extent that it held, contrary to our decision in Kolanek,
that defendant is necessarily precluded from asserting an
affirmative defense pursuant to § 8 of the MMMA, MCL
333.26428, solely because he fails to satisfy the elements
of § 4 immunity. Rather, § 8 contains independent ele-
ments that do not turn on the requirements of § 4 immu-
nity. Because defendant has not yet asserted the § 8
affirmative defense in a motion to dismiss, as Kolanek
requires, it is premature for us to decide whether he is
entitled to the defense. Rather, we remand this case to the
Kent Circuit Court for further proceedings consistent
with this opinion and with Kolanek.
C
AVANAGH
,M
ARILYN
K
ELLY
,M
ARKMAN
,H
ATHAWAY
,
M
ARY
B
ETH
K
ELLY
, and Z
AHRA
, JJ., concurred with
Y
OUNG
, C.J.
2012] P
EOPLE V
B
YLSMA
37
PEOPLE v TRAKHTENBERG
Docket No. 143386. Argued October 10, 2012 (Calendar No. 2). Decided
December 21, 2012.
Jacob Trakhtenberg was convicted of three counts of second-degree
criminal sexual conduct after a bench trial in the Oakland Circuit
Court, Deborah G. Tyner, J. The charges stemmed from allegations
of sexual contact made by defendant’s then 8-year-old daughter.
The Court of Appeals, Z
AHRA
,P.J., and B
ANDSTRA
and O
WENS
,JJ.,
affirmed defendant’s convictions in an unpublished opinion per
curiam, issued March 27, 2007 (Docket No. 268416). The Supreme
Court denied defendant’s application for leave to appeal. 480 Mich
856 (2007). Defendant then moved for relief from the judgment
under subchapter 6.500 of the Michigan Court Rules, asserting
that he was entitled to a new trial because he was denied the
effective assistance of trial and appellate counsel and, alterna-
tively, that newly discovered evidence warranted a new trial. The
trial court, Daniel P. O’Brien, J., denied the motion. The Court of
Appeals denied defendant’s application for leave to appeal in an
unpublished order, entered March 20, 2009 (Docket No. 290336).
In lieu of granting leave to appeal, the Supreme Court retained
jurisdiction and remanded the case to the Court of Appeals for
consideration as on leave granted and ordered the Court of
Appeals to remand the case to the trial court to conduct an
evidentiary hearing in order to evaluate defendant’s claims. 485
Mich 1132 (2010). Meanwhile, defendant had also brought a
malpractice claim against his trial counsel in the Oakland Circuit
Court. The court, Shalina D. Kumar, J., granted summary dispo-
sition in favor of defendant’s trial counsel. The Court of Appeals,
M
URRAY
,P.J., and M
ARKEY
and B
ORRELLO
, JJ., affirmed that decision.
Trakhtenberg v McKelvey, unpublished opinion per curiam, issued
October 27, 2009 (Docket No. 285247). Defendant sought leave to
appeal in the Supreme Court, which ordered that the application
be held in abeyance pending resolution of the criminal case.
Trakhtenberg v McKelvey, 780 NW2d 828 (Mich, 2010). Following
the evidentiary hearing on remand in the criminal case, the trial
court, Daniel P. O’Brien, J., ruled that defense counsel had been
ineffective and that defendant was entitled to a new trial. The
Court of Appeals, D
ONOFRIO
,P.J., and C
AVANAGH
and S
TEPHENS
,JJ.,
38 493 M
ICH
38 [Dec
reversed in an unpublished opinion per curiam, issued May 19,
2011 (Docket No. 290336). The Court of Appeals reasoned, in part,
that collateral estoppel precluded it from reviewing the perfor-
mance of defendant’s trial counsel because in the malpractice case
the Court of Appeals had held that defendant’s trial counsel’s
performance fell within the “attorney judgment” rule. The Su-
preme Court granted defendant’s application for leave to appeal.
490 Mich 927 (2011).
In an opinion by Justice C
AVANAGH
, joined by Justices M
ARILYN
K
ELLY
,M
ARKMAN
, and M
ARY
B
ETH
K
ELLY
, the Supreme Court held:
Collateral estoppel may not be applied on the basis of a prior
civil judgment holding that defense counsel’s performance did not
amount to malpractice in order to preclude review of a criminal
defendant’s claim of ineffective assistance of counsel.
1. Generally, the proponent of the application of collateral
estoppel must show that (1) a question of fact essential to the
judgment was actually litigated and determined by a valid and
final judgment, (2) the same parties had a full and fair opportunity
to litigate the issue, and (3) there was mutuality of estoppel. In
determining whether the party opposing collateral estoppel had a
full and fair opportunity to adjudicate his or her claim, a court
must take into consideration the choice of forum and the incentive
to litigate. Cross-over estoppel occurs when the application of
collateral estoppel crosses over the line between civil and criminal
proceedings. Although some cases have suggested that collateral
estoppel may be applied when an issue adjudicated in a prior civil
proceeding is claimed to be precluded in a subsequent criminal
proceeding, those cases were distinguishable because, in this case,
it was the prosecution and not defendant that sought to apply the
doctrine. In this case, the Court of Appeals erred by applying
collateral estoppel because defendant did not have a full and fair
opportunity to litigate his claim in the malpractice proceeding.
Defendant’s interests when pursuing the malpractice claim dif-
fered from his interests in asserting his constitutional right to the
effective assistance of counsel. In the civil case, defendant sought
monetary gain, and in the criminal case he sought protection of his
liberty. Because he had a different and, most likely, stronger
incentive to litigate counsel’s errors in the criminal proceeding,
the prior malpractice case did not afford defendant a full and fair
opportunity to litigate his claim of ineffective assistance of coun-
sel.
2. Both the Michigan and United States Constitutions require
that a criminal defendant enjoy the assistance of counsel for his or
her defense. In order to obtain a new trial, a defendant must show
2012] P
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39
that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome would have been
different. In examining whether defense counsel’s performance
fell below an objective standard of reasonableness, a defendant
must overcome the strong presumption that counsel’s perfor-
mance was born from a sound trial strategy. But a court cannot
insulate review of counsel’s performance by calling it trial strategy.
The court must determine whether defense counsel made the
strategic choices after less than complete investigation, and any
choice is reasonable precisely to the extent that reasonable profes-
sional judgments support the limitations on investigation. In this
case, defense counsel failed to exercise reasonable professional
judgment when deciding to forgo particular investigations rel-
evant to the defense, including her failure to identify the factual
predicate of each of the five charged counts of criminal sexual
conduct, her failure to consult with key witnesses, and her failure
to sufficiently develop the defense presented at trial. Accordingly,
her representation fell below an objective standard of reasonable-
ness. Defendant was unfairly prejudiced by counsel’s deficient
performance. The key evidence against defendant was the com-
plainant’s testimony. Therefore, the reliability of defendant’s
convictions was undermined by defense counsel’s failure to intro-
duce impeachment evidence and evidence that corroborated defen-
dant’s testimony that defense counsel was unaware of because she
decided to forgo those investigations. Had the impeachment evi-
dence and the evidence that corroborated defendant’s testimony
been introduced, there was a reasonable probability that the result
of the trial would have been different.
Court of Appeals’ judgment reversed; case remanded to the
trial court for a new trial.
Chief Justice Y
OUNG
, joined by Justice Z
AHRA
, dissenting, agreed
that collateral estoppel did not bar review of defendant’s claims of
error, but disagreed with the majority’s analysis of that issue and
disagreed with the majority’s conclusion that defendant did not
receive effective assistance of counsel. Accordingly, he would have
affirmed the result reached by the Court of Appeals. Instead of
examining defendant’s interests in litigating his malpractice claim
as the majority did, Chief Justice Y
OUNG
would have considered the
elements required to apply collateral estoppel. In this case, the
first element necessary to apply collateral estoppel was not satis-
fied because defendant’s claim of ineffective assistance of counsel
was not actually litigated and determined by a valid and final
judgment in the malpractice action. A party asserting malpractice
40 493 M
ICH
38 [Dec
must establish that, but for the negligence, the outcome of the case
would have been favorable to the plaintiff. However, a criminal
defendant may be entitled to a new trial on the basis of ineffective
assistance of counsel even if the errors of counsel cannot be shown
by a preponderance of the evidence to have determined the
outcome. Because a legal malpractice action requires a higher
threshold of prejudice than a claim of ineffective assistance of
counsel, a defendant can establish ineffective assistance of counsel
even if he or she cannot establish legal malpractice. Nonetheless,
the result reached by the Court of Appeals should have been
affirmed because defendant failed to establish that counsel’s
performance was outside the wide range of professionally compe-
tent assistance leading to a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different. The lower courts did not err by determining
that defense counsel’s trial strategy was objectively reasonable,
and the Court of Appeals correctly reversed as an abuse of
discretion the trial court’s decision to grant defendant a new trial,
the sole basis for which was that counsel did not proffer a defense
focusing on the character of the complainant’s mother. Moreover,
even if counsel was deficient for failing to conduct particular
investigations, adequately impeach the complainant, or introduce
potentially corroborative testimony, defendant could not satisfy
the prejudice requirement for a claim of ineffective assistance of
counsel.
Justice H
ATHAWAY
did not participate because of a professional
relationship with a member of a law firm involved in the matter.
1. E
STOPPEL —
C
OLLATERAL
E
STOPPEL —
E
LEMENTS —
F
ULL AND
F
AIR
O
PPORTUNITY
TO
A
DJUDICATE THE
C
LAIM —
C
ROSS
-O
VER
E
STOPPEL —
M
ALPRACTICE —
I
NEFFECTIVE
A
SSISTANCE OF
C
OUNSEL
.
Generally, the proponent of the application of collateral estoppel
must show that (1) a question of fact essential to the judgment was
actually litigated and determined by a valid and final judgment, (2)
the same parties had a full and fair opportunity to litigate the
issue, and (3) there was mutuality of estoppel; in determining
whether the party opposing collateral estoppel had a full and fair
opportunity to adjudicate his or her claim, a court must take into
consideration the choice of forum and the incentive to litigate;
collateral estoppel may not be applied in a subsequent criminal
proceeding on the basis of a prior civil judgment holding that
defense counsel’s performance did not amount to malpractice in
order to preclude review of a criminal defendant’s claim of
ineffective assistance of counsel.
2012] P
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2. C
ONSTITUTIONAL
L
AW —
E
FFECTIVE
A
SSISTANCE OF
C
OUNSEL —
E
LEMENTS —
O
BJECTIVE
S
TANDARD OF
R
EASONABLENESS —
T
RIAL
S
TRATEGY —
L
IMITA-
TIONS ON
I
NVESTIGATION
.
Both the Michigan and United States Constitutions require that a
criminal defendant enjoy the assistance of counsel for his or her
defense; in order to obtain a new trial, a defendant must show that
(1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome would have been
different; in examining whether defense counsel’s performance fell
below an objective standard of reasonableness, a defendant must
overcome the strong presumption that counsel’s performance was
born from a sound trial strategy, but a court cannot insulate
review of counsel’s performance by calling it trial strategy; the
court must determine whether defense counsel made the strategic
choices after less than complete investigation, and any choice is
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation (US Const, Am
VI; Const 1963, art 1, § 20).
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.
Robyn B. Frankel for defendant.
C
AVANAGH
, J. This case requires us to determine
whether collateral estoppel may be applied to preclude
review of a criminal defendant’s claim of ineffective
assistance of counsel when a prior civil judgment held
that defense counsel’s performance did not amount to
malpractice. We hold that collateral estoppel may not be
applied in these circumstances because defendant did
not have a full and fair opportunity to litigate his
ineffective-assistance-of-counsel claim, contrary to the
requirements of the doctrine itself.
Given our conclusion that collateral estoppel is inap-
plicable, we must also determine whether defendant
42 493 M
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was deprived of his right to the effective assistance of
counsel under Strickland v Washington, 466 US 668;
104 S Ct 2052; 80 L Ed 2d 674 (1984). We hold that
defense counsel’s performance was constitutionally de-
ficient because she failed to exercise reasonable profes-
sional judgment when she decided to forgo any investi-
gation of the case before settling on a defense strategy.
That deficiency prejudiced defendant by undermining
the reliability of the outcome of his trial, which rested
solely on the credibility of the complainant and defen-
dant. Accordingly, we reverse the judgment of the Court
of Appeals and remand this case to the trial court for a
new trial.
I. FACTS AND PROCEEDINGS
Defendant was charged with five counts of second-
degree criminal sexual conduct (CSC-II) for allegedly
touching the genitals of his eight-year-old daughter and
forcing her to touch his genitals. During the bench trial,
the complainant testified that defendant touched her
three or four times (once or twice while she was in
defendant’s bed at night) and would lower her hand to
his genitals. Lilya Tetarly, the complainant’s mother
and defendant’s ex-wife, testified that in 2004 the
complainant developed yeast infections. On direct ex-
amination, Tetarly denied asking defendant to treat the
yeast infections with ointment and stated that the
complainant became upset when she had to go to
defendant’s home. Defense counsel did not cross-
examine Tetarly. As the only defense witness, defendant
testified that he never forced the complainant to touch
his genitals and that he touched the complainant’s
genitals six times to apply medication at Tetarly’s
insistence after a heated argument over whether it was
appropriate for him to apply the ointment. Defendant
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was convicted of three counts of CSC-II. Two counts
were based on evidence that defendant touched the
complainant and one count was based on evidence that
defendant forced her to touch his genitals. After the
parties’ closing arguments, the trial court commented
that “very little’s clear to me in this case, starting with
what the allegations are that go to each count.”
On direct appeal, defendant argued that defense
counsel was ineffective for failing to impeach Tetarly
with evidence of bias pertaining to their divorce four
years earlier. Defendant argued that Tetarly had at-
tempted to hit him with her car, which was supported
by a police report, and assaulted him while he was
driving, which resulted in Tetarly’s arrest on domestic
violence charges. The Court of Appeals denied defen-
dant’s motion for an evidentiary hearing pursuant to
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973),
1
and held that defense counsel was not ineffective for
failing to impeach Tetarly because the record lacked
evidence to show that she was still upset over the
divorce. People v Trakhtenberg, unpublished opinion
per curiam of the Court of Appeals, issued March 27,
2007 (Docket No. 268416). Defendant applied for leave
to appeal in this Court, which was denied. People v
Trakhtenberg, 480 Mich 856 (2007).
Defendant subsequently filed a legal malpractice
claim against defense counsel, which the trial court
dismissed upon defense counsel’s motion for summary
disposition. The Court of Appeals affirmed, holding that
defense counsel’s performance fell within the “attorney
1
The Court also denied defendant’s subsequent motion to hold the
appeal in abeyance to give defendant more time to verify additional
grounds for bias—namely, that Tetarly had previously made false allega-
tions that defendant’s prior wife sexually abused defendant’s son from
that marriage in order for defendant to gain an advantage in the then
pending custody dispute over defendant’s son, HT.
44 493 M
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judgment rule.” Trakhtenberg v McKelvy, unpublished
opinion per curiam of the Court of Appeals, issued
October 27, 2009 (Docket No. 285247).
2
See, also, Simko
v Blake, 448 Mich 648; 532 NW2d 842 (1995). Mean-
while, in his criminal case, defendant filed a motion for
relief from judgment under MCR 6.508(D)(3), claiming
that he was entitled to a new trial because he was
denied the effective assistance of trial and appellate
counsel and, alternatively, that newly discovered evi-
dence warranted a new trial. The trial court denied the
motion under MCR 6.508(D)(3)(b), and the Court of
Appeals denied defendant leave to appeal. People v
Trakhtenberg, unpublished order of the Court of Ap-
peals, entered March 20, 2009 (Docket No. 290336). In
lieu of granting leave to appeal, this Court retained
jurisdiction and remanded the case to the Court of
Appeals for consideration as on leave granted, and the
Court of Appeals was ordered to remand the case to the
trial court to conduct a Ginther hearing in order to
evaluate defendant’s claims. People v Trakhtenberg, 485
Mich 1132 (2010).
During the course of the Ginther hearing, volumi-
nous testimony was taken. Tetarly admitted that she
was dissatisfied with the divorce judgment and had
made negative comments about defendant in front of
the complainant. And, for the first time, Tetarly dis-
closed that before reporting the complainant’s allega-
tions of abuse to the authorities, she brought the
complainant to a youth pastor. Tetarly stated that she
then brought the complainant to CARE House, which
provides intervention and treatment services for child
victims of abuse, where Amy Allen, a CARE House
2
Defendant sought leave to appeal in this Court. We ordered that the
application be held in abeyance pending a decision in this criminal case.
Trakhtenberg v McKelvy, 780 NW2d 828 (Mich, 2010).
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employee, performed a forensic interview, during which
the complainant alleged the abuse. The responding
detective’s police report states that the detective asked
Tetarly to directly ask the complainant whether defen-
dant had ever touched her “private parts” with his
fingers. That questioning eventually led to the com-
plainant’s second formal allegation of abuse.
Allen, who was unaware that the complainant had
spoken to others about the abuse, testified that it is
important to know whether the child has spoken to
anyone else in order to conduct a proper forensic
interview because, as a result of repeated interviewing,
a child might start to mistakenly believe that something
happened to him or her. Additionally, Dr. Katherine
Okla, a clinical psychologist specializing in sexual
abuse, noted her concern regarding the complainant’s
knowledge of her mother’s hatred of defendant and
explained that Tetarly’s leading and suggestive ques-
tions and the repeated questioning of the complainant
(especially in a therapeutic rather than forensic setting)
could have tainted the child’s recollection of the events
surrounding the alleged abuse. Defendant testified that
he had requested that defense counsel consult with
numerous witnesses including Allen and HT, who was
defendant’s son.
Defense counsel testified that her defense theory was
two-fold: she would (1) impeach the complainant’s trial
testimony with an inconsistent statement regarding the
number of times defendant made her touch him and (2)
show that defendant lacked the requisite intent of
sexual gratification to be convicted of CSC-II.
3
Addition-
3
MCL 750.520a(q) defines “sexual contact,” in relevant part, as the
“intentional touching of the victim’s or actor’s intimate parts... if that
intentional touching can reasonably be construed as being for the purpose of
sexual arousal or gratification, [or] done for a sexual purpose....”
46 493 M
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ally, she advised defendant to waive his preliminary
examination, and she did not demand discovery, obtain
Allen’s notes, or interview any witnesses because she
felt that any further information was irrelevant to the
defense theories. Defense counsel testified that she was
unaware of the complainant’s continued therapy, her
feelings toward defendant, her testimony in the civil
trial that defendant applied medication to her vagina,
and her meeting with a youth pastor.
Following the hearing, the trial court ruled that
defense counsel was ineffective and defendant was
entitled to a new trial. The Court of Appeals reversed,
reasoning, in part, that collateral estoppel precluded
the Court from reviewing the performance of defense
counsel because in defendant’s legal malpractice case,
the Court had held that defense counsel’s performance
fell within the “attorney judgment rule.” The Court
further held that counsel was not ineffective on the
basis of the claims of error left for its review. People v
Trakhtenberg, unpublished opinion per curiam of the
Court of Appeals, issued May 19, 2011 (Docket No.
290336). Defendant sought leave to appeal in this
Court, which we granted. People v Trakhtenberg, 490
Mich 927 (2011).
II. STANDARD OF REVIEW
This Court reviews de novo the application of a legal
doctrine, including collateral estoppel. Estes v Titus,
481 Mich 573, 578-579; 751 NW2d 493 (2008). The
question whether defense counsel performed ineffec-
tively is a mixed question of law and fact; this Court
reviews for clear error the trial court’s findings of fact
and reviews de novo questions of constitutional law.
People v Armstrong, 490 Mich 281, 289; 806 NW2d 676
(2011).
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III. ANALYSIS
A. COLLATERAL ESTOPPEL
Generally, the proponent of the application of collat-
eral estoppel must show “that (1) a question of fact
essential to the judgment was actually litigated and
determined by a valid and final judgment, (2) the same
parties had a full and fair opportunity to litigate the
issue, and (3) there was mutuality of estoppel.” Estes,
481 Mich at 585.
4
When the application of collateral
estoppel “crosses over” the line between a criminal and
a civil proceeding, it has aptly been termed “cross-over
estoppel.”
5
Several Court of Appeals opinions have held
that a criminal defense attorney may rely on the doc-
trine of collateral estoppel in order to avoid malpractice
liability when a full and fair determination was made in
a previous criminal action that the same client had
received effective assistance of counsel. See, e.g., Bar-
row v Pritchard, 235 Mich App 478, 484-485; 597 NW2d
853 (1999). Yet we must hesitate to apply collateral
estoppel in the reverse situation—when the govern-
ment seeks to apply collateral estoppel to preclude a
criminal defendant’s claim of ineffective assistance of
counsel in light of a prior civil judgment that defense
counsel did not commit malpractice.
The prosecution argues that this Court approved the
application of collateral estoppel in the civil-to-criminal
context in People v Gates, 434 Mich 146; 452 NW2d 627
(1990). Gates stated that “[c]ases involving ‘cross-over
estoppel,’ where an issue adjudicated in a civil proceed-
4
While the dissent is critical of the majority’s analysis, we believe that
our analysis is analytically sound and well supported.
5
See Brenner, “Crossing-over:” The issue-preclusive effects of a
civil/criminal adjudication upon a proceeding of the opposite character,7
NIllULRev141(1987).
48 493 M
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ing is claimed to be precluded in a subsequent criminal
proceeding, or vice versa, are relatively recent and
rare.” Id. at 155. And further, the United States Su-
preme Court has stated that “the doctrine of collateral
estoppel is not made inapplicable by the fact that this is
a criminal case, whereas the prior proceedings were
civil in character.” Yates v United States, 354 US 298,
335; 77 S Ct 1064;1LEd2d1356 (1957), overruled on
other grounds by Burks v United States, 437 US 1; 98 S
Ct 2141; 57 L Ed 2d 1 (1978). It is unnecessary to
discuss the relevant holdings of these cases, however,
because the prosecution and the Court of Appeals have
ignored a fundamental aspect of this case that distin-
guishes it from Gates and Yates. In this case, defendant
is not the proponent of the application of collateral
estoppel; to the contrary, the prosecution asked the
Court to apply the doctrine to estop the Court’s full
review of defendant’s claim that he received ineffective
assistance of counsel.
6
In the present case, we must consider the goal of the
doctrine of collateral estoppel along with the elements
of the doctrine to determine whether the Court of
Appeals erred when it precluded review of many of
defendant’s allegations concerning the ways in which
defense counsel erred. The doctrine of collateral estop-
pel has compelling underpinnings because it “relieve[s]
6
Similarly, the Court of Appeals erred when it characterized the
application of collateral estoppel as “defensive.” In determining whether
defendant’s constitutional right to the effective assistance of counsel was
denied, there cannot be an “offense” and a “defense,” as the traditional
application of collateral estoppel presumes. The prosecution is not in a
position where it must somehow “defend” itself; rather, if we must fit this
case into the traditional framework of collateral estoppel, it is clear that
defendant is put on the defensive. It is true that, ultimately, defendant is
challenging his conviction and asking for a new trial, yet he does not do
so by attacking the prosecution. He is merely protecting his constitu-
tional right to an effective attorney.
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parties of the cost and vexation of multiple lawsuits,
conserve[s] judicial resources, and, by preventing incon-
sistent decisions, encourage[s] reliance on adjudica-
tion.” Allen v McCurry, 449 US 90, 94; 101 S Ct 411; 66
L Ed 2d 308 (1980), citing Montana v United States, 440
US 147, 153-154; 99 S Ct 970; 59 L Ed 2d 210 (1979).
Further, collateral estoppel “also promote[s] the comity
between state and federal courts that has been recog-
nized as a bulwark of the federal system.” Allen, 449 US
at 96, citing Younger v Harris, 401 US 37, 43-45; 91 S Ct
746; 27 L Ed 2d 669 (1971). That said, collateral
estoppel “must be applied so as to strike a balance
between the need to eliminate repetitious and needless
litigation and the interest in affording litigants a full
and fair adjudication of the issues involved in their
claims.” Storey v Meijer, Inc, 431 Mich 368, 372; 429
NW2d 169 (1988) (emphasis added). In determining
whether the party opposing collateral estoppel has had
a “full and fair” opportunity to adjudicate his or her
claim, a court must take into consideration the
choice of forum and incentive to litigate....[A]s so often
is the case, no one set of facts, no one collection of words or
phrases, will provide an automatic formula for proper
rulings on estoppel pleas. In the end, decision will neces-
sarily rest on the trial courts’ sense of justice and equity.
[Blonder-Tongue Laboratories, Inc v Univ of Illinois Foun-
dation, 402 US 313, 333-334; 91 S Ct 1434; 28 L Ed 2d 788
(1971).]
See, also, Storey, 431 Mich at 373 (stating that “[t]he
extent to which the doctrine is applied is also dependent
upon the nature of the forum in which the initial
determination was rendered”).
We hold that the Court of Appeals erred when it
applied collateral estoppel to preclude its review of
defendant’s ineffective-assistance-of-counsel claim be-
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cause defendant did not have a full and fair opportunity
to litigate his claim in the malpractice proceeding.
Considering the nature of the forum in which defen-
dant’s allegations concerning counsel’s errors were
initially rejected, it is clear that defendant’s interest
when pursuing his civil malpractice claim differed from
his interest in asserting his constitutional right to
effective counsel in the criminal proceeding. Indeed,
defendant sought monetary gain in the malpractice
case, whereas in his criminal case he seeks protection of
a constitutional right and his liberty. Accordingly, be-
cause defendant has a different and most likely stronger
incentive to litigate counsel’s errors in the criminal
proceeding, the prior civil litigation concerning coun-
sel’s alleged claims of error did not afford defendant a
full and fair opportunity to litigate his ineffective-
assistance-of-counsel claim.
Because we conclude that the Court of Appeals erred
when it applied collateral estoppel, which precluded a
full review of defense counsel’s alleged errors, we must
now decide the merits of defendant’s ineffective-
assistance-of-counsel claim on the basis of a full review
of the evidence revealed at the evidentiary hearing.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Both the Michigan and the United States Constitu-
tions require that a criminal defendant enjoy the assis-
tance of counsel for his or her defense. Const 1963, art
1, § 20; US Const, Am VI. In order to obtain a new trial,
a defendant must show that (1) counsel’s performance
fell below an objective standard of reasonableness and
(2) but for counsel’s deficient performance, there is a
reasonable probability that the outcome would have
been different. Armstrong, 490 Mich at 290; see, also,
People v Pickens, 446 Mich 298; 521 NW2d 797 (1994)
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(adopting the federal constitutional standard for an
ineffective-assistance-of-counsel claim as set forth in
Strickland).
1. DEFENSE COUNSEL’S PERFORMANCE
In examining whether defense counsel’s performance
fell below an objective standard of reasonableness, a
defendant must overcome the strong presumption that
counsel’s performance was born from a sound trial
strategy. Strickland, 466 US at 689. Yet a court cannot
insulate the review of counsel’s performance by calling
it trial strategy. Initially, a court must determine
whether the “strategic choices [were] made after less
than complete investigation,” and any choice is “rea-
sonable precisely to the extent that reasonable profes-
sional judgments support the limitations on investiga-
tion.” Id. at 690-691. Counsel always retains the “duty
to make reasonable investigations or to make a reason-
able decision that makes particular investigations un-
necessary.” Id. In this case, the trial court and the Court
of Appeals erred by failing to recognize that defense
counsel’s error was the failure to exercise reasonable
professional judgment when deciding not to conduct
any investigation of the case in the first instance.
7
Accordingly, no purported limitation on her investiga-
tion of the case can be justified as reasonable trial
7
Instead, the trial court framed defense counsel’s error as a decision to
pursue the “ ‘no sex gratification/denial’ defense and not the “ ‘sinister or
bad mom defense’ ” (referring to defense counsel’s failure to impeach
Tetarly). The Court of Appeals reversed the trial court’s ruling that
counsel was ineffective for failing to pursue the impeachment defense in
part because this decision was part of a reasonable trial strategy. The trial
court’s erroneous focus on whether these “defenses” were properly
pursued led the Court of Appeals to justify defense counsel’s decision to
pursue only one defense as a matter of trial tactics, which are not
reviewable in hindsight.
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strategy.
8
We hold that because defense counsel failed to
exercise reasonable professional judgment when decid-
ing to forgo particular investigations relevant to the
defense, her representation fell below an objective stan-
dard of reasonableness.
First, defense counsel failed to identify the factual
predicate of each of the five charged counts of CSC-II.
Although the charging documents lacked specific fac-
tual allegations, defense counsel advised defendant to
waive his preliminary examination and she failed to file
a motion for a bill of particulars. As a result, in this case
defense counsel was left without a competent under-
standing of the prosecution’s theories of guilt. In fact,
Jerome Sabbota, an expert in criminal trial practice and
defending cases involving allegations of criminal sexual
conduct, testified at defendant’s evidentiary hearing
that without either a preliminary examination or a bill
of particulars, there was no way to develop a defense in
this case.
Second, defense counsel failed to consult with key
witnesses who would have revealed weaknesses of the
prosecution’s case. Particularly, counsel failed to inter-
view Allen, despite the fact that the prosecution in-
8
Contrary to the dissent’s view, our conclusion in this case that defense
counsel’s performance was constitutionally deficient does not equate
with judging counsel’s strategy in hindsight. The dissent is correct that
Strickland counsels against a hindsight review of defense counsel’s
choices and that reviewing courts should “evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 US at 689. However,
the dissent misinterprets our characterization of defense counsel’s errors
in this case. We do not hold that counsel’s performance was objectively
unreasonable because her chosen strategy was unsuccessful or that
another strategy would have been more successful. Rather, we hold that
defense counsel may not use trial strategy to insulate trial decisions if
counsel cannot provide a reasonable basis for the chosen strategy,
particularly where, as here, the strategy is chosen before conducting any
reasonable investigation.
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cluded her on its witness list. Moreover, given the
exposure the complainant had to multiple interviews
and leading questions, a reasonable attorney would
have consulted an expert, such as Okla, to testify
regarding the propriety of how the complainant made
her allegations. Yet the only expert defense counsel
consulted was John Neumann, an expert in sex offender
evaluation.
9
Perhaps most importantly, defense counsel
stated at the Ginther hearing that she chose not to
consult any witnesses or obtain additional evidence
before she decided to pursue a defense strategy for
which she concluded that no further investigation was
necessary.
Lastly, defense counsel’s unreasonably inadequate
investigation contributed to her failure to sufficiently
develop the defense that was actually presented at trial.
This case turned solely on credibility—the ultimate
question at trial was whether the complainant’s allega-
tions of sexual abuse were truthful or, conversely, if her
allegations were the result of improper motivations and
interviewing techniques. Counsel’s failure to cross-
examine Tetarly and adequately impeach the complain-
ant was a result of counsel’s unreasonable decision to
forgo any investigation in the case. In fact, counsel
admitted that had she discovered the pertinent infor-
mation, she would have (1) impeached the complainant
with her additional inconsistent statements regarding
the number of times defendant allegedly forced her to
9
As the United States Court of Appeals for the Second Circuit has
explained, a defense attorney may be deemed ineffective, in part, for
failing to consult an expert when “counsel had neither the education nor
the experience necessary to evaluate the evidence and ‘make for himself
a reasonable, informed determination as to whether an expert should be
consulted or called to the stand....’”Eze v Senkowski, 321 F3d 110, 128
(CA 2, 2003), quoting Pavel v Hollins, 261 F3d 210, 225-226 (CA 2, 2001)
(emphasis added).
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touch him, (2) impeached the complainant and Tetarly
regarding the complainant’s impression that defendant
did not love her, and (3) consulted experts and Allen
regarding proper forensic-interviewing protocol. Also,
counsel failed to employ reasonable professional judg-
ment when deciding not to interview HT, who was also
listed on the prosecution’s witness list. HT was inti-
mately familiar with the relationship between defen-
dant and the complainant. Thus, an attorney exercising
reasonable professional judgment would have at least
spoken to HT in an attempt to determine if he could
provide testimonial evidence that might have corrobo-
rated defendant’s testimony.
Therefore, we hold that defense counsel’s perfor-
mance was constitutionally deficient because a sound
defense strategy cannot follow an incomplete investiga-
tion of the case when the decision to forgo further
investigation was not supported by reasonable profes-
sional judgment. We must now turn to the question
whether defendant was prejudiced by the deficiency.
10
2. PREJUDICE
11
In addition to proving that defense counsel’s repre-
sentation was constitutionally deficient, defendant
10
Additionally, to the extent that defendant cannot show that he was
entitled to a new trial in light of newly discovered evidence under People
v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003), because he or defense
counsel could, “using reasonable diligence, have discovered and produced
the evidence at trial,” defense counsel was further ineffective for not
having employed such reasonable diligence. (Citation and quotation
marks omitted.)
11
Although the trial court did not expressly find that defendant was
prejudiced by defense counsel’s errors and the Court of Appeals failed to
reach this issue, in the interests of judicial economy, we find it necessary
to consider this issue in the present appeal. See Peterman v Dep’t of
Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994), and MCR
7.316(A).
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must show that “but for counsel’s deficient perfor-
mance, a different result would have been reasonably
probable.” Armstrong, 490 Mich at 290, citing Strick-
land, 466 US at 694-696. A defendant may meet this
burden “even if the errors of counsel cannot be shown
by a preponderance of the evidence to have determined
the outcome.”
12
Strickland, 466 US at 694. And
“[w]here there is relatively little evidence to support a
guilty verdict to begin with (e.g., the uncorroborated
testimony of a single witness), the magnitude of errors
necessary for a finding of prejudice will be less than
where there is greater evidence of guilt.” Brown v
Smith, 551 F3d 424, 434-435 (CA 6, 2008), citing
Strickland, 466 US at 696.
In the present case, the key evidence that the pros-
ecution asserted against defendant was the complain-
ant’s testimony; therefore, the reliability of defendant’s
convictions was undermined by defense counsel’s fail-
ure to introduce impeachment evidence and evidence
that corroborated defendant’s testimony. The defense
strategy not to present the trier of fact with vital
evidence was the result of counsel’s failure to employ
12
The dissent admits in its discussion concerning whether collateral
estoppel was properly applied in this case that defendant’s burden to
show that he was prejudiced by defense counsel’s errors is less than the
preponderance-of-the-evidence standard. However, the dissent nonethe-
less appears to hold defendant to a higher burden by concluding that,
despite the fact that this case was decided solely on the credibility of
defendant and the complainant and the trier of fact was deprived of a
substantial amount of relevant information, there was not at least a
reasonable likelihood that the outcome of the trial would have been
different but for counsel’s deficient performance. Indeed, defendant’s
trial concluded in less than one hour, whereas it took the trial court more
than five days to collect testimony during defendant’s Ginther hearing.
Additionally, we note that our holding today does not resolve the question
of guilt or innocence. Rather, we hold only that defendant is entitled to a
new trial so that his guilt or innocence may be properly determined, as
required by the Michigan and United States Constitutions.
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reasonable professional judgment, which limited coun-
sel’s knowledge of the existence and importance of that
evidence.
Regarding the impeachment evidence, while it is true
that defense counsel cross-examined the complainant,
the omissions in that cross-examination, coupled with
defense counsel’s failure to cross-examine Tetarly, de-
prived the trier of fact of the necessary and available
evidence that discredited the complainant’s allegations.
Similarly, in Armstrong, 490 Mich at 292, this Court
held that, although the complainant was cross-
examined by defense counsel, “a reasonable probability
exists that this additional attack on the complainant’s
credibility [the introduction of cell phone records]
would have tipped the scales in favor of finding a
reasonable doubt about defendant’s guilt.”
13
Had coun-
sel exercised reasonable judgment when investigating
the case, she would have been able to impeach the
complainant’s testimony with the complainant’s addi-
tional inconsistent statements and with expert testi-
mony that discredited the propriety of the complain-
ant’s accusations. Further, defense counsel’s failure to
impeach Tetarly left the record completely devoid of any
motivation that Tetarly may have had to distort and
encourage the complainant’s allegations. Without this
evidence, “in a case that essentially boil[s] down to
whether the complainant’s allegations of [criminal
sexual conduct] [are] true,” we have no doubt that the
13
It is true that the additional impeachment evidence available to
the defense counsel in Armstrong was documentary evidence and, in
this case, the additional evidence was testimonial. But here, defense
counsel’s cross-examination of the complainant was, without justifi-
cation, substantially less discrediting than the defense counsel’s
cross-examination of the complainant in Armstrong. This increased
the need for the introduction of any available impeachment evidence,
even if it was testimonial.
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reliability of defendant’s convictions is adequately
called into question. Id. at 293.
Likewise, defense counsel’s failure to corroborate the
defense that defendant did not have the intent of sexual
gratification compounded the prejudicial effect of de-
fense counsel’s failure to impeach the complainant’s
testimony. She did not ask the complainant if defendant
had previously applied ointment to her for medical
purposes. If she had, presumably, the complainant
would have answered in the affirmative, given that she
testified accordingly in a later civil proceeding. Like-
wise, defense counsel did not consult with HT, who
likely would have offered testimony that corroborated
defendant’s testimony.
14
Instead, counsel relied solely
on defendant’s testimony that he did not possess the
requisite intent.
Therefore, if defense counsel had exercised reason-
able professional judgment, she would have discovered
and presented impeachment evidence and evidence that
corroborated defendant’s testimony, and there is a
reasonable probability that the result of the trial would
have been different. Thus, defendant has shown that he
was unfairly prejudiced by defense counsel’s errors.
IV. CONCLUSION
We conclude that collateral estoppel cannot be applied
to preclude the review of a criminal defendant’s claim of
ineffective assistance of counsel simply because a previous
civil proceeding determined that defense counsel had not
committed malpractice. Application of collateral estoppel
on that basis fails to satisfy the element of the doctrine
14
During the course of Tetarly’s corresponding civil case against
defendant, HT was asked if defendant “ever act[ed] in a sexual manner
to [the complainant].” HT responded, “No.”
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requiring that a defendant previously have had an oppor-
tunity to fully and fairly litigate his or her ineffective-
assistance-of-counsel claim.
Furthermore, defense counsel’s performance in this
case was constitutionally inadequate and rendered de-
fendant’s trial unfair and unreliable. Therefore, we
reverse the judgment of the Court of Appeals and
remand this case to the trial court for a new trial.
M
ARILYN
K
ELLY
,M
ARKMAN
, and M
ARY
B
ETH
K
ELLY
,JJ.,
concurred with C
AVANAGH
,J.
Y
OUNG
,C.J.(dissenting). I respectfully dissent from
the Court’s decision to grant defendant a new trial on
his motion for relief from judgment. While I agree with
the majority that collateral estoppel does not bar defen-
dant’s claims of error, I cannot adopt the majority’s
amorphous analysis on that issue and instead would
simply hold that the prosecution has not satisfied the
elements required to apply collateral estoppel against
defendant. Moreover, in applying Strickland v Washing-
ton to the facts of this case, I do not believe defendant is
entitled to relief because he has not shown that coun-
sel’s performance was “outside the wide range of pro-
fessionally competent assistance” leading to “a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.”
1
Thus, I would affirm the result reached by
the Court of Appeals.
I. COLLATERAL ESTOPPEL
The Court of Appeals determined that the collateral
estoppel doctrine barred substantive consideration of
1
Strickland v Washington, 466 US 668, 690, 694; 104 S Ct 2052; 80 L
Ed 2d 674 (1984).
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many of defendant’s ineffective assistance of counsel
claims.
2
While I agree with the majority that the Court
of Appeals erred by applying collateral estoppel to bar
many of defendant’s claims, I do not adopt the major-
ity’s analysis to reach this conclusion. Instead of exam-
ining defendant’s interests in litigating his legal mal-
practice and ineffective assistance of counsel claims, I
would consider the elements required to apply collateral
estoppel, which lead inexorably to the conclusion that
defendant is not precluded from alleging ineffective
assistance of counsel in a motion for relief from judg-
ment. Accordingly, I would decide the issue on this basis
alone.
In Monat v State Farm Insurance Co, this Court
articulated the elements of collateral estoppel:
Generally, for collateral estoppel to apply three elements
must be satisfied: (1) “a question of fact essential to the
judgment must have been actually litigated and deter-
mined by a valid and final judgment”; (2) “the same parties
must have had a full [and fair] opportunity to litigate the
issue”; and (3) “there must be mutuality of estoppel.”
[
3
]
2
The Court of Appeals first concluded that the circuit court erred by
granting defendant a new trial because the circuit court’s analysis was
complete as a matter of law once it concluded that his counsel’s trial
strategy was reasonable. Nevertheless, it went on to examine potential
alternative bases for affirming the circuit court’s decision, and it ended
up rejecting many of defendant’s ineffective assistance of counsel claims
on the basis of collateral estoppel. Because it was sufficient to resolve
defendant’s appeal on the basis of its conclusion that trial counsel’s
strategy was reasonable, the Court of Appeals’ decision to apply collateral
estoppel was not essential to its holding.
3
Monat v State Farm Ins Co, 469 Mich 679, 682-684; 677 NW2d 843
(2004), quoting Storey v Meijer, Inc, 431 Mich 368, 373 n 3; 429 NW2d 169
(1988) (alteration in original). Monat also held that the third element,
mutuality of estoppel, is unnecessary when the party asserting estoppel
claims that the opposing party is bound by a previous adverse ruling:
“There is no compelling reason, however, for requiring that the party
asserting the plea of res judicata must have been a party, or in privity
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In this case, the first element of collateral estoppel is
not satisfied because defendant’s ineffective assistance
of counsel claim was not “actually litigated and deter-
mined by a valid and final judgment” in his legal
malpractice action. A party asserting legal malpractice
“must establish that, but for the negligence, the out-
come of the case would have been favorable to the
plaintiff.”
4
However, Strickland specifically indicates
that a criminal defendant may be entitled to a new trial
on the basis of ineffective assistance of counsel “even if
the errors of counsel cannot be shown by a preponder-
ance of the evidence to have determined the outcome.”
5
Because a legal malpractice action requires a higher
threshold of prejudice than an ineffective assistance of
counsel claim, a defendant can establish ineffective
assistance of counsel even if he cannot establish legal
malpractice. As a result, the Court of Appeals erred by
concluding that defendant’s ineffective assistance of
counsel claim was “actually litigated and determined by
a valid and final judgment,” and we need not even
consider defendant’s interests in undertaking his legal
malpractice and ineffective assistance of counsel claims
as the majority does.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Nevertheless, when examining defendant’s substan-
tive claims, I do not believe defendant is entitled to a
with a party, to the earlier litigation.” Monat, 469 Mich at 689 (quotation
marks and citation omitted). Accordingly, because the prosecution seeks
to apply collateral estoppel against defendant, Monat does not require
mutuality of estoppel and the fact that the prosecutor was not a party in
defendant’s legal malpractice claim does not itself bar application of
collateral estoppel.
4
Radtke v Miller, Canfield, Paddock & Stone, 453 Mich 413, 424; 551
NW2d 698 (1996).
5
Strickland, 466 US at 694.
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new trial on the basis of his motion for relief from
judgment.
6
The Sixth Amendment of the United States
Constitution, incorporated to the states through the
Fourteenth Amendment,
7
guarantees a criminal defen-
dant “the right...tohave the Assistance of Counsel for
his defence.”
8
Strickland requires a defendant to “iden-
tify the acts or omissions of counsel that are...outside
the wide range of professionally competent assistance.”
9
This review of counsel’s performance is “highly defer-
ential,”
10
must proceed under “a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance,” and must consider
whether the challenged action (or failure to act)
“ ‘might be considered sound trial strategy.’ ”
11
Only
when a criminal defendant has shown counsel’s perfor-
mance to be objectively unreasonable can we consider
the effect of counsel’s performance: a criminal defen-
dant is only entitled to a new trial if he can show that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
6
Because defendant is seeking relief pursuant to subchapter 6.500 of
the Michigan Court Rules, we review for an abuse of discretion the circuit
court’s decision to grant this relief. See People v Osaghae (On Reconsid-
eration), 460 Mich 529, 534; 596 NW2d 911 (1999). However, we review
de novo any underlying questions of constitutional law. People v LeBlanc,
465 Mich 575, 579; 640 NW2d 246 (2002).
7
Powell v Alabama, 287 US 45; 53 S Ct 55; 77 L Ed 158 (1932).
8
US Const, Am VI. The Michigan Constitution also provides a right to
the effective assistance of counsel, see Const 1963, art 1, § 20, although it
“does not afford greater protection than federal precedent with regard to
a defendant’s right to counsel when it involves a claim of ineffective
assistance of counsel,” People v Pickens, 446 Mich 298, 302; 521 NW2d
797 (1994).
9
Strickland, 466 US at 690.
10
Id. at 689.
11
Id., quoting Michel v Louisiana, 350 US 91, 101; 76 S Ct 158; 100 L
Ed 83 (1955).
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would have been different.”
12
Strickland also provides
that “counsel has a duty to make reasonable investiga-
tions or to make a reasonable decision that makes
particular investigations unnecessary.”
13
The majority claims that counsel was ineffective
because she did not conduct a preliminary examination
or file for a bill of particulars to determine the nature of
the charges against defendant. Counsel testified that
she did not conduct a preliminary examination because
she did not want to preserve the testimony of certain
unfavorable witnesses. Further, while the charging
documents lacked specific factual allegations beyond
the offenses charged, counsel testified at defendant’s
Ginther
14
hearing that she had police and Family Inde-
pendence Agency reports from which she could deter-
mine the factual allegations supporting the charges
against defendant. Counsel also testified that she be-
lieved the imprecision in the charging documents would
confuse the trier of fact and redound to defendant’s
benefit. The majority fails to consider that the decision
to forgo a preliminary examination or bill of particulars
can itself be a reasonable trial strategy under the
circumstances of this case, when counsel had informa-
tion regarding the nature of the charges from docu-
ments in her possession.
That in hindsight a strategy was not completely
successful does not render it unreasonable and does
not render counsel’s assistance ineffective. Strick-
land itself implores reviewing courts to undertake
“every effort...toeliminate the distorting effects of
hindsight, to reconstruct the circumstances of coun-
sel’s challenged conduct, and to evaluate the conduct
12
Strickland, 466 US at 694.
13
Id. at 691.
14
See People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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from counsel’s perspective at the time.”
15
In this case,
when looking to what strategy counsel developed or
could have developed at the time she was preparing
for trial, we must consider that any strategy must
account for defendant’s admissions that he touched
his daughter’s genitals at least seven times—six
times, he claims, to administer ointment, and once to
determine the extent of the pain that his daughter
complained of. As a result of these admissions, trial
counsel could not prepare the defense that none of the
touchings occurred. Rather, counsel had to argue that
the times that defendant applied the ointment were
not for a sexual purpose. Defendant vehemently
denied that he ever touched the complainant’s hand
to his penis, and trial counsel’s strategy with regard
to that issue was to impeach the complainant’s cred-
ibility and explain that defendant put the complain-
ant’s hand to his stomach to show her an old-world
remedy to relieve stomach pain.
Both the circuit court and the Court of Appeals
determined that this trial strategy was objectively rea-
sonable, and they did not err by doing so. Nevertheless,
the circuit court held that counsel was ineffective for
failing to present the alternative defense that the com-
plainant’s mother, Liliya Tetarly, fabricated the allega-
tions. While this defense is not necessarily inconsistent
with counsel’s chosen defense, counsel provided a rea-
sonable explanation at the Ginther hearing regarding
why she did not choose to present it: she was afraid that
basing a defense on Tetarly’s relationship with defen-
dant would open the door to information that would
reflect badly on defendant, including details about the
15
Strickland, 466 US at 689; see also People v LaVearn, 448 Mich 207,
216; 528 NW2d 721 (1995), quoting Strickland, 466 US at 689.
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acrimonious divorce between defendant and Tetarly.
16
The Court of Appeals correctly reversed as an abuse of
discretion the circuit court’s decision to grant defen-
dant a new trial, the sole basis for which was that
counsel did not proffer a defense focusing on Tetarly’s
character.
Furthermore, the circuit court abused its discretion
when it granted defendant a new trial without inquir-
ing into the potential prejudice resulting from counsel’s
actions because Strickland requires a defendant to
show that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.”
17
Even if coun-
sel was deficient for failing to interview CARE House
employees or consult with an expert about forensic
interviewing techniques, the unrebutted evidence indi-
cates that the complainant’s initial revelation was not a
product of any questioning; rather, both the complain-
ant and her mother have testified that the complainant
made the revelation spontaneously. While defendant’s
expert at the Ginther hearing, Dr. Katherine Okla,
testified that she had concerns about the interview
techniques that led to the complainant’s subsequent
disclosures involving defendant’s touching of her geni-
tals, defendant admitted that he had touched the com-
plainant’s genitals. Thus, I cannot conclude that there
is a reasonably likely probability of a different result
16
The majority explains that counsel failed to investigate allegations of
sexual abuse that Tetarly made in the past against defendant’s other
ex-wife. However, the record below only indicates that she reported what
defendant’s son (a toddler at the time) said and did. While the ex-wife was
not convicted of abuse, it is not apparent from the record that these
allegations are false—or intentionally false—claims of abuse that would
implicate Tetarly’s general character for truthfulness.
17
Strickland, 466 US at 694.
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occurring but for counsel’s failure to interview CARE
House employees or consult with an expert.
Moreover, while the majority argues that counsel did
not adequately impeach the complainant, counsel’s
cross-examination of the complainant at trial high-
lighted inconsistencies regarding the number of times
that the complainant claimed that defendant touched
her hand to his genitals. Indeed, at one point, the circuit
court cut counsel off and acknowledged that the com-
plainant could not explain the inconsistencies between
her testimony and a police report.
18
The circuit court
determined that three of the five charged counts of
second-degree criminal sexual conduct arose out of
allegations that defendant touched the complainant’s
hand to his genitals, and it convicted defendant of one
of those three counts. I cannot conclude that further
cross-examination of complainant emphasizing any in-
consistencies in the complainant’s previous statements
would have resulted in a reasonably likely chance of
acquittal on the single remaining count relating to the
touching of defendant’s genitals given the circuit
court’s statement that the complainant’s vivid descrip-
tion of defendant’s genitals was “not something that a
child would fabricate.”
The circuit court also found defendant’s testimony
about administering the medication not to be credible,
“mainly because of the major inconsistency in regard to
the rebuttal witness’s testimony that he was never
asked to apply the ointment” and because the complain-
ant’s “yeast infections did not occur around the time in
18
While the majority puts much stock in potential expert testimony to
impeach the complainant’s testimony, the same experts might also have
bolstered her credibility by helping to explain the inconsistencies that
defense counsel sought to highlight. For instance, CARE House employee
Amy Allen testified at defendant’s civil trial that it is not unusual for a
sexual abuse victim to give conflicting reports about the abuse.
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which allegedly these incidents occurred....”Nothing
in any postconviction testimony undermines Tetarly’s
claim that the complainant did not suffer from yeast
infections at the time of the allegations, and defendant
has not offered any proof to undermine that claim. As a
result, defendant has not shown a reasonably probable
chance of a different outcome at trial on the charges
involving defendant’s touching of the complainant’s
genitals. Tetarly always maintained that she did not ask
defendant to apply any medication, and she reiterated
at the Ginther hearing that she never provided defen-
dant with medication to place on the complainant’s
genital area. Indeed, this testimony that defendant was
not allowed to apply ointment is rendered more credible
by Tetarly’s testimony that defendant poured cologne
on complainant’s genital area in February 2004. This
testimony went unrebutted during both the bench trial
and the Ginther hearing. Moreover, the complainant’s
testimony at a subsequent civil proceeding corroborates
Tetarly’s testimony that only Tetarly would apply oint-
ment for the complainant’s yeast infections and that
defendant once poured cologne on the complainant’s
genital area.
19
Defendant also claims that testimony by his son, HT,
would have corroborated defendant’s claim that Tetarly
insisted that defendant apply the ointment to the
complainant’s genital area and that, after several min-
utes of heated argument, he yielded to her request.
Nevertheless, defendant offers no proof on this claim
beyond his bald assertion that HT was actually present
for the conversation that defendant described. In fact,
HT was deposed during the civil litigation against
19
Although the majority observes that the complainant testified oth-
erwise at the civil proceeding, the complainant quickly retracted that
statement and reiterated that only her mother would apply the ointment.
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defendant, but he did not testify regarding this alleged
conversation. Instead, HT testified that defendant often
yelled at the complainant to return to her room when,
at night, she would appear at his bedroom. This is
consistent, however, with the complainant’s testimony
at the civil trial that sometimes defendant would yell at
her to return to her room, although she also testified
that sometimes he would tell her to join him in his bed.
The lack of an offer of proof regarding whether HT
could corroborate defendant’s testimony about the oint-
ment sharply contrasts with the situation resulting in a
new trial in People v Armstrong,
20
in which the defen-
dant offered documentary proof that contradicted spe-
cific testimony by the complainant at trial. Accordingly,
I cannot say that this potential corroborative testimony
is sufficiently concrete to satisfy Strickland’s prejudice
requirement.
21
III. CONCLUSION
For all these reasons, I would affirm the Court of
Appeals’ ruling that defendant is not entitled to a new
trial, although I would vacate its conclusion that collat-
eral estoppel bars substantive consideration of defen-
dant’s ineffective assistance of counsel claims. Defen-
dant is not entitled to a new trial pursuant to his
20
People v Armstrong, 490 Mich 281; 806 NW2d 676 (2011).
21
In addition to his ineffective assistance of counsel claims, defendant
also claimed that newly discovered evidence requires a new trial. The
lower courts correctly rejected defendant’s argument. In particular, the
Court of Appeals explained that most of defendant’s claimed newly
discovered evidence could have been discovered at the time of trial. In
analyzing the evidence that actually constituted newly discovered
evidence—the results of defendant’s polygraph examination and the
complainant’s subsequent writings—the Court of Appeals correctly de-
termined that a different result is not probable upon retrial. See People v
Cress, 468 Mich 678, 692; 664 NW2d 174 (2003).
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motion for relief from judgment because he has not
satisfied the elements of Strickland—that counsel’s
performance was “outside the wide range of profession-
ally competent assistance” leading to “a reasonable
probability that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have been
different.”
22
Z
AHRA
, J., concurred with Y
OUNG
, C.J.
H
ATHAWAY
, J., did not participate because of a profes-
sional relationship with a member of a law firm in-
volved in the matter.
22
Strickland, 466 US at 690, 694.
2012] P
EOPLE V
T
RAKHTENBERG
69
D
ISSENTING
O
PINION BY
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OUNG
, C.J.
In re CERTIFIED QUESTION FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
(MATTISON v SOCIAL SECURITY COMMISSIONER)
Docket No. 144385. Argued November 15, 2012. Decided December 21,
2012.
Pamela Mattison, on behalf of her twin children, brought an action
in the United States District Court for the Western District of
Michigan against the Social Security Commissioner, seeking social
security survivors’ benefits for the children after the Social Secu-
rity Administration denied her application for benefits and she
was unable to obtain relief through administrative appeals. The
twins were conceived by in vitro fertilization after their father,
Jeffery Mattison, had died. The parties stipulated that the deter-
minative issue was whether plaintiff’s twins could inherit from
Jeffery under Michigan intestacy law as his children. The district
court entered an order approving a magistrate’s recommendation
to ask the Michigan Supreme Court to resolve the question. In
accordance with MCR 7.305(B), the district court certified the
following question to the Supreme Court:
Whether M.M. and M.M. [plaintiff’s twins], conceived
after the death of Jeffery Mattison via artificial insemi-
nation using his sperm, can inherit from Jeffery Matti-
son as his children under Michigan intestacy law.
The Supreme Court ordered and heard oral argument on whether
to answer the certified question. 493 Mich 853 (2012).
In an opinion by Justice M
ARILYN
K
ELLY
, joined by Justices
M
ARKMAN
,H
ATHAWAY
,M
ARY
B
ETH
K
ELLY
, and Z
AHRA
, the Supreme
Court held:
Children who are born after the death of a parent and who were
not in gestation at the time of the parent’s death may not inherit
from that parent under Michigan intestacy law.
1. The Social Security Act authorizes disbursement of survi-
vors’ benefits for children who were dependent on a deceased
worker before his or her death. To be eligible, an applicant must
demonstrate that he or she (1) is the child of the deceased wage
70 493 M
ICH
70 [Dec
earner and (2) was dependent on that person at the time of that
person’s death. Under 42 USC 416(h)(2)(A), in determining
whether an applicant is the child of a deceased individual, the
Social Security Commissioner must apply the law that would be
applied in determining the devolution of intestate personal prop-
erty by the courts of the state in which the insured individual was
domiciled at the time of his or her death. In this case, Jeffery was
domiciled in Michigan when he died, so Michigan’s intestacy law is
controlling.
2. Under the relevant Michigan statutory provisions, there are
two groups of people relevant to this case who could have acquired
intestate inheritance rights: (1) descendants alive at the moment of
the decedent’s death who lived more than 120 hours immediately
following the decedent’s death and (2) descendants in gestation at the
time of the decedent’s death who lived 120 hours after birth. Because
plaintiff’s eggs were not fertilized and the embryos not transferred
until after Jeffery’s death, plaintiff’s twins could not inherit from
Jeffery by intestate succession under Michigan law. Plaintiff’s twins
were not in gestation at Jeffery’s death, so no inheritance rights
vested in them at that time pursuant to MCL 700.2108, and because
the twins were not living at the time of his death, they had no
inheritance rights as his heirs under MCL 700.2104.
3. MCL 700.2114(1)(a) creates a presumption that a child is
the natural issue of both spouses if born or conceived during the
marriage. Included within that presumption are children con-
ceived by a married woman with the consent of her husband
following the use of assisted reproductive technology. The statute,
however, does not allow the twins to inherit from Jeffery because
the twins were not conceived or born during plaintiff and Jeffery’s
marriage given that the marriage legally terminated upon Jef-
fery’s death. Because nothing in the relevant statutory provisions
contemplates intestate succession rights for plaintiff’s twins, they
did not survive Jeffery as his heirs in the eyes of the law.
Certified question answered in the negative; case returned to
the district court for further proceedings.
Justice M
ARILYN
K
ELLY
, joined by Justice C
AVANAGH
, concurring,
stated that although the Supreme Court’s decision was accurate and
required by the law, it was lamentable. The facts established that
Jeffery had intended that any children conceived by in vitro fertili-
zation using his sperm be entitled to the same rights as naturally
conceived children, without regard to when they were conceived.
Given the increasing prevalence of assisted reproductive technology,
the situation was likely to reoccur. The Legislature is capable of
2012] In re C
ERTIFIED
Q
UESTION
71
providing for after-conceived children to inherit from a parent by
intestate succession and should specifically address the issue.
Chief Justice Y
OUNG
, dissenting, would have declined to answer
the certified question because the Michigan Supreme Court lacks
the constitutional authority to issue advisory opinions other than
as described in 1963 Const, art 3, § 8. While this position did not
garner majority support, certified questions should be accepted
and answered sparingly and only when the Michigan legal issue is
both unclear and pivotal to the federal case that prompted the
request for the certified question. There is nothing remotely
unclear or debatable regarding the ability of after-born children to
take as heirs under Michigan’s intestacy laws—the children must
be “in gestation” under MCL 700.2108 at the time of the dece-
dent’s death. Therefore, the district court should have been easily
able to determine for itself the answer to its certified question
without the assistance of the Supreme Court.
P
ARENT AND
C
HILD —
D
ECEASED
P
ARENTS —
I
NTESTATE
I
NHERITANCE —
A
FTER
-
B
ORN
C
HILDREN —
A
SSISTED
R
EPRODUCTIVE
T
ECHNOLOGY
.
Children who are born after the death of a parent and who were not
in gestation at the time of the parent’s death may not inherit from
that parent under Michigan intestacy law (MCL 700.1101 et seq.).
Victor L. Bland for Pamela Mattison.
Patrick A. Miles, Jr., United States Attorney, and
Helen L. Gilbert and Ryan D. Cobb, Assistant United
States Attorneys, for the Social Security Commissioner.
M
ARILYN
K
ELLY
, J. Plaintiff, Pamela Mattison, gave
birth to twins who were conceived by artificial insemina-
tion after their father, Jeffery Mattison, had died. She
sought social security survivors’ benefits for the children
based on Jeffery’s earnings. The Social Security Adminis-
tration denied her application, and an administrative law
judge affirmed that decision. Plaintiff then filed an action
in the United States District Court for the Western
District of Michigan challenging the decision. That court
has asked us to rule on the determinative issue, which is
whether the children can inherit from Jeffery under
72 493 M
ICH
70 [Dec
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Michigan intestacy law. Only if they can inherit would
they be entitled to social security survivors’ benefits.
The district court certified the question to this Court
in accordance with MCR 7.305(B) in these words:
Whether M.M. and M.M. [plaintiff’s twins], conceived
after the death of Jeffery Mattison via artificial insemina-
tion using his sperm, can inherit from Jeffery Mattison as
his children under Michigan intestacy law.
Having heard oral argument, we grant the district
court’s request to answer the question. We hold that,
under Michigan intestacy law, plaintiff’s children cannot
inherit from Jeffery. We return the matter to the district
court for further proceedings as that court deems appro-
priate.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff and Jeffery Mattison were married in 1995.
In 1997, plaintiff became pregnant with the aid of
artificial insemination and gave birth to a daughter.
Plaintiff and Jeffery wanted more children but were
unable to conceive naturally because of Jeffery’s medi-
cal conditions, which included lupus, diabetes, high
blood pressure, and kidney failure.
Because chemotherapy treatment for lupus would
damage Jeffery’s sperm, he interrupted his chemo-
therapy treatment and deposited his semen into a
sperm bank, where it was frozen and stored. Soon after
the birth of his daughter, Jeffery executed a general
durable power of attorney that appointed plaintiff as his
attorney-in-fact. Included among the powers given to
her was the authority to “take any and all action
necessary pertaining to any sperm or embryos [Jeffery]
may have stored including their implantation or termi-
nation.” In October 2000, plaintiff and Jeffery began an
in vitro fertilization program in which plaintiff received
2012] In re C
ERTIFIED
Q
UESTION
73
O
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daily hormone injections. These were necessary to allow
her eggs to be harvested.
Jeffery died unexpectedly on January 18, 2001, in
Michigan. Plaintiff continued the in vitro fertilization
program after his death and underwent egg retrieval on
January 28, 2001. Those eggs were inseminated with
Jeffery’s sperm and transplanted into plaintiff on Janu-
ary 30, 2001. As a result of the transplantation process,
plaintiff gave birth to twins on October 8, 2001.
On October 23, 2001, plaintiff filed an application for
social security survivors’ benefits based on Jeffery’s
earnings records on behalf of her twins. The Social
Security Administration denied the application and
later denied reconsideration. Plaintiff then requested a
hearing on the matter. The presiding administrative
law judge decided that plaintiff’s twins were not en-
titled to social security survivors’ benefits because they
could not inherit from Jeffery under Michigan intestacy
law. The Social Security Administration Appeals Coun-
cil denied plaintiff’s request for review of the adminis-
trative law judge’s decision.
In August 2005, plaintiff filed suit in the United States
District Court for the Western District of Michigan, chal-
lenging the denial of benefits. The parties stipulated that
the determinative issue is whether plaintiff’s twins can
inherit from Jeffery under Michigan intestacy law as his
children. The district court entered an order approving a
magistrate’s recommendation to ask this Court to resolve
the question. For reasons unknown, the question was not
filed in this Court until nearly five years later.
We granted oral argument on whether to answer the
question certified to us.
1
1
In re Certified Question from the United States Dist Court for the
Western Dist of Mich, 493 Mich 853 (2012).
74 493 M
ICH
70 [Dec
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II. ANALYSIS
A. LEGAL BACKGROUND
The Social Security Act authorizes disbursement of
survivors’ benefits for children who were dependent on a
deceased worker before his or her death.
2
As the United
States Supreme Court has noted, the purpose of providing
survivors’ benefits is to protect children from a loss of
support resulting from the death of a parent.
3
However,
not all children of a deceased parent are eligible for these
benefits. To be eligible, an applicant must demonstrate
that he or she (1) is the “child” of the deceased wage
earner
4
and (2) was dependent on that person at the time
of that person’s death.
5
Whether an applicant is the child of a deceased wage
earner for purposes of the Social Security Act is gov-
erned by 42 USC 416(h)(2)(A), which provides:
In determining whether an applicant is the child or
parent of a fully or currently insured individual for pur-
poses of this subchapter [42 USC 401 through 434], the
Commissioner of Social Security shall apply such law as
would be applied in determining the devolution of intestate
personal property by the courts of the State in which such
insured individual is domiciled at the time such applicant
files application or, if such insured individual is dead, by
the courts of the State in which he was domiciled at the time
of his death ....[Emphasis added.]
Thus, because Jeffery was domiciled in Michigan when
he died, the issue to be resolved is whether our state
intestacy law permits the twins to inherit from Jeffery.
2
See generally 42 USC 402(d).
3
Mathews v Lucas, 427 US 495, 507; 96 S Ct 2755; 49 L Ed 2d 651
(1976).
4
42 USC 402(d)(1) and (2).
5
42 USC 402(d)(1)(C)(ii).
2012] In re C
ERTIFIED
Q
UESTION
75
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The United States Supreme Court recently spoke on
this subject in the case of Astrue v Capato.
6
The respon-
dent’s husband had died 18 months before she gave birth
to twins conceived through in vitro fertilization using the
decedent’s frozen sperm. The respondent applied for so-
cial security survivors’ benefits on their behalf. When the
Social Security Administration denied her application, she
brought an action in the courts to review the decision.
The trial court found that the respondent’s deceased
husband was domiciled in Florida at his death. Under
Florida law, children conceived after a parent’s death
cannot inherit from that parent through intestate succes-
sion and thus cannot receive social security survivors’
benefits as children of that parent. The United States
Court of Appeals for the Third Circuit reversed that
decision. It applied the Social Security Act and opined that
the undisputed biological children of an insured and his
widow qualify for survivors’ benefits without regard to
state intestacy law.
7
But the United States Supreme Court
reversed the judgment of the Third Circuit. It held that
the question whether posthumously conceived children
qualify for social security survivors’ benefits must be
determined under state intestacy law.
8
Michigan law has long established that the rights to
intestate inheritance vest at the time of a decedent’s
death.
9
They are governed by statutory provisions
6
Astrue v Capato, 566 US ___; 132 S Ct 2021; 182 L Ed 2d 887 (2012).
7
Capato v Social Security Comm’r, 631 F3d 626, 630 (CA 3, 2011).
8
Astrue, 566 US at ___; 132 S Ct at 2031-2033.
9
In re Adolphson Estate, 403 Mich 590, 593; 271 NW2d 511 (1978)
(“Determinations of heirs are to be governed by statutes in effect at the time
of death....”); In re Dempster’s Estate, 247 Mich 459, 462; 226 NW 243
(1929), quoting In re Pivonka’s Estate, 202 Iowa 855; 211 NW 246 (1926)
(“ ‘The estate of the insured’ came into being as the estate of a deceased
person...instantly upon the death of such deceased person. The heirs of a
decedent are...tobedetermined by ascertaining upon whom the law casts
the estate immediately upon the death of the ancestor.”).
76 493 M
ICH
70 [Dec
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found in article II, part 1 of the Estates and Protected
Individuals Code (EPIC).
10
Several EPIC provisions bear on whether plaintiff’s
twins can inherit from Jeffery. The first, MCL
700.2101(1), provides that “[a]ny part of a decedent’s
estate not effectively disposed of by will passes by
intestate succession to the decedent’s heirs as pre-
scribed in this act....”Next, MCL 700.2103 provides
that “[a]ny part of the intestate estate that does not
pass to the decedent’s surviving spouse...passes...to
[certain]... individuals who survive the decedent[.]”
MCL 700.1107(j) defines “survive” as meaning that “an
individual neither predeceases an event, including the
death of another individual, nor is considered to prede-
cease an event under [MCL 700.2104 or MCL
700.2702].”
11
Likewise, MCL 700.2106(3)(b) defines “surviving de-
scendant” as “a descendant who neither predeceased
the decedent nor is considered to have predeceased the
decedent under [MCL 700.2104].” MCL 700.2104
states, “An individual who fails to survive the decedent
by 120 hours is considered to have predeceased the
decedent for purposes of... intestate succession, and
the decedent’s heirs are determined accordingly.”
Hence, an individual must be alive when the decedent
dies and live more than 120 hours afterward to inherit
from the decedent’s estate under the laws of intestate
succession.
10
MCL 700.2101 et seq.
11
Random House Webster’s College Dictionary (2001) similarly defines
“survive” as, among other things, “1. to remain alive, as after the death
of another or the occurrence of some event; continue to live....4. to
continue to live or exist after the death, cessation, or occurrence of.”
Thus, to survive the death of another, one must be living at the time of
that person’s death.
2012] In re C
ERTIFIED
Q
UESTION
77
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Also relevant is MCL 700.2108 which states, “An
individual in gestation at a particular time is treated as
living at that time if the individual lives 120 hours or
more after birth.” Finally, MCL 700.2114(1)(a) pro-
vides, in pertinent part:
If a child is born or conceived during a marriage, both
spouses are presumed to be the natural parents of the
child for purposes of intestate succession. A child con-
ceived by a married woman with the consent of her
husband following utilization of assisted reproductive
technology is considered as their child for purposes of
intestate succession.
On the basis of these provisions, there are two
groups of people relevant to this case that may
acquire intestate inheritance rights: (1) descendants
alive at the moment of the decedent’s death who live
more than 120 hours immediately following the dece-
dent’s death and (2) descendants in gestation at the
time of the decedent’s death who live 120 hours after
birth.
B. APPLICATION
Considering these statutes, plaintiff’s twins cannot
inherit from Jeffery by intestate succession. The
record shows that plaintiff’s eggs were not insemi-
nated with Jeffery’s sperm and implanted until Janu-
ary 30, 2001, which was 12 days after Jeffery died.
Because plaintiff’s twins were not in gestation at
Jeffery’s death, no inheritance rights vested in them
at that time pursuant to MCL 700.2108. Moreover,
because the twins were not living at the time of his
death, they had no inheritance rights as heirs pursu-
ant to MCL 700.2104.
Nor does MCL 700.2114(1)(a) allow the twins to
inherit from Jeffery. That statute indicates that, for
78 493 M
ICH
70 [Dec
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purposes of intestate succession, a child is presumed to
be the natural issue of both spouses if born or conceived
during the marriage. It includes in that presumption
children conceived by a married woman with the con-
sent of her husband following the use of assisted
reproductive technology. Applying that provision here,
the twins were neither conceived nor born during
plaintiff and Jeffery’s marriage because “[m]arriage is a
status that legally terminates...upon the death of a
spouse....”
12
Accordingly, the twins are not Jeffery’s
children for purposes of the state laws of intestate
succession and, therefore, they cannot inherit from
him.
13
In sum, nothing in EPIC or in other relevant statu-
tory provisions contemplates intestate succession rights
for plaintiff’s twins. Because they were conceived and
born after Jeffery’s death, they did not survive him as
his heirs in the eyes of the law. Therefore, we answer
the certified question in the negative.
III. CONCLUSION
We hold that under Michigan intestacy law, plaintiff’s
twins, who were conceived after the death of Jeffery
Mattison through artificial insemination using his
sperm, cannot inherit from Jeffery as his children. We
answer the certified question in the negative and return
the case to the district court for such further proceed-
ings as that court deems appropriate.
M
ARKMAN
,H
ATHAWAY
,M
ARY
B
ETH
K
ELLY
, and Z
AHRA
,
JJ., concurred with M
ARILYN
K
ELLY
,J.
12
Byington v Byington, 224 Mich App 103, 109; 568 NW2d 141 (1997).
13
Although it is not relevant to our determination in this case, we note
that Jeffery died without a will.
2012] In re C
ERTIFIED
Q
UESTION
79
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M
ARILYN
K
ELLY
,J.(concurring). I write separately to
express my view that although the Court’s decision in
this matter is accurate and required by the law, it is
lamentable.
It is undisputed that the twins are Jeffery Mattison’s
biological children in that his sperm were used to
inseminate plaintiff’s eggs. Yet Michigan intestacy law
prevents these children from inheriting from their
father and, as a consequence, from receiving social
security survivors’ benefits. This is because our Legis-
lature has not made provision for children conceived by
assisted reproductive technology after a parent’s death
to inherit from the parent by intestate succession. This
situation will likely reoccur.
It is not known whether the Legislature has ever
considered the problem presented here. If it had, it
would have been confronted with the fact that gestation
by assisted reproductive technology can occur long after
the death of one parent. If the estate of the deceased
parent had to remain open while the widow or widower
contemplated the use of assisted reproductive technol-
ogy, timely probating of the estate could be frustrated.
1
Standing in contrast to that consideration is the fact
that one goal of the Estates and Protected Individuals
Code (EPIC)
2
is “[t]o discover and make effective a
decedent’s intent in distribution of the decedent’s prop-
erty.”
3
Two facts in this case relate to this goal: (1) the
twins are undisputedly Jeffery’s children and (2) Jef-
fery executed a power of attorney appointing plaintiff as
his attorney-in-fact with the power to “take any and all
action necessary pertaining to any sperm or embryos
1
See MCL 700.1201(c).
2
MCL 700.1101 et seq.
3
MCL 700.1201(b).
80 493 M
ICH
70 [Dec
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ONCURRING
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ARILYN
K
ELLY
,J.
[he] may have stored including their implantation or
termination.” Jeffery intended that any children con-
ceived by in vitro fertilization using his sperm be
entitled to the same rights as naturally conceived
children, without regard to when they were conceived.
It is not the role of this Court to fashion a legal
remedy allowing after-conceived children to inherit
from a deceased parent by intestate succession. But
the Legislature is capable of providing for it. For
instance, the Legislature could provide for a limited
period after a person’s death during which his or her
spouse could arrange for a child to be conceived by
assisted reproductive technology. It could provide
that a child conceived within that period would be
entitled to inherit from the deceased parent by intes-
tate succession. Alternatively, the Legislature could
mandate that the conception occur within a reason-
able time after a spouse’s death in order for the child
to be eligible to inherit.
4
Some state legislatures have already grappled with
the issue, while others have not, as summarized by this
chart that also identifies the source of the law in each
state:
5
4
See, e.g., Carpenter, A chip off the old iceblock: How cryopreservation
has changed estate law, why attempts to address the issue have fallen
short, and how to fix it, 21 CornellJL&PubPolicy 347, 380 (2011)
(explaining that some states have enacted legislation that requires “(1)
the decedent, in writing, [to] authorize[] the surviving spouse to use the
genetic material, and (2) the child [to be] born within two years after the
decedent’s death”).
5
Id. at 403-404. See also Lorio, Conceiving the inconceivable: Legal
recognition of the posthumously conceived child, 34 American College of
Trust & Estate Counsel L J 154, 156-162 (2008). After Professor
Benjamin Carpenter’s article was published in 2011, the Nebraska
Supreme Court held that Nebraska’s statutes exclude posthumously
conceived children from inheriting by intestate succession. See Amen v
Astrue, 284 Neb 691; 822 NW2d 419 (2012).
2012] In re C
ERTIFIED
Q
UESTION
81
C
ONCURRING
O
PINION BY
M
ARILYN
K
ELLY
,J.
T
ABLE
1: A
PPROACHES TO
P
OSTHUMOUSLY
C
ONCEIVED
C
HILDREN FOR
P
ROBATE
P
URPOSES BY
J
URISDICTION
__________________________________________________
Source
[6]
Includes Excludes Unclear Jurisdiction
__________________________________________________
1946 MPC 4 Indiana, Maryland, Ohio,
Pennsylvania
1969 UPC 3 Maine, Nebraska,
Tennessee
1988 USCACA 1 Virginia
1990 UPC 8 Alaska, Arizona,
Hawaii, Michigan, Montana,
Vermont, West Virginia,
Wisconsin
2000 UPA 7 Alabama, Delaware,
New Mexico, Texas, Utah,
Washington, Wyoming
2008 UPC 2 Colorado, North Dakota
Other statute 4 6 12 Includes: California,
Florida, Iowa, Louisiana
Excludes: Georgia, Idaho,
Minnesota, South Carolina,
South Dakota, New York
Unclear: Connecticut,
District of Columbia, Illinois,
Kansas, Missouri,
Oklahoma, Kentucky,
North Carolina, Oregon,
Rhode Island, Mississippi,
Nevada
Caselaw 2 2 Includes: Massachusetts
(Woodward);
[7]
New Jersey (Kolacy)
[8]
Excludes: Arkansas
(Finley);
[9]
New Hampshire
(Khabbaz)
[10]
__________________________________________________
Total 8 9 34
__________________________________________________
It is incumbent on the Legislature to keep our laws
abreast of our times. This is especially true given the
6
“MPC” stands for Model Probate Code. “UPC” stands for Uniform
Probate Code. “USCACA” stands for Uniform Status of Children of
Assisted Conception Act. “UPA” stands for Uniform Parentage Act.
7
Woodward v Social Security Comm’r, 435 Mass 536; 760 NE2d 257
(2002).
8
In re Kolacy Estate, 332 NJ Super 593; 753 A2d 1257 (2000).
9
Finley v Astrue, 372 Ark 103; 270 SW3d 849 (2008).
10
Khabbaz v Social Security Admin Comm’r, 155 NH 798; 930 A2d
1180 (2007).
82 493 M
ICH
70 [Dec
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ARILYN
K
ELLY
,J.
“growing and complex area of nontraditional family
life” and the increasing prevalence of assisted reproduc-
tive technology.
11
For these reasons, I urge our Legislature to specifi-
cally address the issue presented in this case in the near
future.
C
AVANAGH
, J., concurred with M
ARILYN
K
ELLY
,J.
Y
OUNG
,C.J.(dissenting). While I agree with the
majority’s analysis of our state’s intestacy laws, I re-
spectfully dissent and would decline to answer the
certified question. I do so for two reasons.
First, I continue to believe that this Court lacks the
constitutional authority to issue advisory opinions
1
other than as described in article 3, § 8 of Michigan’s
1963 Constitution.
2
My position regarding the Court’s
constitutional authority did not prevail, and I accept
that the Court has determined otherwise.
3
However, my
constitutional reservation counsels that this Court
11
Messmer, Assisted reproductive technology: A lawyer’s guide to
emerging law and science, 3 J Health & Biomed L 203, 204 (2007).
1
See In re Certified Question from the United States Dist Court for the
Eastern Dist of Mich (Wayne Co v Philip Morris, Inc), 622 NW2d 518
(Mich, 2001) (Y
OUNG
, J., concurring); In re Certified Questions from the
United States Court of Appeals for the Sixth Circuit, 472 Mich 1225 (2005)
(Y
OUNG
, J., concurring); In re Certified Question (Waeschle v Oakland Co
Med Examiner), 485 Mich 1116, 1117 (2010) (Y
OUNG
, J., dissenting).
2
Const 1963, art 3, § 8 grants this Court limited authority to issue
advisory opinions: “Either house of the legislature or the governor may
request the opinion of the Supreme Court on important questions of law
upon solemn occasions as to the constitutionality of legislation after it
has been enacted into law but before its effective date.”
3
In contrast to the narrow scope of authority described in Const 1963,
art 3, § 8, MCR 7.305(B) authorizes this Court to answer certified
questions from “a federal court, [foreign] state appellate court, or tribal
court.” I believe that MCR 7.305(B) exceeds this Court’s judicial power
and is unconstitutional.
2012] In re C
ERTIFIED
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UESTION
83
D
ISSENTING
O
PINION BY
Y
OUNG
, C.J.
should accept and answer certified questions from the
federal courts sparingly and only when the Michigan
legal issue is a debatable one and pivotal to the federal
case that prompted the request for the certified ques-
tion. It is this prudential concern that I now address.
I concede that the question whether the children at
issue are “heirs” of their deceased father under Michi-
gan intestacy law is determinative to the federal case.
4
Under federal law, the children are entitled to social
security survivors’ benefits if the children can take as
heirs from their father under Michigan intestacy law,
MCL 700.2101 et seq.
5
The children’s entitlement to
take as heirs is provided by MCL 700.2103, under which
it must be shown that the children are both their
father’s descendants
6
and that they survived their
father.
7
However, as the majority opinion conclusively
establishes, the question whether the children may be
considered to have been alive at the time of their
father’s death is not debatable under our intestacy
laws—a point plaintiff’s counsel conceded at oral argu-
4
Although the question is determinative, neither the federal court nor
the plaintiff felt much urgency because the certified question was not
filed with this Court for nearly five years after the federal court ordered
that the question be certified.
5
See 42 USC 416(h)(2)(A).
6
Whether the children are their father’s descendants has not been a
point of dispute in this litigation. MCL 700.2114 describes various ways
in which “[t]he parent and child relationship” may be established in
order to show that a claimant is a descendant of a decedent. However,
merely showing that a claimant is a descendant under MCL 700.2114 is
insufficient to establish an entitlement to take as an heir under Michi-
gan’s laws of intestate succession. Rather, the plain language of MCL
700.2103 also requires that the descendant “survive the decedent[.]”
7
MCL 700.1107(j) defines “survive” to mean that “an individual
neither predeceases an event, including the death of another individual,
nor is considered to predecease an event under [MCL 700.2104 or MCL
700.2702].” Thus the children are deemed to have survived their father if
they did not die before, i.e., did not predecease, the death of their father.
84 493 M
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ment. The only way that the children may be deemed to
have survived their father is if they were “in gestation”
at the time of their father’s death.
8
Thus, the only way
plaintiff could prevail is if this Court failed to give the
word “gestation” its plain and ordinary meaning. In-
deed, plaintiff’s counsel urged that these children could
be deemed “in gestation” by construing gestation as a
“process” that included hormone therapy administered
to the mother before the father’s death as well as in
vitro fertilization and embryo transfer that occurred
after the father’s death. This, of course, is no more than
a call for construction by eisegesis and would require an
entirely apocryphal interpretation of a common term:
gestation.
I believe that no serious debate regarding the plain
language of the relevant laws exists and that no reason-
able construction of our laws would permit the children
to take as heirs of their deceased father under our
intestacy provisions.
9
Indeed, both the Social Security
8
MCL 700.2108, concerning afterborn heirs, provides in full as follows:
“An individual in gestation at a particular time is treated as living at that
time if the individual lives 120 hours or more after birth.”
9
Contrary to the assertions of the concurrence, it cannot be said that
“[i]t is not known whether the Legislature has ever considered the
problem presented here.” Ante at 80. For more than 130 years, Michi-
gan’s law regarding the intestate inheritance rights of afterborn children
remained substantively unchanged, simply providing that “[p]osthumous
children are considered as living at the death of their parents.” 1846 RS,
ch 67, § 13; 1857 CL 2824; 1871 CL 4321; How Stat 5784; 1897 CL 9076;
1915 CL 11807; 1929 CL 13452. See also 1939 PA 288, ch II, § 85; 1948 CL
702.85; 1970 CL 702.85. If that historical statutory language had re-
mained unaltered, the Mattison children would be entitled to inherit as
heirs because they are the “posthumous children” of their natural father,
Jeffery Mattison.
However, beginning with 1978 PA 642, the Legislature amended the
law, providing in former MCL 700.109(2) that “[h]eirs of the decedent
conceived before his death but born thereafter shall inherit as if they had
been born in the lifetime of the decedent.” (Emphasis added.) With the
2012] In re C
ERTIFIED
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UESTION
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, C.J.
Administration and the administrative law judge who
reviewed the case applied the common meaning of
gestation and denied survivor’s benefits to the children
because, as the Social Security Administration phrased
it, the children “were not in gestation at the time of Mr.
Mattison[’s] death.” That being the case, the federal
court should have been easily able to determine for
itself the very answer to its certified question that the
majority has provided. As such, this would appear to be
the textbook example of the kind of certified question
that this Court ought to have exercised its discretion
and declined to answer.
For these reasons, I respectfully dissent and would
decline to answer the certified question.
enactment of the Estates and Protected Individuals Code (EPIC), 1998
PA 386, MCL 700.1101 et seq., the law was amended to reflect the current
language, requiring that a child be “in gestation” at the time of a
decedent’s death in order to be treated as living at that time. Thus, the
Legislature has twice amended the law to unambiguously reflect that an
afterborn child may take as an heir under our intestate succession
provisions provided that the child is in utero at the time of a decedent’s
death.
Moreover, the enactment of MCL 700.2114(1)(a) affirmatively repu-
diates any claim that the Legislature failed to consider the implications of
advanced reproductive technology on Michigan’s law of intestate succes-
sion. MCL 700.2114(1)(a) states that the necessary “parent and child
relationship” may be established when a “child [is] conceived by a
married woman with the consent of her husband following utilization of
assisted reproductive technology....”
While the concurrence believes that the Legislature’s failure to allow
after-conceived children to inherit under our law of intestate succession is
lamentable, such a policy choice is perfectly consistent with the Legislature’s
stated “purposes and policies” underlying the enactment of EPIC, which
include “promot[ing] a speedy and efficient system for liquidating a dece-
dent’s estate and making distribution to the decedent’s successors.” MCL
700.1201(c). Because frozen human reproductive material remains viable for
many years, providing an open-ended period of entitlement for after-
conceived children to take as heirs would prevent the closure of an intestate
decedent’s estate for an indefinite period of time.
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PEOPLE v MINCH
Docket No. 144631. Argued October 25, 2012. Decided December 21, 2012.
Kurtis R. Minch pleaded guilty in the Muskegon Circuit Court to
charges of possessing a short-barreled shotgun, MCL 750.224b,
and possessing a firearm during the commission of a felony, MCL
750.227b. The court, Timothy G. Hicks, J., granted defendant’s
motion to have numerous other firearms, which were not contra-
band but had been lawfully seized during a police raid of his home,
turned over to defendant’s mother, who had a durable power of
attorney to attend to defendant’s affairs while he was in prison.
The prosecution appealed by leave granted. The Court of Appeals,
H
OEKSTRA
,P.J., and K. F. K
ELLY
and B
ECKERING
, JJ., affirmed,
holding that denying defendant’s designee the right to take
possession of the weapons would deprive defendant of his property
without due process of law. 295 Mich App 92 (2011). The prosecu-
tion applied for leave to appeal. The Supreme Court ordered and
heard oral argument on whether to grant the application or take
other peremptory action. 491 Mich 931 (2012).
In an opinion per curiam signed by Chief Justice Y
OUNG
and
Justices M
ARKMAN
,M
ARY
B
ETH
K
ELLY
, and Z
AHRA
, the Supreme
Court held:
Michigan’s felon-in-possession statute, MCL 750.224f, prevents
a police department from delivering lawfully seized noncontra-
band firearms to the designated agent of a convicted felon.
However, the statute does not prevent a court from appointing a
successor bailee to maintain possession of a felon’s weapons during
his or her period of legal incapacity.
1. Under MCL 750.224f(2), persons convicted of specified felo-
nies may not possess, use, transport, sell, purchase, carry, ship,
receive, or distribute a firearm in this state until certain conditions
have been met. However, the statute does not sever a felon’s
ownership interest in his or her firearms. Accordingly, in this case
the police department became a constructive bailee of the noncon-
traband firearms. Defendant could not directly possess his non-
contraband firearms under the statute. Nor could defendant
constructively possess the firearms. The test for constructive
possession is whether the totality of the circumstances indicates a
2012] P
EOPLE V
M
INCH
87
sufficient nexus between the defendant and the contraband. Were
defendant to designate an agent to possess the firearms on his
behalf and were the agent to do so, defendant would be in violation
of the statute because a sufficient nexus would remain between
defendant and the firearms. However, it would be lawful for
another third party, including defendant’s mother, to assume
possession of the firearms as bailee. Unlike an agent, a bailee by
definition remains free from the felon’s control. Because nothing
prevents a person from serving as both an agent of and a bailee for
someone, one person could serve as bailee of defendant’s firearms
and as defendant’s agent for purposes of managing his other
property.
2. When analyzing a due process claim, courts first ask
whether there exists a liberty or property interest of which a
person has been deprived and, if so, whether the procedures
followed by the state were constitutionally sufficient. In this case,
the Court of Appeals erred when it concluded that the police
department’s continued possession of defendant’s firearms as
bailee violated defendant’s right to due process. With regard to his
possessory interest in the firearms, defendant received all the
process to which he was due when he pleaded guilty of the
underlying felonies. The Court of Appeals’ decision in Banks v
Detroit Police Dep’t, 183 Mich App 175 (1990), which held to the
contrary, was overruled.
3. In its ultimate disposition of the firearms, the circuit court
must use precise language so as not to authorize a violation of
MCL 750.224f. The circuit court may order the police department
to turn the firearms over to an appointed successor bailee as long
as the order is clear that the nature of the relationship between
defendant the successor is that of a bailment and that defendant
must have no control over or access to the firearms. Defendant’s
mother may possess the firearms as long as she does so as a bailee
and not as defendant’s agent. The successor bailee may not engage
in any actions that would destroy defendant’s ownership rights in
the firearms, such as selling them. If no successor bailee is willing
to hold the firearms under the conditions the circuit court out-
lines, the police department may retain possession as constructive
bailee until defendant is lawfully entitled to possess them.
Judgment of the Court of Appeals reversed; circuit court order
requiring that the firearms be turned over to defendant’s mother
vacated; case remanded to the circuit court for entry of an order
clarifying the disposition of the firearms.
Justices C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
concurred in
the result only.
88 493 M
ICH
87 [Dec
1. C
RIMINAL
L
AW —
W
EAPONS —
F
ELONS IN
P
OSSESSION OF
F
IREARMS —
R
ETURN OF
N
ONCONTRABAND
S
EIZED
F
IREARMS —
S
UCCESSOR
B
AILEES
.
Under MCL 750.224f(2), the felon-in-possession statute, persons
convicted of specified felonies may not possess, use, transport, sell,
purchase, carry, ship, receive, or distribute a firearm in this state
until certain conditions have been met; however, the statute does
not sever a felon’s ownership interest in his or her firearms; when
a police department lawfully seizes noncontraband firearms be-
longing to a felon, the police department becomes a constructive
bailee of the firearms; the felon-in-possession statute prevents the
police department from delivering those firearms to the designated
agent of the convicted felon, but the statute does not prevent a
court from appointing a successor bailee to maintain possession of
the felon’s weapons during his or her period of legal incapacity.
2. C
RIMINAL
L
AW —
W
EAPONS —
F
ELONS IN
P
OSSESSION OF
F
IREARMS —
D
EPRIVA-
TION OF
P
OSSESSORY
I
NTEREST —
D
UE
P
ROCESS
.
When analyzing a due process claim, courts first ask whether there
exists a liberty or property interest of which a person has been
deprived and, if so, whether the procedures followed by the state
were constitutionally sufficient; with regard to depriving a felon of
his or her possessory interest in noncontraband firearms under
the felon-in-possession statute, MCL 750.224f, the felon receives
all the process to which the felon is due when he or she is convicted
of the underlying felony.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Tony Tague, Prosecuting Attorney,
and Charles F. Justian, Chief Appellate Attorney, for
the people.
Nolan Law Offices, PLLC (by Kevin J. Wistrom), for
defendant.
P
ER
C
URIAM
. At issue in this case is whether Michi-
gan’s “felon in possession” statute, MCL 750.224f,
prevents a police department from delivering lawfully
seized noncontraband firearms to the designated agent
of a convicted felon. We conclude that it does. The
statute does not, however, prevent a court from appoint-
ing a successor bailee to maintain possession of a
2012] P
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defendant’s weapons during his or her period of legal
incapacity. Therefore, we reverse the Court of Appeals’
judgment, vacate the circuit court’s order of November
24, 2010, and remand this matter to the circuit court for
entry of an order not inconsistent with this opinion that
clarifies its disposition of the firearms.
Following a domestic disturbance, the Fruitport Police
Department executed a search warrant and lawfully
seized 87 firearms from defendant’s home. Of these,
defendant lawfully owned 86, but he illegally possessed
one short-barreled shotgun. Defendant was charged with
and pleaded guilty to one count of possession of a short-
barreled shotgun
1
and one count of felony-firearm.
2
After his sentencing, defendant moved to have all of
his lawfully owned weapons, which were still in the
police department’s possession, “returned to Carol Cut-
ler [defendant’s mother], as designated by Defendant in
his proposed Durable Power of Attorney....”Inargu-
ing the motion, defendant’s counsel informed the court
that defendant and counsel “would advise” defendant’s
mother to sell the weapons in accordance with the
authority conveyed in the power of attorney. The
Muskegon Circuit Court granted defendant’s motion in
an order dated November 24, 2010, over the prosecu-
tion’s objection.
The prosecution appealed by leave granted. The
Court of Appeals affirmed the circuit court’s decision in
a published opinion per curiam, holding that “denying
defendant’s designee the right to take possession of the
weapons would deprive defendant of his property with-
out due process of law.”
3
Having heard oral argument
1
MCL 750.224b.
2
MCL 750.227b.
3
People v Minch, 295 Mich App 92, 95; 811 NW2d 571 (2011).
90 493 M
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on the prosecution’s application for leave to appeal,
4
we
reverse the judgment of the Court of Appeals and
remand this case to the circuit court for further pro-
ceedings not inconsistent with this opinion.
MCL 750.224f(2) states:
A person convicted of a specified felony
[
5
]
shall not
possess, use, transport, sell, purchase, carry, ship, receive,
or distribute a firearm in this state until all of the following
circumstances exist:
(a) The expiration of 5 years after all of the following
circumstances exist:
(i) The person has paid all fines imposed for the viola-
tion.
(ii) The person has served all terms of imprisonment
imposed for the violation.
(iii) The person has successfully completed all condi-
tions of probation or parole imposed for the violation.
(b) The person’s right to possess, use, transport, sell,
purchase, carry, ship, receive, or distribute a firearm has
been restored pursuant to section 4 of Act No. 372 of the
Public Acts of 1927, being section 28.424 of the Michigan
Compiled Laws.
Under this statute, defendant cannot directly possess
his firearms because he is a convicted felon. Nor can
defendant constructively possess the firearms. This
Court has held that for possessory crimes in Michigan,
actual possession is not required; constructive posses-
sion is sufficient.
6
The test for constructive possession is
whether “the totality of the circumstances indicates a
sufficient nexus between defendant and the contra-
4
See People v Minch, 491 Mich 931 (2012).
5
Both of defendant’s convictions qualify as “specified felon[ies].” See
MCL 750.224f(6)(iii).
6
People v Johnson, 466 Mich 491, 500; 647 NW2d 480 (2002).
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band.”
7
“Although not in actual possession, a person has
constructive possession if he knowingly has the power
and the intention at a given time to exercise dominion
or control over a thing, either directly or through
another person or persons....”
8
Thus, if defendant
designates an agent to possess the firearms on his
behalf and the agent does so, defendant is in violation of
MCL 750.224f(2) because a sufficient nexus would
remain between defendant and the firearms.
While MCL 750.224f(2) suspends a felon’s possessory
interest in his or her firearms until the statutorily enu-
merated conditions are met, nothing in the statute severs
a felon’s ownership interest in his or her firearms.
9
Thus,
a felon continues to own his or her firearms but may not
actually or constructively possess them or engage in any of
the other prohibited activities listed in the statute.
10
Accordingly, neither the police department’s lawful sei-
zure of the firearms at issue here nor its continued
possession of the firearms deprived defendant of his
ownership rights in the firearms.
We agree with the prosecution that a constructive
bailment has been created between defendant and the
7
Id.
8
People v Flick, 487 Mich 1, 14; 790 NW2d 295 (2010) (quotation marks
and citations omitted).
9
That a convicted felon loses his or her possessory interest, but not his or
her ownership interest in the firearms is consistent with many federal cases
addressing the issue. See, e.g., United States v Miller, 588 F3d 418, 420 (CA
7, 2009) (“Because the United States did not commence a timely forfeiture
proceeding, Miller’s property interest in the firearms continues even though
his possessory interest has been curtailed.”); Cooper v City of Greenwood,
904 F2d 302, 304 (CA 5, 1990) (“[W]e hold that Cooper’s claimed ownership
interest in the firearms survived his criminal conviction....”).
10
If a defendant were to subsequently engage in any of the prohibited
activities listed in MCL 750.224f, the weapons would be subject to
forfeiture pursuant to MCL 750.239.
92 493 M
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police department.
11
As a constructive bailee of the
noncontraband weapons,
12
the police department is
charged with all the attendant duties and obligations of
a bailee.
13
Nothing in MCL 750.224f precludes the
appointment of a successor bailee to maintain posses-
sion of a felon’s weapons for the duration of the felon’s
incapacity. Thus, it would be lawful for another third
party, including defendant’s mother, to assume posses-
sion of these firearms as bailee.
To ensure compliance with MCL 750.224f, the person
appointed by the court to assume possession of a felon’s
firearms must do so as a bailee, not as the felon’s agent.
Unlike an agent, a bailee, by definition, remains free
from the felon’s control.
14
This is especially important
where, as here, the bailor’s desires for the disposition of
the property may be adverse to the bailee’s permissible
actions.
15
The distinction between a bailee and an agent
is essential, especially if defendant’s mother is ap-
11
A constructive bailment “arises... where a person has lawfully ac-
quired possession of personal property of another otherwise than by a
mutual contract of bailment....” 8A Am Jur 2d, Bailments, § 12, pp
533-534.
12
See 8A Am Jur 2d, Bailments, § 2, p 522 n 4 (“A sheriff or other
officer who takes custody of the property of another may be a construc-
tive bailee of the property.”).
13
See Godfrey v City of Flint, 284 Mich 291, 297-298; 279 NW 516
(1938) (concluding that a bailee owes the bailor a duty to preserve the
property with the ordinary care that a prudent person would apply to his
or her own property).
14
See 2A CJS, Agency, § 13, pp 313-314 (“A bailee over whose actions
the bailor has no control is not an agent, even though he or she acts for
the benefit of the bailor.”); see also 8A Am Jur 2d, Bailments, § 17, p 539
(“The primary distinction between an agency and a bailment is the
bailee’s freedom from control by the bailor....”).
15
8A Am Jur 2d, Bailments, § 17, p 539 (“In a bailment relationship,
the interests of the parties may be completely antagonistic, whereas a
person who undertakes to act as an agent for another cannot deal in the
agency matter for his or her own benefit without the consent of the
2012] P
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pointed successor bailee because her power of attorney
already suggests the existence of an agency relationship.
16
Because nothing prevents a person from serving as both
an agent of and a bailee for someone,
17
one person could
serve as bailee of defendant’s firearms and as defendant’s
agent for purposes of managing all his other property. But
if defendant retained control over the firearms, the person
holding the firearms would be acting as an agent, rather
than a bailee, and would be aiding and abetting defen-
dant’s violation of MCL 750.224f(2).
18
The Court of Appeals erred when it concluded that
the police department’s continued possession of defen-
dant’s firearms as a bailee violated defendant’s right to
due process. In analyzing a claim under the Due Process
Clause, “[w]e first ask whether there exists a liberty or
property interest of which a person has been deprived,
and if so we ask whether the procedures followed by the
State were constitutionally sufficient.”
19
Regarding de-
fendant’s possessory interest in his weapons, he re-
ceived all the process to which he was due when he
pleaded guilty of the underlying felonies, became a
convicted felon, and was rendered statutorily ineligible
to possess his 86 firearms.
20
No additional process is
required to determine that defendant cannot possess
principal, freely given with full knowledge of every detail known to the
agent which might affect the transaction.”).
16
See Persinger v Holst, 248 Mich App 499, 503; 639 NW2d 594 (2001).
17
8A Am Jur 2d, Bailments, § 17, pp 538-539 (“[A] bailee may also be
an agent of the bailor for some purposes with respect to the subject
matter of the same transaction or for other purposes....”).
18
Defendant’s control over the agent would create the necessary nexus
required for constructive possession. See Johnson, 466 Mich at 500.
19
Swarthout v Cooke, 562 US ___, ___; 131 S Ct 859, 861; 178 L Ed 2d
732 (2011); see also Hinky Dinky Supermarket, Inc v Dep’t of Community
Health, 261 Mich App 604, 605-606; 683 NW2d 759 (2004).
20
United States v Felici, 208 F3d 667, 670 (CA 8, 2000) (“When it is
apparent that the person seeking a return of the property is not lawfully
94 493 M
ICH
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these firearms because “the law’s requirements turn on
[a defendant’s felony] conviction alone—a fact that a
convicted [defendant] has already had a procedurally
safeguarded opportunity to contest.”
21
Moreover, be-
cause the police department does not seek to deprive
defendant of his ownership interest in his firearms, no
due process violation has occurred.
22
The Court of Appeals also erred by relying on Banks
v Detroit Police Department.
23
We now overrule the
erroneous decision in Banks.InBanks, the Detroit
Police Department seized various firearms, jewelry, and
cash while executing a search warrant on Alfonso
Banks’s house.
24
No charges were brought against
Banks after the seizure, but the department refused to
return the firearms because Banks was a convicted
felon.
25
Like the defendant here, Banks sought to have
the firearms turned over to a third party. The Court of
Appeals panel held that Banks was entitled to “desig-
nate an individual to receive the guns or produce the
owners of the guns to reclaim them,” concluding that
continued possession by the police department deprived
Banks of his property interest in the weapons without
due process of law.
26
But this decision, utterly devoid of
entitled to own or possess the property, the district court need not hold an
evidentiary hearing.”) (emphasis added).
21
Connecticut Dep’t of Pub Safety v Doe, 538 US 1, 7; 123 S Ct 1160; 155
L Ed 2d 98 (2003).
22
See note 9 of this opinion. As stated by the prosecution, “The
Fruitport Police Department recognizes Defendant’s ownership interest
in the firearms, subject to the limitations imposed by MCL 750.224f.”
23
Banks v Detroit Police Dep’t, 183 Mich App 175; 454 NW2d 198
(1990).
24
Id. at 177. At the time, Michigan did not have a “felon in possession”
statute, but the police department argued that Banks’s possession of the
firearms violated the similar federal statute, 18 USC 922(g).
25
Banks, 183 Mich App at 177-178.
26
Id. at 180.
2012] P
EOPLE V
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INCH
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analysis, failed to consider that Banks, who did not even
own the firearms, received sufficient due process re-
garding any possessory interest he had in the firearms
when he became a convicted felon in the first place.
Thus, contrary to the panel’s conclusion, no due process
violation occurred in Banks, and the instant Court of
Appeals panel’s reliance on Banks was misplaced.
In its ultimate disposition of defendant’s firearms,
the Muskegon Circuit Court must use precise language
so as not to authorize a violation of MCL 750.224f. The
circuit court may order the police department to turn
over the firearms to an appointed successor bailee as
long as the operative order is clear that the nature of
the relationship between defendant and the successor is
that of a bailment and that defendant must have no
control over or access to the firearms whatsoever. Even
defendant’s mother, who had a durable power of attor-
ney to attend to defendant’s affairs while he was
incarcerated, may possess the firearms as long as she
does so as a bailee and not as defendant’s agent.
27
The
successor bailee may not engage in any actions that
would destroy defendant’s ownership rights in the
guns.
28
If no replacement bailee is willing to hold the
27
The power of attorney is evidence of an agency relationship between
defendant and his mother. See Persinger, 248 Mich App at 503. This
agency relationship is not incompatible with defendant’s mother holding
the guns as a bailee, but it emphasizes the need for clarity in the circuit
court’s order. The circuit court’s November 24, 2010, order was problem-
atic because it created ambiguity about the mother’s authority.
28
Destroying defendant’s ownership rights would violate the duty of
care owed by a bailee to a bailor. See 8A Am Jur 2d, Bailments, § 77, pp
77-78. At oral argument defendant’s attorney suggested that defendant’s
mother would sell the guns. This would be impermissible, for to do so at
defendant’s instruction would be in violation of MCL 750.224f(2), and to
do so independently would destroy defendant’s ownership interest. If
defendant’s mother becomes a bailee, she may take no action other than
to hold the guns until defendant’s possession rights are reinstated.
96 493 M
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87 [Dec
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firearms in accordance with the conditions outlined by
the court, then the police department may retain pos-
session as constructive bailee until defendant is law-
fully entitled to possession of his firearms. Any of the
foregoing dispositions more than satisfy the due process
rights attendant to defendant’s ownership interest in
his firearms.
Accordingly, we reverse the judgment of the Court of
Appeals, vacate the circuit court’s order of Novem-
ber 24, 2010, and remand this matter to the circuit
court for entry of an order not inconsistent with this
opinion that clarifies its disposition of the firearms.
Y
OUNG
, C.J., and M
ARKMAN
,M
ARY
B
ETH
K
ELLY
, and
Z
AHRA
, JJ., concurred.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
,JJ.We
concur in the result only.
2012] P
EOPLE V
M
INCH
97
O
PINION BY
C
AVANAGH
,M
ARILYN
K
ELLY
,
AND
H
ATHAWAY
,JJ.
KIM v JPMORGAN CHASE BANK, NA
Docket No. 144690. Argued October 10, 2012 (Calendar No. 9). Decided
December 21, 2012.
Euihyung and In Sook Kim brought an action in the Macomb Circuit
Court against JPMorgan Chase Bank, N.A., seeking to set aside a
sheriff’s sale of their home. Plaintiffs had obtained a loan from
Washington Mutual Bank to refinance their home and granted
Washington Mutual a mortgage interest in the property to secure
the loan. The federal Office of Thrift Management subsequently
closed Washington Mutual and appointed the Federal Deposit
Insurance Corporation (FDIC) as receiver for the bank. Defendant
acquired Washington Mutual’s assets, including loans and loan
commitments, pursuant to a purchase and assumption agreement
that it reached with the FDIC. After plaintiffs defaulted on their
loan payments, defendant foreclosed on the property by advertise-
ment and purchased the property at the sheriff’s sale. Both parties
moved for summary disposition. Plaintiffs argued in part that
defendant had failed to comply with the statutory foreclosure-by-
advertisement requirements and that as a result the foreclosure
sale was void ab initio. The court, Richard L. Caretti, J., granted
summary disposition in favor of defendant, finding that because
defendant had acquired plaintiffs’ mortgage by operation of law,
defendant was not required to record the mortgage assignment
before beginning foreclosure-by-advertisement proceedings. The
Court of Appeals, D
ONOFRIO
,P.J., and S
TEPHENS
and R
ONAYNE
K
RAUSE
, JJ., reversed, concluding that because defendant was not
the original mortgagee and had acquired the loan by assignment
rather than by operation of law, defendant was obligated under
MCL 600.3204(3) to record the assignment of plaintiffs’ mortgage
to it before foreclosing by advertisement. The Court of Appeals
determined that defendant’s failure to record the assignment
rendered the sheriff’s sale void ab initio. 295 Mich App 200 (2012).
The Supreme Court granted defendant’s application for leave to
appeal. 491 Mich 915 (2012).
In an opinion by Justice M
ARILYN
K
ELLY
, joined by Justices
C
AVANAGH
,M
ARKMAN
, and H
ATHAWAY
, the Supreme Court held:
98 493 M
ICH
98 [Dec
When a subsequent mortgagee acquires an interest in a mort-
gage through a voluntary purchase agreement with the FDIC, the
mortgage has not been acquired by operation of law and that
subsequent mortgagee must comply with the provisions of MCL
600.3204 and record the assignment of the mortgage before
foreclosing on the mortgage by advertisement. Any defect or
irregularity in a foreclosure proceeding results in a foreclosure
that is voidable, not void ab initio.
1. The FDIC, when acting in its capacity as conservator or
receiver of failed depository institutions, acquires by operation of
law all rights, titles, powers, and privileges of the failed insured
depository institution and title to the books, records, and assets of
any previous conservator or other legal custodian of such institu-
tion under 12 USC 1821(d)(2)(A). Accordingly, the FDIC succeeded
to Washington Mutual’s assets, which included plaintiffs’ mort-
gage, by operation of law.
2. Under 12 USC 1821(d)(2)(G), the FDIC may dispose of a
failed bank’s assets (1) by merging the insured depository institu-
tion with another insured depository institution or (2) by trans-
ferring, subject to approval by the appropriate federal banking
agency, any asset or liability of the institution to another deposi-
tory institution. A transfer occurs by operation of law when it
takes place unintentionally, involuntarily, or through no affirma-
tive action on the part of the transferee. The transfer of Washing-
ton Mutual’s assets from the FDIC to defendant was an assign-
ment and did not take place by operation of law because defendant
acquired Washington Mutual’s assets in a voluntary transaction
pursuant to 12 USC 1821(d)(2)(G)(i)(II). The FDIC chose to
transfer Washington Mutual’s assets through the voluntary pur-
chase agreement, not by a merger, which would have effectuated
the transfer of assets by operation of law under 12 USC
1821(d)(2)(G)(i)(I).
3. Under MCL 600.3204(3), if the party foreclosing on a
mortgage by advertisement is not the original mortgagee, a record
chain of title must exist evidencing the assignment of the mort-
gage to the party foreclosing on the mortgage before the date of
sale. Defendant failed to record the assignment of plaintiffs’
mortgage before foreclosing on it by advertisement.
4. Defects or irregularities in a foreclosure proceeding result in
a foreclosure that is voidable, not void ab initio. To set aside a
foreclosure-by-advertisement sale on the basis of a failure to follow
the foreclosure requirements set forth in MCL 600.3204, the party
claiming a defect must demonstrate prejudice by showing that it
would have been in a better position to preserve its interest in the
2012] K
IM V
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HASE
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ANK
,NA 99
property absent the other party’s statutory noncompliance. Be-
cause defendant failed to record its interest in plaintiffs’ mortgage
in compliance with MCL 600.3204 before foreclosing on the
property by advertisement, the sale was voidable, not void ab initio
as the Court of Appeals incorrectly determined.
Affirmed in part, reversed in part, and remanded for further
proceedings.
Justice M
ARKMAN
, concurring, wrote separately to emphasize
that the dissent did not provide an affirmative definition of
“operation of law,” did not explain the legal significance of its
observation that the transaction at issue was “specialized,” and
did not support its contention that the FDIC’s characterization of
the transfer should be accorded respectful consideration in light of
the fact that this case concerned only Michigan law and that the
affidavit submitted was not a product of the standard rulemaking
process. Justice M
ARKMAN
would also have offered additional guid-
ance to the trial court concerning the nature of the prejudice that
plaintiffs must demonstrate in order to set aside the foreclosure.
Justice Z
AHRA
, joined by Chief Justice Y
OUNG
and Justice M
ARY
B
ETH
K
ELLY
, dissenting, would have reversed the judgment of the
Court of Appeals and held that the FDIC’s transfer of Washington
Mutual’s assets to defendant occurred by operation of law. Under 12
USC 1821(d)(2)(G)(i)(II), the FDIC is empowered to resolve the
business of a failed bank by transferring any asset or liability without
any assignment, or consent with respect to that transfer. As stated by
the FDIC in an affidavit, the transfers of assets from Washington
Mutual to the FDIC, as the receiver, and then almost immediately to
defendant occurred by operation of law without an assignment; the
transfer was not a simple sale as asserted by the majority. The FDIC’s
characterization of a transfer under its governing statute should be
accorded respectful consideration. Contrary to the majority’s conclu-
sion, a transfer by operation of law does not have to be involuntary.
Such a rule ignores that other transfers, such as those that occur by
intestacy or a joint tenancy, occur by operation of law but require
acceptance by the transferee. The transaction between the FDIC and
defendant was the legal equivalent of a merger because defendant
received the assets and liabilities without an assignment and stepped
into Washington Mutual’s shoes. Because defendant acquired plain-
tiffs’ mortgage without assignment and by operation of law pursuant
to the FDIC’s statutory authority, the recording requirements of
MCL 600.3204(3) did not apply. Defendant was legally considered the
original mortgagee, was not required to record anything in the chain
of title, and properly foreclosed on plaintiffs’ mortgage by advertise-
ment.
100 493 M
ICH
98 [Dec
1. M
ORTGAGES —
T
RANSFER OF
M
ORTGAGES —
O
PERATION OF
L
AW
.
The transfer of a mortgage occurs by operation of law when it takes
place unintentionally, involuntarily, or through no affirmative
action on the part of the transferee.
2. M
ORTGAGES —
A
CQUISITION OF
M
ORTGAGES —
A
SSIGNMENT OF
M
ORTGAGES
.
When a subsequent mortgagee acquires an interest in a mortgage
through a voluntary purchase agreement with the Federal Deposit
Insurance Corporation, acting in its capacity as the conservator or
receiver of a failed depository institution, pursuant to 12 USC
1821(d)(2)(G)(i)(II), the mortgage has not been acquired by opera-
tion of law and the subsequent mortgagee must comply with the
provisions of MCL 600.3204 and record the assignment of the
mortgage before foreclosing on the mortgage by advertisement.
3. M
ORTGAGES —
F
ORECLOSURE BY
A
DVERTISEMENT —
D
EFECTS IN
F
ORECLOSURE BY
A
DVERTISEMENTS —
V
OIDABLE
.
Defects or irregularities in a foreclosure proceeding result in a
foreclosure that is voidable, not void ab initio; to set aside a
foreclosure-by-advertisement sale on the basis of a failure to follow
the foreclosure requirements set forth in MCL 600.3204, the party
claiming a defect must demonstrate prejudice by showing that it
would have been in a better position to preserve its interest in the
property absent the other party’s statutory noncompliance.
Dykema Gossett, PLLC (by Joseph H. Hickey, Jospeh
A. Doerr, and Jill M. Wheaton), for Euihyung and In
Sook Kim,
Christenson & Fiederlein, P.C. (by Bernhardt D.
Christenson), for JPMorgan Chase Bank, N.A.
Amici Curiae:
Warner Norcross & Judd LLP (by Nicole L. Mazzocco
and James H. Breay), for the Michigan Bankers Asso-
ciation.
McClelland & Anderson, LLP (by Gregory L. McClel-
land and Melissa A. Hagen), for the Michigan Associa-
tion of Realtors.
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IM V
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ANK
,NA 101
Miller Canfield Paddock and Stone, PLC (by James
L. Allen and Scott R. Lesser), for the Real Property Law
Section of the State Bar of Michigan.
M
ARILYN
K
ELLY
, J. At issue in this case is the manner
in which defendant JPMorgan Chase Bank, N.A.
(Chase), the successor in interest to Washington Mutual
Bank (WaMu), acquired plaintiffs’ mortgage. Plaintiffs’
mortgage was among the assets held by WaMu when it
collapsed in 2008 in the largest bank failure in Ameri-
can history.
1
Specifically, we must determine whether
defendant acquired plaintiffs’ mortgage by “operation
of law” and, if so, whether MCL 600.3204(3), which sets
forth requirements for foreclosing by advertisement,
applies to the acquisition of a mortgage by operation of
law. We asked the parties to address whether, if the
foreclosure proceedings that defendant initiated were
flawed, the subsequent foreclosure is void ab initio or
merely voidable.
2
We hold that defendant did not acquire plaintiffs’
mortgage by operation of law. Rather, defendant ac-
quired that mortgage through a voluntary purchase
agreement. Accordingly, defendant was required to
comply with the provisions of MCL 600.3204. We fur-
ther hold, differently than did the Court of Appeals,
that the foreclosure sale in this case was voidable rather
than void ab initio. Accordingly, we affirm in part and
1
See Dash & Sorkin, Government Seizes WaMu and Sells Some Assets,
NY Times, September 25, 2008, available at <http://www.nytimes.com/
2008/09/26/business/26wamu.html?pagewanted=all> (accessed December
20, 2012).
2
“Void ab initio” is defined as “[n]ull from the beginning, as from the
first moment when a contract is entered into.” Black’s Law Dictionary
(9th ed). By contrast, “voidable” is defined as “[v]alid until annulled;
[especially], (of a contract) capable of being affirmed or rejected at the
option of one of the parties.” Id.
102 493 M
ICH
98 [Dec
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reverse in part the judgment of the Court of Appeals
and remand the case to the trial court for further
proceedings.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On July 11, 2007, plaintiffs obtained a loan from
WaMu in the amount of $615,000 to refinance their
residence. As security for the loan, plaintiffs granted a
mortgage on the property to WaMu, which properly
recorded it later that month.
When WaMu collapsed on September 25, 2008, the
federal Office of Thrift Management closed the bank
and appointed the Federal Deposit Insurance Corpora-
tion (FDIC) as receiver for its holdings. That same day,
the FDIC, acting as WaMu’s receiver, transferred virtu-
ally all of WaMu’s assets to defendant under authority
set forth in the Financial Institutions Reform, Recov-
ery, and Enforcement Act of 1989.
3
Under 12 USC 1821,
the FDIC is empowered to transfer the assets of a failed
bank “without any approval, assignment, or con-
sent....”
4
However, in this case, it did not avail itself of
that authority. Instead, the FDIC sold WaMu’s assets to
defendant pursuant to a purchase and assumption
(P&A) agreement.
Plaintiffs sought a loan modification in 2009 because
they were having difficulty making their mortgage
payments. They assert that a WaMu representative
advised them that they were ineligible for a loan modi-
fication because they were not at least three months in
arrears on their payments. Plaintiffs claim that on the
basis of this information, they deliberately allowed their
mortgage to become delinquent to qualify for a loan
3
PL 101-73, 103 Stat 183 et seq.
4
12 USC 1821(d)(2)(G)(i)(II).
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modification. They further allege that they signed docu-
ments to complete the modification and that their
attorney assured them that their loan modification had
been approved.
Defendant notified plaintiffs in May 2009 that it was
foreclosing on their property. Plaintiffs contend that
they attempted to ascertain whether the foreclosure
notice had been sent in error in light of the purported
loan modification and were advised by a WaMu repre-
sentative “not to worry.” Defendant published the re-
quired notice of foreclosure in May and June 2009. The
property was sold to defendant at a sheriff’s sale on
June 26, 2009.
Plaintiffs filed suit on November 30, 2009, seeking to
set aside the sale on the ground that they had received
a loan modification and that defendant had not bid fair
market value for the property at the sale. Defendant
responded with a motion for summary disposition. The
trial court granted summary disposition to defendant.
It ruled that defendant had acquired plaintiffs’ mort-
gage by operation of law. As a consequence, MCL
600.3204(3), which requires that a mortgage assign-
ment be recorded before initiation of a foreclosure by
advertisement, was inapplicable.
Plaintiffs appealed, pursuing only their claim that
defendant had failed to comply with MCL 600.3204(3)
and that, as a result, the foreclosure sale was void ab
initio. The Court of Appeals agreed. It held that MCL
600.3204(3) applied to defendant because defendant
was not the original mortgagee and acquired the loan by
assignment rather than by operation of law.
5
It rea-
soned that the FDIC, as receiver of WaMu’s assets, had
acquired those assets by operation of law, but not
5
Kim v JPMorgan Chase Bank, NA, 295 Mich App 200, 207; 813 NW2d
778 (2012).
104 493 M
ICH
98 [Dec
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defendant, which had purchased them from the FDIC.
6
Hence, the Court of Appeals held that defendant had a
statutory obligation to record the assignment of plain-
tiffs’ mortgage to it before foreclosing by advertise-
ment.
7
Moreover, the Court of Appeals held that defen-
dant’s failure to record the assignment rendered the
sheriff’s sale void ab initio.
8
Accordingly, it remanded
the case to the trial court for entry of judgment in favor
of plaintiffs.
Defendant filed an application for leave to appeal in
this Court. We granted its application.
9
II. ANALYSIS
A. LEGAL BACKGROUND
We review de novo the grant or denial of a motion for
summary disposition.
10
We use the same standard to
review questions of statutory interpretation.
11
At the heart of this dispute are the statutory provi-
sions governing the foreclosure of mortgages by adver-
tisement.
12
MCL 600.3204 sets forth the requirements,
providing in relevant part:
(1) Subject to subsection (4) [providing certain excep-
tions inapplicable to this case], a party may foreclose a
mortgage by advertisement if all of the following circum-
stances exist:
6
Id.
7
Id. at 208.
8
Id.
9
Kim v JPMorgan Chase Bank, NA, 491 Mich 915 (2012).
10
Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 75; 780 NW2d
753 (2010).
11
Midland Cogeneration Venture Ltd Partnership v Naftaly, 489 Mich
83, 89; 803 NW2d 674 (2011).
12
MCL 600.3201 et seq.
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(a) A default in a condition of the mortgage has oc-
curred, by which the power to sell became operative.
(b) An action or proceeding has not been instituted, at law,
to recover the debt secured by the mortgage or any part of the
mortgage; or, if an action or proceeding has been instituted,
the action or proceeding has been discontinued; or an execu-
tion on a judgment rendered in an action or proceeding has
been returned unsatisfied, in whole or in part.
(c) The mortgage containing the power of sale has been
properly recorded.
(d) The party foreclosing the mortgage is either the
owner of the indebtedness or of an interest in the indebt-
edness secured by the mortgage or the servicing agent of
the mortgage.
***
(3) If the party foreclosing a mortgage by advertisement
is not the original mortgagee, a record chain of title shall
exist prior to the date of sale under [MCL 600.3216]
evidencing the assignment of the mortgage to the party
foreclosing the mortgage.
Thus, as a general matter, a mortgagee cannot validly
foreclose a mortgage by advertisement before the mort-
gage and all assignments of that mortgage are duly
recorded.
This common understanding of the requirement of
recordation before foreclosure by advertisement was
also set forth in a 2004 Attorney General opinion.
Our Attorney General stated that “a mortgagee can-
not validly foreclose a mortgage by advertisement
unless the mortgage and all assignments of that
mortgage (except those assignments effected by operation
of law) are entitled to be, and have been, recorded.”
13
In 2004, the operative language now set forth in
13
OAG, 2003-2004, No 7147, p 93 (January 9, 2004).
106 493 M
ICH
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MCL 600.3204(3) was found in MCL 600.3204(1)(c).
14
The general powers of the FDIC in its capacity as
conservator or receiver
15
that are germane to this case
are set forth in 12 USC 1821. Specifically, 12 USC
1821(d)(2) describes the manner in which the FDIC
acquires assets. It provides, in relevant part:
(A) Successor to institution.—The [FDIC] shall, as con-
servator or receiver, and by operation of law, succeed to—
(i) all rights, titles, powers, and privileges of the insured
depository institution, and of any stockholder, member,
accountholder, depositor, officer, or director of such insti-
tution with respect to the institution and the assets of the
institution; and
(ii) title to the books, records, and assets of any previous
conservator or other legal custodian of such institution.
Subsection (d)(2) also sets forth the FDIC’s authority
to dispose of a failed bank’s assets, providing in perti-
nent part:
14
MCL 600.3204, as amended by 1994 PA 397, provided, in relevant
part:
(1) A party may foreclose by advertisement if all of the
following circumstances exist:
***
(c) The mortgage containing the power of sale has been
properly recorded and, if the party foreclosing is not the original
mortgagee, a record chain of title exists evidencing the assignment
of the mortgage to the party foreclosing the mortgage.
Subsequent amendments by 2004 PA 186 and 2009 PA 29 produced the
current language.
15
The Federal Deposit Insurance Act (FDIA), 12 USC 1811 et seq.,
governs the actions of the FDIC. The FDIA directs the FDIC to operate in
two separate and legally distinct capacities: FDIC corporate and FDIC acting
as receiver. FDIC corporate functions as an insurer of bank deposits. See 12
USC 1821(a). This function of the FDIC is not at issue here.
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(G) Merger; transfer of assets and liabilities.—
(i) In general.—The [FDIC] may, as conservator or
receiver—
(I) merge the insured depository institution with an-
other insured depository institution; or
(II) subject to clause (ii), transfer any asset or liability of
the institution in default (including assets and liabilities
associated with any trust business) without any approval,
assignment, or consent with respect to such transfer.
(ii) Approval by appropriate Federal banking
agency.—No transfer described in clause (i)(II) may be
made to another depository institution...without the
approval of the appropriate Federal banking agency for
such institution.
B. APPLICATION
Against this backdrop, we consider the manner in
which defendant acquired plaintiffs’ mortgage and
whether the requirements of MCL 600.3204 apply to
that acquisition.
1. DEFENDANT DID NOT ACQUIRE PLAINTIFFS’ MORTGAGE
BY OPERATION OF LAW
Two transfers of plaintiffs’ mortgage occurred on
September 25, 2008. The first, between WaMu and the
FDIC, was consummated when the Office of Thrift
Management closed WaMu and appointed the FDIC as
its receiver. This transfer took place pursuant to 12
USC 1821(d)(2)(A)(i) and (ii), which provide that the
FDIC “shall, as conservator or receiver, and by opera-
tion of law, succeed to...allrights, titles, powers, and
privileges of the insured depository institution...and
title to the books, records, and assets of any previous
conservator or other legal custodian of such institu-
tion.” (Emphasis added.) Thus, when the FDIC suc-
ceeded to WaMu’s assets, which included plaintiffs’
108 493 M
ICH
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mortgage, it did so by clear operation of a statutory
provision—12 USC 1821(d)(2)(A). With respect to this
transfer, the FDIC acquired plaintiffs’ mortgage by
operation of law.
But the FDIC only briefly possessed WaMu’s assets,
including plaintiffs’ mortgage. It immediately trans-
ferred those assets to defendant. The dispositive ques-
tion in this case is whether the second transfer of
WaMu’s assets—the transfer from the FDIC to
defendant—took place by operation of law.
The seminal case discussing the term “operation of
law” in the context of foreclosures by advertisement is
Miller v Clark.
16
In Miller, a mortgagee died intestate.
The Court considered whether the guardian of his heirs
was obliged to record an assignment of the mortgage
before foreclosing on it by advertisement. The Court held:
The authority to foreclose such mortgages by advertise-
ment is purely statutory, and all the requirements of the
statute must be substantially complied with. To entitle a
party to foreclose in this manner it is required, among other
things, that the mortgage containing such power of sale has
been duly recorded; and if it shall have been assigned, that all
the assignments thereof shall have been recorded. And also
that the notice shall specify the names of the mortgagor and
the mortgagee, and of the assignee of the mortgage, if any.
The assignments which are required to be recorded are
those which are executed by the voluntary act of the party,
and this does not apply to cases where the title is transferred
by operation of law; the object of the statute being to
restrict the execution of the power to the owner of the legal
title to the instrument.
[
17
]
16
Miller v Clark, 56 Mich 337; 23 NW 35 (1885).
17
Id. at 340-341 (emphasis added) (quotation marks omitted). The
statute governing foreclosures by advertisement in effect when Miller
was decided in 1885, 1871 CL 6913, was considerably different from the
current statute, MCL 600.3204.
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Thus, Miller contemplated that a transfer occurs by
operation of law when it takes place involuntarily or as
the result of no affirmative action on the part of the
transferee.
Miller’s interpretation of when a transfer occurs by
“operation of law” is consistent with Black’s Law Dic-
tionary’s definition of the expression. Black’s defines
“operation of law” as “[t]he means by which a right or
a liability is created for a party regardless of the party’s
actual intent.”
18
Similarly, this Court has long under-
stood the expression to indicate “the manner in which a
party acquires rights without any act of his own.”
19
Accordingly, there is ample authority for the proposi-
tion that a transfer that takes place by operation of law
occurs unintentionally, involuntarily, or through no
affirmative act of the transferee.
Applying this proposition, we hold that the transfer
of WaMu’s assets from the FDIC to defendant did not
take place by operation of law. Defendant acquired
WaMu’s assets from the FDIC in a voluntary transac-
tion; defendant was not forced to acquire them. Instead,
defendant took the affirmative action of voluntarily
paying for them. Had defendant not willingly purchased
them, it would not have come into possession of plain-
18
Black’s Law Dictionary (9th ed) (emphasis added).
19
Merdzinski v Modderman, 263 Mich 173, 175; 248 NW 586 (1933)
(emphasis added) (citation and quotation marks omitted); see also Union
Guardian Trust Co v Emery, 292 Mich 394, 406-407; 290 NW 841 (1940)
(holding in a discussion of a constructive trust that, “[w]hile the term
‘constructive trust’ has been broadly defined as a trust raised by
construction of law, or arising by operation of law, as distinguished from
an express trust, in a more restricted sense and contradistinguished from
a resulting trust it has been variously defined as a trust not created by
any words, either expressly or impliedly evincing a direct intention to
create a trust, but by the construction of equity in order to satisfy the
demands of justice; one not arising by agreement or intention, but by
operation of law”) (emphasis added).
110 493 M
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tiffs’ mortgage. WaMu’s assets did not pass to defen-
dant “without any act of [defendant’s] own”
20
or “re-
gardless of [defendant’s] actual intent.”
21
Accordingly,
the Court of Appeals correctly concluded that defendant
did not acquire WaMu’s assets by operation of law.
Defendant and the dissent contend that the transfer
occurred by operation of law because, although not a
merger, the transfer was analogous to a merger and
should be treated as one. We find this reasoning unper-
suasive.
22
12 USC 1821(d)(2)(G)(i)(I) empowered the
FDIC to merge WaMu with another financial institu-
tion such as defendant. Had a merger occurred under
that statutory provision, defendant would have a strong
argument that it had merely stepped into the shoes of
WaMu. It would have had no need to engage in a
transfer of any of WaMu’s assets. And the transaction
would have occurred without any voluntary or affirma-
tive action by defendant, given that the FDIC may, at its
discretion, merge a failed bank with another institu-
tion. The transaction could have constituted a transfer
by operation of law under traditional banking and
corporate law.
23
20
Merdzinski, 263 Mich at 175.
21
Black’s Law Dictionary (9th ed).
22
We also find unpersuasive the FDIC’s characterization of the trans-
fer as one that occurred by operation of law. We have given respectful
consideration to the FDIC’s position, but we do not resort to it for
guidance in this matter due to its lack of persuasiveness. In addition, the
authorities cited by the dissent in support of its contention that the
FDIC’s position should be accorded respectful consideration, post at 124
n 10, are inapposite. This case is concerned with Michigan law, not
federal law. The dispositive issue is whether defendant satisfied MCL
600.3204, which implicates whether the transfer from the FDIC to
defendant occurred by operation of law. Whether the transfer occurred by
operation of law is governed by Michigan law.
23
See, e.g., 12 USC 215a(e) (“All rights, franchises, and interests of the
individual merging banks or banking associations in and to every type of
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But here, a merger did not occur. In selling WaMu’s
assets to defendant, the FDIC relied on a different statu-
tory provision, 12 USC 1821(d)(2)(G)(i)(II), which allows
the FDIC to “transfer” the assets and liabilities of failed
institutions. Hence, although the FDIC could have effec-
tuated a merger in reliance on subsection (d)(2)(G)(i)(I), it
explicitly chose not to do so. Indeed, the FDIC submitted
an affidavit to the Court that describes the transaction,
specifically citing the subsection of the statute authorizing
transfers, rather than the subsection authorizing merg-
ers.
24
Unlike the dissent, we will not conclude that a
merger took place when the FDIC so clearly chose to
engage in a different type of transaction under a different
statutory provision.
25
In sum, the Court of Appeals correctly held that
defendant did not acquire WaMu’s assets by operation
of law.
property (real, personal, and mixed) and choses in action shall be
transferred to and vested in the receiving association by virtue of such
merger without any deed or other transfer.”); MCL 450.1724(1)(b)
(“When a merger takes effect,... thetitle to all real estate and other
property and rights owned by each corporation party to the merger are
vested in the surviving corporation without reversion or impairment.”).
24
The affidavit provides, in relevant part:
3. As authorized by... 12 U.S.C. §1821(d)(2)(G)(i)(II), the
FDIC, as receiver of Washington Mutual, may transfer any asset or
liability of Washington Mutual without any approval, assignment,
or consent with respect to such transfer.
4. Pursuant to the terms and conditions of a [P&A] Agreement
between the FDIC as receiver of Washington Mutual and [defen-
dant]...[defendant] acquired certain of the assets, including all
loans and all loan commitments, of Washington Mutual.
5. As a result, on September 25, 2008, [defendant] became the
owner of the loans and loan commitments of Washington Mutual
by operation of law.
25
Although the FDIC’s affidavit purports that the sale of WaMu’s
assets to defendant was effected by operation of law, the FDIC may not by
unilateral declaration make it so.
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2. DEFENDANT’S FAILURE TO COMPLY WITH MCL 600.3204(3)
RENDERS THE FORECLOSURE OF PLAINTIFFS’ PROPERTY VOIDABLE
As noted earlier, MCL 600.3204 sets forth several
requirements for foreclosing a property by advertise-
ment. Subsection (3) requires a party that is not the
original mortgagee to record the assignment of the
mortgage to it before foreclosing. Because defendant
acquired plaintiffs’ mortgage through a voluntary
transfer, and given that it was not the original mort-
gagee, it was subject to the recordation requirement of
MCL 600.3204(3). Having made that determination, we
must now decide the effect of defendant’s failure to
comply with that provision.
26
With meager supporting analysis, the Court of Ap-
peals concluded that defendant’s failure to record its
mortgage interest before initiating foreclosure proceed-
26
Because we have held that defendant acquired plaintiffs’ mortgage
through a voluntary transfer, we need not decide whether MCL
600.3204(3) applies to the acquisition of a mortgage by operation of law.
The dissent must decide this issue to support its position. In doing so, it
acknowledges that changes have been made to the language of the
foreclosure-by-advertisement statute during the 127 years since Miller
was decided. It mentions that both versions “required the recordation of
mortgage assignments before foreclosure was permitted.” But it over-
looks the fact that the 1871 statute required the recordation of assign-
ments only “if [the mortgage] shall have been assigned,” 1871 CL 6913,
whereas the current statute, MCL 600.3204(3), requires recordation if
the foreclosing party “is not the original mortgagee.” These are two
distinct triggering mechanisms for recordation. Moreover, the fact that in
the 1871 statute the recordation requirement was triggered by assign-
ment seems particularly significant. “Assignment” is defined as “1. The
transfer of rights or property. 2. The rights or property so transferred.”
Black’s Law Dictionary (9th ed). By contrast, as noted earlier, “operation
of law” expresses devolution of a right absent the acts of a party, such as
assignment, to obtain them. Thus, the Miller Court correctly focused on
the voluntariness of transfer and concluded that involuntary transfers by
operation of law did not trigger the recording requirement because they
did not constitute assignments. The same conclusion cannot be made
when construing the language of MCL 600.3204(3).
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ings rendered the foreclosure sale void ab initio. It cited
one case in support of its holding, Davenport v HSBC
Bank USA.
27
There, the plaintiff, who was in default on
her mortgage, brought an action to void a foreclosure.
The defendant, who was the successor in interest of the
initial mortgagee, had initiated the foreclosure proceed-
ing several days before acquiring its interest in the
mortgage. The trial court granted summary disposition
to defendant.
The Court of Appeals reversed the trial court’s rul-
ing. It held that the defendant’s failure to comply with
MCL 600.3204(1)(d), which requires that a party own
some or all of the indebtedness before foreclosing by
advertisement, rendered the foreclosure proceedings
void ab initio.
28
But it cited not a single case in support
of the proposition that the foreclosure was void ab initio
as opposed to merely voidable.
Davenport’s holding was contrary to the established
precedent of this Court. We have long held that defec-
tive mortgage foreclosures are voidable. For example, in
Kuschinski v Equitable & Central Trust Co,
29
the Court
considered a foreclosure undertaken in violation of a
restraining order. The Court held:
Our attention is called to a few isolated cases where
under a different factual set-up, such sales have been held
to be void. The better rule seems to be that such sale is
voidable and not void. Plaintiff was not misled into believ-
ing that no sale had been had because of the order
restraining such action. He knew of the sale and, although
he was warned by defendants’ attorneys, violated the rule
27
Davenport v HSBC Bank USA, 275 Mich App 344; 739 NW2d 383
(2007).
28
Id. at 347-348.
29
Kuschinski v Equitable & Central Trust Co, 277 Mich 23; 268 NW
797 (1936).
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that in seeking to set aside a foreclosure sale, the moving
party must act promptly after he becomes aware of the
facts upon which he bases his complaint. The total lack of
equity in plaintiff’s claim, his failure to pay anything on the
mortgage debt and his laches preclude him from any relief
in a court of equity.
[
30
]
Similarly, in Feldman v Equitable Trust Co, the Court
held that a foreclosure commenced without first record-
ing all assignments of the mortgage is not invalid if the
defect does not harm the homeowner.
31
This Court, the
Court of Appeals, and the United States District Court
for the Eastern District of Michigan have consistently
used this interpretation.
32
We continue to adhere to it.
Therefore, we hold that defects or irregularities in a
foreclosure proceeding result in a foreclosure that is
voidable, not void ab initio. Because the Court of
Appeals erred by holding to the contrary, we reverse
that portion of its decision. We leave to the trial court
the determination of whether, under the facts pre-
sented, the foreclosure sale of plaintiffs’ property is
voidable. In this regard, to set aside the foreclosure sale,
plaintiffs must show that they were prejudiced by
defendant’s failure to comply with MCL 600.3204. To
30
Id. at 26-27 (emphasis added) (citations omitted).
31
Feldman v Equitable Trust Co, 278 Mich 619, 624-625; 270 NW 809
(1937).
32
See, e.g., Fox v Jacobs, 289 Mich 619, 624; 286 NW 854 (1939) (holding
that the failure of a foreclosure notice to specify an assignee of the mortgage,
as required by statute, did not render the foreclosure sale absolutely void,
but only voidable); Sweet Air Investment, Inc v Kenney, 275 Mich App 492,
502; 739 NW2d 656 (2007) (holding that a defect in notice renders a
foreclosure sale voidable and not void); Jackson Investment Corp v Pittsfield
Prod, Inc, 162 Mich App 750, 756; 413 NW2d 99 (1987) (“We conclude that
the trial court correctly held that the notice defect rendered the [foreclosure]
sale voidable and not void.”); Worthy v World Wide Fin Servs, Inc, 347 F
Supp 2d 502, 511 (ED Mich, 2004) (“[E]ven if Defendant failed to comply
with the foreclosure notice statute, I would not have sufficient grounds to
invalidate the foreclosure sale, because of a lack of prejudice.”).
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demonstrate such prejudice, they must show that they
would have been in a better position to preserve their
interest in the property absent defendant’s noncompli-
ance with the statute.
33
III. RESPONSE TO THE DISSENT
At the outset, the dissent claims that the FDIC has
more familiarity with the type of transaction that
occurred in this case than does this Court. We do not
underestimate the FDIC’s grasp of what is involved in
the liquidation of failed banking institutions. However,
we are more familiar with the judicial review process of
interpreting statutes and applying them to a set of facts
than is an executive agency.
The dissent states that pursuant to 12 USC
1821(d)(2)(G)(i)(I) and (II), the FDIC may merge a
failed bank with or transfer a failed bank’s assets to a
financially healthy bank. It claims that, “[u]nder either
provision, the statute provides for transfers by opera-
tion of law.”
34
This is simply false. Neither statutory
provision indicates that either a merger or a transfer
takes place by operation of law. The language of 12 USC
1821(d)(2)(G) is in stark contrast with that of 12 USC
1821(d)(2)(A), which explicitly provides that the FDIC
succeeds to various property interests by operation of
law. The dissent compounds its error by conflating the
FDIC’s statutory authority to engage in a transaction
involving a failed bank’s assets and liabilities with the
nature of the transaction itself.
35
33
See, generally, Kuschinski, 277 Mich at 26-27; Sweet Air, 275 Mich
App at 503; Jackson, 162 Mich App at 756.
34
Post at 125.
35
Similarly, the dissent’s focus on which of WaMu’s assets the FDIC
transferred to defendant is irrelevant. It is the nature of the transaction, not
its contents, that informs our conclusion that the transfer did not take place
by operation of law.
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More problematic, however, is the dissent’s failure to
analyze the issue most central to this case: what is
meant by a transfer by “operation of law.” The dissent
states as an ipse dixit that “a transfer by operation of
law need not be involuntary....”
36
It cites not a trace
of authority for this fiat. The dissent would also analyze
whether a transaction took place by operation of law
through the lens of the subjective intent of a related
party.
37
This cannot be.
38
By contrast, in giving meaning to the phrase “opera-
tion of law,” we have carefully considered decades-old
precedent from this Court, as well as consulted a legal
dictionary. We defer to these established authorities for
the proposition that a transfer that takes place by
operation of law is one that occurs unintentionally,
involuntarily, or through no affirmative act of the
transferee.
Finally, the dissent also errs in its alternative argument
that defendant is exempt from MCL 600.3204(3) even if
the transfer in question did not occur by operation of law.
This argument hinges on the belief that defendant did not
36
Post at 128.
37
In effect, the dissent’s definitionless approach to this case would
redefine the phrase “operation of law” to mean “as provided by law.” The
dissent essentially argues that because the FDIC, by statute, may
liquidate failed banks, when it does so the resulting transfer occurs by
operation of law. Under the dissent’s approach, any lawful transaction
would constitute a transfer by operation of law. It fails to recognize this
contradiction.
38
The dissent also attempts to undermine our definition of “operation
of law” by arguing that transfers accomplished by intestate succession
occur by operation of law. It posits that, contrary to our definition of the
phrase, those transfers cannot be completed without the affirmative act
of a recipient in accepting the property. This position is incorrect. In
intestacy succession, if an heir takes no affirmative action, he or she may
acquire rights to a decedent’s property. It is only if an heir takes the
affirmative step of disclaiming his or her inheritance that it does not pass
to that individual. See MCL 700.2902(1).
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acquire its interest in plaintiffs’ mortgage by assignment.
The statute plainly indicates that “a record chain of title
shall exist” if the party foreclosing by advertisement “is
not the original mortgagee.” It is undisputed that defen-
dant is not the original mortgagee. Thus, regardless of
why no chain of title exists, defendant cannot foreclose by
advertisement.
39
IV. CONCLUSION
Defendant acquired plaintiffs’ mortgage through a
voluntary purchase agreement with the FDIC. It fol-
lows that it did not acquire the mortgage by operation
of law. Accordingly, defendant was required to record its
interest in compliance with the provisions of MCL
600.3204 before foreclosing on the property by adver-
tisement. We further hold, differently than did the
Court of Appeals, that the sale of the foreclosed prop-
erty was voidable rather than void ab initio. Accord-
ingly, we affirm in part and reverse in part the judgment
of the Court of Appeals and remand the case to the trial
court for further proceedings. We direct the trial court
to expedite its decision on remand.
We do not retain jurisdiction.
C
AVANAGH
,M
ARKMAN
, and H
ATHAWAY
, JJ., concurred
with M
ARILYN
K
ELLY
,J.
M
ARKMAN
,J.(concurring). I fully concur in the analy-
sis and results of the majority opinion and write sepa-
rately only to supplement that opinion with the follow-
ing observations:
39
The dissent opines that nothing exists that could be recorded in the
chain of title evidencing the assignment of interest. This is untrue. For
example, defendant could file a copy of the P&A agreement with the
register of deeds.
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First, it must be emphasized that the dissent fails
entirely to provide an affirmative definition of the legal
term of art that is at the heart of this dispute: “opera-
tion of law.” The closest the dissent comes is merely
stating in the negative that “a transfer by operation of
law need not be involuntary....”Post at 128. However,
it would be more instructive for the development of our
law to know what affirmative meaning the dissent
would ascribe to “operation of law.” To the extent that
some definition can be inferred from the dissent, that
definition is, in my judgment, plainly incorrect. As the
majority points out, the dissent essentially seeks to
redefine the term “operation of law” to mean “as
provided by law.” That is, the dissent argues that
because the FDIC acted pursuant to or in accordance
with federal statutes, its actions necessarily occurred by
“operation of law.” Under this theory, it is difficult to
envision any transfer of money or property, short of the
payment of a bribe or blackmail, that would not occur
by “operation of law.”
Second, it is difficult to ignore the dissent’s repeated
references to the fact that the transaction at issue “was
not a simple contract for the sale of assets,” post at 121,
but rather constituted a “specialized transaction,” see
post at 121. Although the dissent makes several refer-
ences to the “special” nature of the transaction, it fails
to explain how that nature communicates any legal
significance. In fact, there is no obvious reason, and the
dissent supplies none, for the proposition that the
assertedly “special” nature of the instant transaction
has any bearing on the determination of whether a
transfer is or is not by “operation of law.” Certainly,
that the transfer was “special” has nothing to do with
the voluntariness of the transfer. The dissent’s empha-
sis in this regard only has the effect of obscuring the
legal realities of this case that are relevant.
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Third, I believe it deserves emphasis that the dis-
sent’s contention that the FDIC’s characterization of
the transfer should be accorded “respectful consider-
ation” and the authorities cited in support of this
contention, post at 124 n 10, are inapposite. To begin
with, this case is concerned with Michigan law, not
federal law. The critical issue is whether Chase satisfied
the Michigan “foreclosure by advertisement” statute,
which implicates whether the transfer from the FDIC to
Chase was accomplished by “operation of law,” as that
phrase is understood under Michigan caselaw. Thus,
clearly only issues of Michigan law are involved. Fur-
thermore, even if the issues in this case did implicate
federal law, the FDIC’s purported “guidance” is offered
through an affidavit submitted by an individual “re-
ceiver in charge” for the FDIC. This affidavit is not the
statement of the governing board of directors of the
FDIC, it is not the statement of any single member of
the governing board of directors of the FDIC, and it
certainly is not the fruit of rulemaking or adjudication
by the FDIC.
1
As the United States Supreme Court
advised in United States v Mead Corp, 533 US 218, 229;
121 S Ct 2164; 150 L Ed 2d 292 (2001), “[a] very good
indicator of delegation meriting [deference] is [an]
express congressional authorization[] to engage in the
rulemaking or adjudication process that produces the
regulations or rulings for which deference is claimed.”
There is an utter absence of any such “indicator” in this
case.
Finally, I would offer additional guidance to the trial
court concerning the nature of the “prejudice” that
plaintiffs must demonstrate in order to set aside the
1
For these reasons, I would also characterize differently than does the
majority opinion the “FDIC’s affidavit,” ante at 112 n 25, and the
“FDIC’s position,” ante at 111 n 22.
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foreclosure. Although a nonexhaustive listing, some of
the factors that might be relevant in this demonstration
would include the following: whether plaintiffs were
“misled into believing that no sale had been had,”
Kuschinski v Equitable & Central Trust Co, 277 Mich
23, 26; 268 NW 797 (1936); whether plaintiffs “act[ed]
promptly after [they became] aware of the facts” on
which they based their complaint, id.; whether plain-
tiffs made an effort to redeem the property during the
redemption period, Sweet Air Investment, Inc v Kenney,
275 Mich App 492, 503; 739 NW2d 656 (2007); whether
plaintiffs were “represented by counsel throughout the
foreclosure process,” Jackson Investment Corp v Pitts-
field Prod, Inc, 162 Mich App 750, 756; 413 NW2d 99
(1987); and whether defendant “relied on the apparent
validity of the sale by taking steps to protect its interest
in the subject property,” id. at 757.
Z
AHRA
,J.(dissenting). I respectfully dissent from the
majority’s conclusion that plaintiffs’ mortgage did not
pass to JPMorgan Chase Bank, N.A., by operation of
law. Under federal law, the Federal Deposit Insurance
Corporation (FDIC) has broad statutory powers for
resolving the business of a failed bank. The FDIC’s
transfer of plaintiffs’ mortgage to Chase was part of a
larger, specialized transaction authorized under federal
law that was undertaken by the FDIC to resolve the
business of Washington Mutual Bank (WaMu), a failed
bank. Pursuant to this federal authority, the FDIC was
permitted to transfer the assets of WaMu “without any
approval, assignment, or consent....”
1
The particular
transaction consummated here was not a simple con-
tract for the sale of assets, as characterized by the
1
12 USC 1821(d)(2)(G)(i)(II).
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majority. The majority’s conclusions represent a funda-
mental misunderstanding of the FDIC’s authority to
liquidate WaMu.
Michigan law has long recognized that a mortgage
obtained by operation of law need not be recorded
before foreclosure is allowed because the successor
mortgagee steps into the shoes of the original mort-
gagee.
2
Because Chase obtained plaintiffs’ mortgage
from the FDIC by operation of law, I would hold it
exempt from the recordation requirement of MCL
600.3204(3). I would reverse the judgment of the Court
of Appeals.
I. ALL TRANSFERS OF ASSETS UNDER 12 USC 1821(d)(2)(G)(i)
OCCUR BY OPERATION OF LAW
The majority correctly concludes that “when the
FDIC succeeded to WaMu’s assets, which included
plaintiffs’ mortgage, it did so by clear operation of a
statutory provision—12 USC 1821(d)(2)(A). With re-
spect to this transfer, the FDIC acquired plaintiffs’
mortgage by operation of law.”
3
But I disagree with the
majority that the subsequent transfer, from the FDIC to
Chase, did not occur by operation of law. In fact, the
FDIC transferred WaMu’s assets to Chase by operation
of another statutory provision—12 USC
1821(d)(2)(G)(i)(II). This provision empowers the FDIC
to resolve the business of a failed bank by transferring
any asset or liability “without any approval, assign-
ment, or consent with respect to such transfer.”
4
The majority, following the erroneous logic employed
by the Court of Appeals, characterizes the transaction
2
Miller v Clark, 56 Mich 337, 340-341; 23 NW 35 (1885).
3
Ante at 108-109.
4
12 USC 1821(d)(2)(G)(i)(II).
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between the FDIC and Chase as a simple contractual
sale.
5
Simply put, this characterization fundamentally
misunderstands the structure of the agreement. Rather
than an ordinary sale of assets, this was a specialized
transaction facilitated by the FDIC in accordance with
its mandate to resolve the businesses of failed banks.
6
The FDIC, through its statutory powers, enabled a
transition in which it stepped into WaMu’s shoes as
receiver and took possession of WaMu’s assets and
liabilities without any assignment; then, almost instan-
taneously, the FDIC transferred substantially all of
WaMu’s assets and liabilities to Chase. This transfer of
assets was intended to be accomplished by operation of
law and again without an assignment. The FDIC con-
firmed as much in its October 2, 2008, affidavit, which
it executed contemporaneously with the transfer. In
pertinent part, the FDIC stated the following:
2. On September 25, 2008, Washington Mutual Bank,
formerly known as Washington Mutual Bank, FA (“Wash-
ington Mutual”), was closed by the Office of Thrift Super-
vision and the FDIC was named receiver.
3. As authorized by Section 11(d)(2)(G)(i)(II) of the Fed-
eral Deposit Insurance Act, 12 U.S.C. § 1821(d)(2)(G)(i)(II),
the FDIC, as receiver of Washington Mutual, may transfer
any asset or liability of Washington Mutual without any
approval, assignment, or consent with respect to such trans-
fer.
5
The majority states:
Under 12 USC 1821, the FDIC is empowered to transfer the
assets of a failed bank “without any approval, assignment, or con-
sent....” However, in this case, it did not avail itself of that
authority. Instead, the FDIC sold WaMu’s assets to defendant pursu-
ant to a purchase and assumption (P&A) agreement. [Ante at 103.]
6
12 USC 1821(c)(2)(A)(ii) (“The [FDIC] shall be appointed receiver,
and shall accept such appointment, whenever a receiver is appointed for
the purpose of liquidation or winding up the affairs of an insured Federal
depository institution....”).
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4. Pursuant to the terms and conditions of a Purchase
and Assumption Agreement between the FDIC as receiver
of Washington Mutual and JPMorgan Chase Bank, Na-
tional Association (“JPMorgan Chase”), dated September
25, 2008 (the “Purchase and Assumption Agreement”),
JPMorgan Chase acquired certain of the assets, including
all loans and all loan commitments, of Washington Mutual.
5. As a result, on September 25, 2008, JPMorgan Chase
became the owner of the loans and loan commitments of
Washington Mutual by operation of law.
[
7
]
This affidavit is not, as the majority suggests, the
FDIC’s attempt to make, by unilateral declaration, the
transaction one completed by operation of law.
8
Rather,
it is the FDIC, which undoubtedly has more familiarity
with this particular type of transaction than the major-
ity,
9
accurately characterizing the actions it took pursu-
ant to federal law.
10
I cannot accept the majority’s
7
Emphasis added. The affidavit was executed contemporaneously with
the transfer at issue in this case, long before any litigation commenced.
8
Ante at 112 n 25 (“Although the FDIC’s affidavit purports that the
sale of WaMu’s assets to defendant was effected by operation of law, the
FDIC may not by unilateral declaration make it so.”).
9
Between October 1, 2000, and December 1, 2012, the FDIC was
appointed receiver or conservator in 502 bank failures. See Failed Bank
List, FDIC, available at <http://www.fdic.gov/bank/individual/
failed/banklist.html> (accessed December 20, 2012).
10
Though not binding on this Court, the FDIC’s characterization of a
transfer under its governing statute should be accorded respectful
consideration. See United States v Mead Corp, 533 US 218, 227; 121 S Ct
2164; 150 L Ed 2d 292 (2001) (“[A]gencies charged with applying a
statute necessarily make all sorts of interpretive choices, and while not
all of those choices bind judges to follow them, they certainly may
influence courts facing questions the agencies have already answered.”);
Skidmore v Swift & Co, 323 US 134, 140; 65 S Ct 161; 89 L Ed 124 (1944)
(“We consider that the rulings, interpretations and opinions of the
Administrator under this Act, while not controlling upon the courts by
reason of their authority, do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guid-
ance.”); see also Wells Fargo Bank v FDIC, 354 US App DC 6; 310 F3d
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conclusion that the FDIC and Chase entered into a
simple sale rather than a transfer by operation of law
considering that the FDIC’s receivership powers—
reserved only for the special situation of a bank
failure—do not contemplate ordinary sales like the one
suggested by the majority. Pursuant to 12 USC
1821(d)(2)(G)(i), the FDIC as receiver may either merge
a failed bank with a healthy bank
11
or transfer any asset
or liability of the failed bank “without any approval,
assignment, or consent with respect to such transfer.”
12
Under either provision, the statute provides for trans-
fers by operation of law. If the FDIC attempted to
transfer assets of a failed bank without relying on one of
the provisions of 12 USC 1821(d)(2)(G)(i), it would be
acting outside the scope of its statutory authority.
13
The majority erroneously concludes that a transfer
completed by operation of law must be one that oc-
curred involuntarily, ignoring basic business realities.
For example, when two companies merge—an action
202, 208 (2002) (“At the very least, however, because the FDIC is charged
with administering this highly detailed regulatory scheme, we may resort
to its ‘body of experience and informed judgment’ for guidance to the
extent that its position is persuasive.”). The majority instead chooses to
entirely ignore the FDIC’s position that it, in fact, transferred the WaMu
assets to Chase by operation of law. While we are ultimately interpreting
the requirements of MCL 600.3204(3), the question whether the transfer
at issue occurred “by operation of law” truly concerns the character of
the transaction as defined by federal law, which the FDIC is tasked with
administering. Thus, contrary to the majority’s assertion, the issues
raised in this case certainly implicate federal law and the majority would
do well to give some deference to the contemporaneous transaction
documents indicating that this transfer is understood under federal law
to have been completed by operation of law.
11
12 USC 1821(d)(2)(G)(i)(I).
12
12 USC 1821(d)(2)(G)(i)(II).
13
Louisiana Pub Serv Comm v FCC, 476 US 355, 374; 106 S Ct 1890;
90 L Ed 2d 369 (1986) (“[A]n agency literally has no power to act...
unless and until Congress confers power upon it.”).
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requiring affirmative intent and, often, substantial
consideration
14
—the law is settled that the assets of the
merging companies vest in the resulting company by
operation of law.
15
And even the majority admits that a
merger results in the transfer of assets by operation of
law.
16
Thus, the majority’s conclusion that a transfer by
operation of law can only occur involuntarily simply
does not follow.
Moreover, the majority’s conclusion that operation-
of-law transfers must be fully involuntary ignores the
standards applicable to the most fundamental
operation-of-law transactions. Surely the majority
would agree that transfers accomplished by intestacy or
14
For example, when AOL and Time Warner merged on January 10,
2000, in the largest merger in history, AOL purchased Time Warner for
$165 billion to facilitate the merger. Both companies intended to enter
the deal, and hefty consideration was paid. See Hansell, Media
Megadeal: The Overview; America Online Agrees to Buy Time Warner
for $165 Billion; Media Deal is Richest Merger, NY Times, January 11,
2000, available at <http://nytimes.com/2000/1/11/business/
media-megadeal-overview-america-online-agrees-buy-time-warner-for-
165-billion.html> (accessed December 20, 2012).
15
See 12 USC 215(e) (“All rights, franchises, and interests of the
individual consolidating banks or banking associations in and to every
type of property (real, personal, and mixed) and choses in action shall be
transferred to and vested in the consolidated national banking associa-
tion by virtue of such consolidation without any deed or other transfer.”);
MCL 450.1724(b) (“The title to all real estate and other property and
rights owned by each corporation party to the merger are vested in the
surviving corporation without reversion or impairment.”).
16
Ante at 111 (“Had a merger occurred...,defendant would have a
strong argument that it had merely stepped into the shoes of WaMu.”).
The majority further states that the FDIC could have merged WaMu and
Chase pursuant to 12 USC 1821(d)(2)(G)(i)(I) without Chase’s consent.
But the statute in no way proposes that the FDIC could merge a failed
bank and a healthy bank without the healthy bank’s consent. On the
contrary, it is 12 USC 1821(d)(2)(G)(i)(II) that allows transfers without
approval. The majority’s concept of a forced merger utterly lacks a
statutory basis and further demonstrates the majority’s misunderstand-
ing of the FDIC’s authority.
126 493 M
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a joint tenancy occur by operation of law.
17
Yet neither of
these traditional operation-of-law transfers can be com-
pleted without the affirmative decision of the recipient
to accept the property.
18
Michigan law allows a party to
disclaim an operation-of-law conveyance.
19
Thus, a
transfer by operation of law cannot occur unless the
recipient voluntarily decides not to exercise his or her
right to disclaim the conveyance. Our sister court in
New Hampshire eloquently described the rationale be-
hind a right of disclaimer:
[W]e held that a devisee has the power to renounce a
testamentary gift. An intestate heir also may disclaim an
intestate share under our common law. The same is true of
a right of survivorship in a joint tenancy....Themotivat-
ing factor permitting renunciation of these interests is that
one should not be forced to accept burdensome, unbar-
gained for tenders.
[
20
]
17
See, e.g., Simon v Simon’s Estate, 158 Mich 256, 259; 122 NW 544
(1909) (“The property of one dying intestate goes, by operation of positive
law,... to certain persons in certain shares.”); Klooster v City of
Charlevoix, 488 Mich 289, 303; 795 NW2d 578 (2011) (“When one of only
two joint tenants dies, an estate in land passes by operation of law to the
survivor.”).
18
It is also worth noting that both types of transfers occur pursuant to
statutory authority. MCL 700.2101(1) (“Any part of a decedent’s estate
not effectively disposed of by will passes by intestate succession to the
decedent’s heirs as prescribed in this act . . . .”) (emphasis added); Title of
1925 PA 126, MCL 557.81 et seq. (“An act to provide for the payment to
the survivor of husband and wife, of land contracts, and of notes and
other obligations secured by a mortgage, given as part of the purchase
price of lands held as a tenancy by the entirety, and the vesting of the title
of the mortgage or land contract in the survivor.”); MCL 491.616(2)
(creating a joint tenancy in multiperson bank accounts unless specified
otherwise).
19
MCL 700.2901 to 700.2912.
20
In re Lamson Estate, 139 NH 732, 733-734; 662 A2d 287 (1995)
(citations omitted); see also Nat’l City Bank of Evansville v Oldham, 537
NE2d 1193, 1197 (Ind App, 1989) (“Generally speaking, legal title to real
property devised by will vests in the devisee upon the decedent’s death by
2012] K
IM V
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,NA 127
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By similar logic, the fact that Chase could have refused,
but voluntarily accepted, the transfer does not destroy
its character as an operation-of-law transaction.
Having established that a transfer by operation of
law need not be involuntary, I have no trouble conclud-
ing that the instant transaction was completed by
operation of law. I am also not troubled by the conclu-
sion that the FDIC/Chase transaction was for all intents
and purposes the equivalent of a merger. By this trans-
action, Chase absorbed substantially all of WaMu’s
assets and liabilities. In a September 25, 2008, press
release announcing the transaction, FDIC Chairman
Sheila C. Bair called the transaction “simply a combi-
nation of two banks.”
21
Chase did not sort through the
various assets of WaMu and pick and choose only the
most appealing items; it absorbed the entire bank
except for very select assets and liabilities that re-
mained with the receiver.
22
The first page of the
operation of law. It has long been recognized, however, that a person
cannot be forced to accept property against his will and therefore a
transfer of title is not complete until it is accepted by the recipient.”)
(citations omitted); 20 Am Jur 2d, Cotenancy and Joint Ownership, § 4
(“Under the Uniform Disclaimer of Property Interests Act, a surviving
joint tenant may disclaim the transfer of any property or interest by right
of survivorship by delivering a written disclaimer. The purpose of
allowing such disclaimer is that one should not be forced to accept
burdensome, unbargained-for tenders.”).
21
FDIC, Press Release, JPMorgan Chase Acquires Banking Operations
of Washington Mutual, September 25, 2008, available at <http://
www.fdic.gov/news/news/ press/2008/pr08085.html> (accessed December
20, 2012) (emphasis added).
22
See, e.g., schedule 3.5 of the purchase and assumption (P&A)
agreement, captioned “Certain Assets Not Purchased” (excluding only
payouts on or refunds for insurance policies, actions or judgments
against directors or underwriters of the failed bank, leased premises,
fixtures, and equipment, and criminal/restitution orders in favor of
the failed bank from the agreement); schedule 2.1 of the P&A
agreement, captioned “Certain Liabilities Not Assumed” (excluding
only preferred stock and pending litigation against WaMu, subordi-
128 493 M
ICH
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purchase and assumption (P&A) agreement indicates
that Chase acquired much more than a loan portfolio,
stating that with the FDIC acting as the conduit, it
received “substantially all of the assets and as-
sum[ed] all deposit and substantially all other liabili-
ties” of WaMu.
23
And while the P&A agreement
established the framework for the transfer, the actual
transaction was completed under the FDIC’s statu-
tory authority to transfer assets and liabilities “with-
out any approval, assignment, or consent....”
24
Having received the assets and liabilities without any
assignment, Chase stepped into WaMu’s shoes and
began occupying WaMu’s legal status. While this
conclusion is perhaps the result of a legal fiction, like
a merger, this is the manner in which the law treats
these transactions. Accordingly, no further formali-
ties were necessary to vest the rights Chase acquired
from WaMu because, as with a merger, they vested
upon completion of the deal.
At its heart, the majority’s and the Court of Appeals’
errors are in redefining this transaction, giving short
shrift to the specialized context in which it occurred.
The FDIC and Chase did not execute a simple contrac-
tual sale; it was a transfer of assets and liabilities
consummated without any assignments that only could
have been completed under the FDIC’s statutory au-
thority for resolving failed banks. Accordingly, I would
nated and senior debt, some employee benefit plans sponsored by
WaMu’s holding company, and certain deferred compensation and
consulting agreements maintained by WaMu).
23
See also Brooks, The Federal Deposit Insurance System: The past and
the potential for the future, 5 Ann R Banking L 111, 112 (1986) (“A
purchase and assumption transaction is a merger of the failing bank into
a successful bank; the successful bank assumes all deposit liabilities of
the failing bank.”).
24
12 USC 1821(d)(2)(G)(i)(II).
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hold that Chase acquired plaintiffs’ mortgage by opera-
tion of law.
25
II. THE RECORDING REQUIREMENT OF MCL 600.3204(3)
DOES NOT APPLY TO TRANSACTIONS PROPERLY COMPLETED
WITHOUT ASSIGNMENT, INCLUDING MORTGAGES ACQUIRED
BY OPERATION OF LAW
MCL 600.3204 provides the requirements for foreclo-
sure by advertisement. MCL 600.3204(1) lists the four
general requirements before a mortgagee can foreclose:
(a) A default in a condition of the mortgage has oc-
curred, by which the power to sell became operative.
(b) An action or proceeding has not been instituted, at
law, to recover the debt secured by the mortgage or any
part of the mortgage; or, if an action or proceeding has been
instituted, the action or proceeding has been discontinued;
or an execution on a judgment rendered in an action or
proceeding has been returned unsatisfied, in whole or in
part.
(c) The mortgage containing the power of sale has been
properly recorded.
(d) The party foreclosing the mortgage is either the
owner of the indebtedness or of an interest in the indebt-
edness secured by the mortgage or the servicing agent of
the mortgage.
MCL 600.3204(3) states an additional requirement:
If the party foreclosing a mortgage by advertisement is
not the original mortgagee, a record chain of title shall
exist prior to the date of sale under [MCL 600.3216]
25
Alternatively, as fully explained in part II of this opinion, I question
whether the majority’s conclusion that the transfer did not occur by
operation of law resolves the matter. Indeed, the operative recording
statute, MCL 600.3204(3), only requires the recordation of mortgages
that have been assigned, and pursuant to 12 USC 1821(d)(2)(G)(i)(II), the
mortgage here was transferred without an assignment.
130 493 M
ICH
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[setting the conditions for the sheriff’s sale] evidencing the
assignment of the mortgage to the party foreclosing the
mortgage.
Chase was exempt from the requirements of MCL
600.3204(3) because it obtained the mortgage by
operation of law. The key phrase in making this
determination is “evidencing the assignment.” If
there has been no assignment—i.e., if the mortgage
was transferred by operation of law—then there can
be no chain of title because the party holding the
mortgage is, by law, the original mortgagee. This is so
even if the party holding the mortgage was not the
party that actually recorded the mortgage. In other
words, the statute implies that when no assignment
has occurred, the party holding the mortgage has
stepped into the shoes of the original mortgagee.
When there has been no assignment of a mortgage,
there can be no assignment to record. Accordingly,
because Chase acquired the plaintiffs’ mortgage by
operation of law instead of by assignment, and was
thus legally considered the original mortgagee, it was
not required to record anything in the chain of title.
Michigan law has long recognized that only transfers
completed by assignment need to be recorded before
foreclosure by advertisement is permitted. In the 1885
decision of Miller v Clark, this Court analyzed the
foreclosure-by-advertisement statute and determined
that mortgages obtained by operation of law need not be
recorded before foreclosure by advertisement is permit-
ted.
26
In Miller, the mortgagee was an individual who
died with the mortgage passing as part of his estate to
26
Miller, 56 Mich at 337. The foreclosure-by-advertisement statute in
effect in 1885, 1871 CL 6913, contained different language than the
current statute but similarly required the recordation of mortgage
assignments before foreclosure was permitted.
2012] K
IM V
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ANK
,NA 131
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,J.
the guardian of his heirs.
27
The guardian foreclosed on
the mortgage without recording it.
28
This Court, in
discussing whether the recording requirement applied
to the peculiar way that the guardian came to possess
the mortgage without an assignment, held that “[t]he
assignments which are required to be recorded are
those which are executed by the voluntary act of the
party, and this does not apply to cases where the title is
transferred by operation of law ....”
29
So if there is no
assignment to record because the mortgage passed by
operation of law, then the recording requirement does
not apply.
30
Because Chase obtained the plaintiffs’ mort-
gage without an assignment pursuant to the FDIC’s
27
Id. at 339-340.
28
Id. at 340.
29
Id. at 340-341 (emphasis added). The majority relies on this quote to
erroneously conclude that a transfer by operation of law must be
involuntary. But Miller made no such determination. The quoted lan-
guage only held that voluntary assignments must be recorded, making no
determination whatsoever with respect to voluntary operation-of-law
transactions like corporate mergers or the transfer that took place here.
The majority also concludes that the rule of Miller does not control
because the recording requirement has been modified and the “triggering
mechanisms for recordation” are different now than when Miller was
decided, with the mechanism now being only that the foreclosing party “is
not the original mortgagee.” As explained earlier, this errant focus on the
“triggering mechanisms” prevents the majority from viewing the statute as
a whole and ignores the fact that MCL 600.3204(3) still only requires a
recording to exist “evidencing the assignment.” Again, one cannot evidence
an assignment that does not exist and need not exist to effectuate the
transfer. An assignment is thus necessary both under MCL 600.3204 as it
exists now and as its predecessor provided when Miller was decided.
30
Michigan’s Attorney General reiterated the Miller holding in 2004,
stating that “[a] mortgagee cannot validly foreclose a mortgage by
advertisement unless the mortgage and all assignments of that mortgage
(except those assignments effected by operation of law) are entitled to be,
and have been, recorded.” OAG, 2003-2004, No 7147, p 93 (January 9,
2004) (emphasis added). When the Attorney General made this state-
ment, the recording requirement was found in MCL 600.3204(1)(c) but
132 493 M
ICH
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statutory authority, MCL 600.3204(3) did not require
Chase to record the mortgage before foreclosing.
Alternatively, it is not at all clear that the transfer
must even be characterized as one completed by opera-
tion of law to be exempt from the recordation require-
ment of MCL 600.3204(3). Indeed, the statutory lan-
guage itself does not explicitly exempt transfers
completed by operation of law; instead, it requires
recordation when there is an assignment.
31
So in 1885,
when this Court held that an operation-of-law transac-
tion was exempt from the recordation requirement, it
did so not because the transaction was completed by
operation of law but because the transaction was not an
assignment.
32
Thus, even if the instant transaction was
not by operation of law per se, it would still be exempt
from the recording statute if no recordable assignment
existed. And indeed, pursuant to 12 USC
1821(d)(2)(G)(i)(II), the FDIC transferred WaMu’s as-
sets to Chase without an assignment. So even accepting
the majority’s conclusion that this was not a transfer by
operation of law, MCL 600.3204(3) would still not apply
because no assignment existed and none was necessary
to complete the transfer.
33
used the same language as the current statute. MCL 600.3204(1)(c), as
amended by 1994 PA 397, provided in relevant part:
The mortgage containing the power of sale has been properly
recorded and, if the party foreclosing is not the original mortgagee,
a record chain of title exists evidencing the assignment of the
mortgage to the party foreclosing the mortgage.
31
The original statute, 1871 CL 6913, required recording if the
mortgage had been assigned; the current statute, MCL 600.3204(3)
requires a recording “evidencing the assignment.”
32
See Miller, 56 Mich at 337.
33
In responding to this alternative argument, the majority states that
a record chain of title must exist before foreclosure is permitted, yet it
does not say what should be recorded in the chain of title to “evidenc[e]
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ANK
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III. CONCLUSION
By redefining the character of the transaction be-
tween the FDIC and Chase, the majority, like the Court
of Appeals before it, erroneously concludes that it was
an ordinary contractual sale rather than a specialized
transfer by operation of law. In reality, the transaction
was possible only because of the FDIC’s special statu-
tory powers for resolving the business of a failed bank
like WaMu. Moreover, Chase was not required to record
the mortgage before foreclosing because it obtained the
mortgage by operation of law and stepped into WaMu’s
shoes as the original mortgagee. Thus, the recording
requirement of the foreclosure-by-advertisement stat-
ute was inapplicable. Accordingly, I respectfully dissent
and would reverse the judgment of the Court of Ap-
peals.
34
Y
OUNG
, C.J., and M
ARY
B
ETH
K
ELLY
, J., concurred with
Z
AHRA
,J.
the assignment” as required by MCL 600.3204(3). Here, no assignment
occurred, so nothing exists that can be recorded in the chain of title.
Indeed, under the majority’s construction, Chase could never satisfy
MCL 600.3204(3) because it is not the original mortgagee, but it also
lacks the ability to record an assignment in the chain of title.
34
Because I conclude that no defect existed in the foreclosure, it is
unnecessary for me to decide whether a defect in the foreclosure renders
the foreclosure sale voidable or void ab initio. However, because the
majority reaches this issue, I note my agreement with the majority’s
reasoning on this issue and conclusion that “defects or irregularities in a
foreclosure proceeding result in a foreclosure that is voidable, not void ab
initio.” Ante at 115.
134 493 M
ICH
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AHRA
,J.
STATE OF MICHIGAN v McQUEEN
Docket No. 143824. Argued October 11, 2012 (Calendar No. 7). Decided
February 8, 2013.
On behalf of the state of Michigan, the Isabella County Prosecuting
Attorney filed a complaint in the Isabella Circuit Court for a
temporary restraining order, a show-cause order, a preliminary
injunction, and a permanent injunction, seeking to enjoin the
operation of Compassionate Apothecary, LLC (CA), a medical-
marijuana dispensary that was owned and operated by Brandon
McQueen and Matthew Taylor. McQueen was a registered quali-
fying patient and a registered primary caregiver for three qualify-
ing patients under the Michigan Medical Marihuana Act (MMMA),
MCL 333.26421 et seq. Taylor was the registered primary caregiver
for two qualifying patients. They operated CA as a membership
organization. To be a member of CA, an individual had to be either
a registered qualifying patient or a registered primary caregiver.
Caregivers could only be members of CA if a qualifying patient
with whom he or she was connected through the state’s registra-
tion process was also a member. Patients and caregivers who were
members of CA could rent lockers from CA. Patients would rent
lockers from CA when they had grown more marijuana than they
needed to treat their own debilitating medical conditions and
wanted to make the excess available to other patients. Caregivers
would rent lockers when their patients did not need all the
marijuana that they had grown. Patients and caregivers desiring
to purchase marijuana from another member’s locker could view
the available marijuana strains in CA’s display room. After the
patient or caregiver had made a selection, a CA employee would
retrieve the marijuana from the appropriate locker, weigh and
package the marijuana, and record the purchase. The price of the
marijuana would be set by the member who rented the locker, but
CA kept a service fee for each transaction. The prosecuting
attorney alleged that McQueen and Taylor’s operation of CA did
not comply with the MMMA, was contrary to the Public Health
Code (PHC), MCL 333.1101 et seq., and, thus, was a public
nuisance. The court, Paul H. Chamberlin, C.J., denied the pros-
ecuting attorney’s requests for a temporary restraining order and
a show-cause order. After a hearing, the court further denied the
M
ICHIGAN V
M
C
Q
UEEN
135
prosecuting attorney’s request for a preliminary injunction and
closed the case, concluding that the operation of CA was in
compliance with the MMMA because the patient-to-patient trans-
fers of marijuana that CA facilitated fell within the act’s definition
of the “medical use” of marijuana. The prosecuting attorney
appealed. The Court of Appeals, M
URRAY
, C.J., and H
OEKSTRA
and
S
TEPHENS
, JJ., reversed and remanded for entry of judgment in
favor of the prosecuting attorney, concluding that defendants’
operation of CA was an enjoinable public nuisance because the
operation of CA violated the PHC, which prohibits the possession
and delivery of marijuana. The Court of Appeals reasoned that
defendants’ violation of the PHC was not excused by the MMMA
because defendants did not operate CA in accordance with the
provisions of the MMMA—specifically, the Court explained that
McQueen and Taylor had engaged in the sale of marijuana through
their operation of CA, that the “medical use” of marijuana, as
defined by the MMMA, does not include patient-to-patient sales of
marijuana, and that no other provision of the MMMA could be
read to permit such sales. 293 Mich App 644 (2011). The Supreme
Court granted defendants leave to appeal. 491 Mich 890 (2012).
In an opinion by Chief Justice Y
OUNG
, joined by Justices
M
ARKMAN
,M
ARY
B
ETH
K
ELLY
, and Z
AHRA
, the Supreme Court held:
Contrary to the conclusion of the Court of Appeals, the defini-
tion of “medical use” in the MMMA includes the sale of marijuana.
However, the Court of Appeals reached the correct result because
the act does not permit a registered qualifying patient to transfer
marijuana for another registered qualifying patient’s medical use.
Accordingly, the prosecuting attorney was entitled to injunctive
relief to enjoin the operation of defendants’ business because it
constituted a public nuisance.
1. The MMMA authorizes the medical use of marijuana to the
extent that it is carried out in accordance with the provisions of
the act. Section 3(e) of the act, MCL 333.26423(e), defines “medi-
cal use” broadly to include the transfer of marijuana to treat or
alleviate a registered qualifying patient’s debilitating medical
condition or symptoms associated with the debilitating medical
condition. Because a transfer is any mode of disposing of or parting
with an asset or an interest in an asset, including the payment of
money, the word “transfer,” as part of the statutory definition of
“medical use,” also includes sales. The Court of Appeals erred by
concluding that a sale of marijuana was not a medical use, and that
portion of its judgment was reversed.
2. Under § 7(a) of the MMMA, MCL 333.26427(a), any medical
use of marijuana must occur in accordance with the provisions of
136 493 M
ICH
135 [Feb
the act. Absent a situation triggering the affirmative defense of § 8
of the MMMA (MCL 333.26428), § 4 of the act (MCL 333.26424)
sets forth the requirements for a person to be entitled to immunity
for the medical use of marijuana. MCL 333.26424(d) creates a
presumption of medical use and then states how that presumption
may be rebutted. A rebutted presumption of medical use renders
immunity under § 4 of the MMMA inapplicable. Under the statute,
the presumption may be rebutted upon a showing that the conduct
related to marijuana was not for the purpose of alleviating the
qualifying patient’s debilitating medical condition or symptoms
associated with the medical condition in accordance with the act.
The definite article in § 4(d) refers to the qualifying patient who is
asserting § 4 immunity. Because the MMMA’s immunity provision
contemplates that a registered qualifying patient’s medical use of
marijuana only occur for the purpose of alleviating his or her own
debilitating medical condition or symptoms associated with that
condition, and not another patient’s condition or symptoms, § 4
does not authorize a registered qualifying patient to transfer
marijuana to another registered qualifying patient. Similarly, to be
eligible for § 4 immunity, a registered primary caregiver must be
engaging in marijuana-related conduct for the purpose of alleviat-
ing the debilitating medical condition, or symptoms associated
with the medical condition, of a registered qualifying patient to
whom the caregiver is connected through the registration process
of Michigan’s Department of Community Health. Thus, § 4 does
not offer immunity to a registered primary caregiver who transfers
marijuana to anyone other than a registered qualifying patient to
whom the caregiver is connected through the state’s registration
process. Defendants’ business facilitated patient-to-patient sales,
but those transfers did not qualify for § 4 immunity because they
encompassed marijuana-related conduct that was not for the
purpose of alleviating the transferor’s debilitating medical condi-
tion or its symptoms. Because defendants’ medical use of mari-
juana did not comply with the immunity provisions of §§ 4(a), (b),
and (d), defendants could not claim that § 4 insulated them from a
public nuisance claim.
3. Section 4(i) of the MMMA, MCL 333.26424(i), permits any
person to assist a registered qualifying patient with using or
administering marijuana, but the terms “using” and “administer-
ing” are limited to conduct involving the actual ingestion of
marijuana. Section 4(i) did not apply to defendants’ actions, which
involved assisting patients with acquiring and transferring mari-
juana.
2013] M
ICHIGAN V
M
C
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UEEN
137
4. The affirmative defense of § 8 of the MMMA, MCL
333.26428, applies only to criminal prosecutions involving mari-
juana, subject to limited exceptions contained in § 8(c) for disci-
plinary action by a business or occupational or professional licens-
ing board or bureau or forfeiture of any interest in or right to
property. Accordingly, § 8 did not provide defendants a basis to
assert that their actions were in accordance with the MMMA.
5. Under MCL 600.3801, any building used for the unlawful
manufacture, transporting, sale, keeping for sale, bartering, or
furnishing of any controlled substance as defined in MCL
333.7104 is declared a nuisance. Marijuana is a controlled
substance under MCL 333.7104. Because the medical use of
marijuana is allowed under state law to the extent that it is
carried out in accordance with the MMMA, the MMMA con-
trolled whether defendants’ business constituted a public nui-
sance. While the Court of Appeals erred by excluding sales from
the definition of “medical use,” it correctly concluded that the
MMMA does not contemplate patient-to-patient sales of mari-
juana for medical use and that by facilitating such sales,
defendants’ business constituted a public nuisance.
Court of Appeals’ decision affirmed on alternative grounds.
Justice C
AVANAGH
, dissenting, disagreed with the majority’s
interpretation of the MMMA and would have held that when a
qualified patient transfers marijuana to another qualified patient,
both individuals have the right to assert immunity under § 4 of the
act. The presumption that a qualifying patient or primary car-
egiver is engaged in the medical use of marijuana may be rebutted
with evidence that the conduct related to marijuana was not for
the purpose of alleviating the qualifying patient’s medical condi-
tion. The majority reasoned that the reference to “the” qualified
patient requires the conclusion that only the recipient of mari-
juana is entitled to § 4 immunity for a patient-to-patient transfer
of marijuana. The majority’s interpretation was inconsistent with
the rules of statutory interpretation and with the purpose of the
MMMA. The reference in § 4(d)(2) of the act to “the” qualifying
patient simply requires that one of the two qualified patients
involved in the transfer of marijuana have a debilitating medical
condition that the transfer of marijuana is intended to alleviate.
The majority’s erroneous interpretation of § 4(d) further led it to
an incorrect conclusion that any facilitation of a patient-to-patient
transfer of marijuana was enjoinable as a public nuisance.
Justice M
C
C
ORMACK
took no part in the decision of this case.
138 493 M
ICH
135 [Feb
1. C
ONTROLLED
S
UBSTANCES —
M
ARIJUANA —
M
EDICAL
M
ARIJUANA —
M
EDICAL
-
U
SE
D
EFINED —
S
ALES OF
M
ARIJUANA
.
The Michigan Medical Marihuana Act authorizes the medical use of
marijuana to the extent that it is carried out in accordance with the
provisions of the act; § 3(e) of the act, MCL 333.26423(e), defines
“medical use” broadly to include the transfer of marijuana to treat or
alleviate a registered qualifying patient’s debilitating medical condi-
tion or symptoms associated with the debilitating medical condition;
because a transfer is any mode of disposing of or parting with an asset
or an interest in an asset, including the payment of money, the
definition of “medical use” includes sales of marijuana.
2. C
ONTROLLED
S
UBSTANCES —
M
ARIJUANA —
M
EDICAL
M
ARIJUANA —
I
MMUNITY —
R
EQUIREMENTS FOR
I
MMUNITY —
S
ALES OF
M
ARIJUANA
.
Section 4 of the Michigan Medical Marihuana Act, MCL 333.26424, sets
forth the requirements for a person to be entitled to immunity for the
medical use of marijuana; to be eligible for immunity under § 4, a
registered qualifying patient must be engaging in marijuana-related
conduct for the purpose of alleviating the patient’s own debilitating
medical condition or symptoms associated with that condition; § 4
does not authorize a registered qualifying patient to transfer mari-
juana to another registered qualifying patient; similarly, to be eligible
for § 4 immunity, a registered primary caregiver must be engaging in
marijuana-related conduct for the purpose of alleviating the debili-
tating medical condition, or symptoms associated with the medical
condition, of a registered qualifying patient to whom the caregiver is
connected through the registration process of Michigan’s Depart-
ment of Community Health; § 4 does not offer immunity to a
registered primary caregiver who transfers marijuana to anyone
other than a registered qualifying patient to whom the caregiver is
connected through the state’s registration process.
3. C
ONTROLLED
S
UBSTANCES —
M
ARIJUANA —
M
EDICAL
M
ARIJUANA —
A
SSISTING
R
EGISTERED
Q
UALIFYING
P
ATIENTS
W
ITH
U
SING OR
A
DMINISTERING
M
ARI-
JUANA
.
Section 4(i) of the Michigan Medical Marihuana Act, MCL
333.26424(i), permits any person to assist a registered qualifying
patient with using or administering marijuana, but the terms
“using” and “administering” are limited to conduct involving the
actual ingestion of marijuana.
4. C
ONTROLLED
S
UBSTANCES —
M
ARIJUANA —
M
EDICAL
M
ARIJUANA —
A
FFIRMATIVE
D
EFENSE —
A
PPLICABILITY OF THE
A
FFIRMATIVE
D
EFENSE
.
The affirmative defense of § 8 of the Michigan Medical Marihuana
Act, MCL 333.26428, applies only to criminal prosecutions involv-
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ing marijuana, subject to limited exceptions contained in § 8(c) for
disciplinary action by a business or occupational or professional
licensing board or bureau or forfeiture of any interest in or right to
property.
Risa N. Scully, Prosecuting Attorney, for plaintiff.
Alane & Chartier, P.L.C. (by Mary Chartier and
Natalie Alane), and Newburg Law, PLLC (by Matthew
Newburg and Eric Misterovich), for defendants.
Amici Curiae:
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Heather S. Meingast and John R. Wright,
Assistant Attorneys General, for the Attorney General.
Gerald A. Fisher for the Michigan Municipal League,
the Michigan Townships Association, and the Public
Corporation Law Section of the State Bar of Michigan.
David P. Cahill, Dennis M. Hayes, and Rosemary
Gordon Pánuco for Ann Arbor Medical Cannabis Guild,
Inc.
Y
OUNG
, C.J. In this public nuisance action, we must
determine whether defendants’ business, which facili-
tates patient-to-patient sales of marijuana, operates in
accordance with the provisions of the Michigan Medical
Marihuana Act (MMMA).
1
We hold that it does not and
that, as a result, the Court of Appeals reached the
correct result when it ordered that defendants’ business
be enjoined as a public nuisance.
The MMMA authorizes “[t]he medical use of mari-
huana...totheextent that it is carried out in accor-
1
MCL 333.26421 et seq.
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dance with the provisions of [the] act.”
2
Section 3(e) of
the act defines “medical use” broadly to include the
“transfer” of marijuana “to treat or alleviate a regis-
tered qualifying patient’s debilitating medical condition
or symptoms associated with the debilitating medical
condition.”
3
Because a transfer is “[a]ny mode of dis-
posing of or parting with an asset or an interest in an
asset, including...the payment of money,”
4
the word
“transfer,” as part of the statutory definition of “medi-
cal use,” also includes sales. The Court of Appeals erred
by concluding that a sale of marijuana was not a
medical use.
Nevertheless, the immunity from arrest, prosecu-
tion, or penalty provided to a registered qualifying
patient in § 4 of the MMMA for engaging in the medical
use of marijuana can be rebutted upon a showing “that
conduct related to marihuana was not for the purpose of
alleviating the qualifying patient’s debilitating medical
condition or symptoms associated with the debilitating
medical condition, in accordance with this act.”
5
Be-
cause the MMMA’s immunity provision clearly contem-
plates that a registered qualifying patient’s medical use
of marijuana only occur for the purpose of alleviating
his own debilitating medical condition or symptoms
associated with his debilitating medical condition, and
not another patient’s condition or symptoms, § 4 does
not authorize a registered qualifying patient to transfer
marijuana to another registered qualifying patient.
Accordingly, while the Court of Appeals erred by exclud-
2
MCL 333.26427(a).
3
MCL 333.26423(e).
4
Black’s Law Dictionary (8th ed), p 1535 (emphasis added); see also
Random House Webster’s College Dictionary (2d ed, 1997), p 1366
(defining “transfer” as “to convey or remove from one place, person, or
position to another”).
5
MCL 333.26424(d) (emphasis added).
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ing sales from the definition of “medical use,” we affirm
on alternative grounds its conclusion that the MMMA
does not contemplate patient-to-patient sales of mari-
juana for medical use and that, by facilitating such
sales, defendants’ business constituted a public nui-
sance.
I. FACTS AND PROCEDURAL HISTORY
Defendants Brandon McQueen and Matthew Taylor
own and operate C.A., LLC (hereinafter CA), formerly
known as Compassionate Apothecary, LLC, a members-
only medical marijuana dispensary located in Isabella
County. McQueen is both a registered qualifying patient
and a registered primary caregiver within the meaning
of the MMMA,
6
while Taylor is a registered primary
caregiver. Their stated purpose in operating CA is to
“assist in the administration of [a] member patient’s
medical use” of marijuana.
CA requires every member to be either a registered
qualifying patient or registered primary caregiver pur-
suant to § 6 of the MMMA and to possess a valid,
unexpired medical marijuana registry identification
card from the Michigan Department of Community
Health (MDCH).
7
CA’s basic membership fee of $5 a
month allows a member to access CA’s services. For an
additional fee, a member can rent one or more lockers
6
A “qualifying patient” is defined in the MMMA as “a person who has
been diagnosed by a physician as having a debilitating medical condi-
tion.” MCL 333.26423(h). A “primary caregiver” is defined as “a person
who is at least 21 years old and who 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). The patient and caregiver
registration processes are outlined in MCL 333.26426.
7
Moreover, according to defendants, a registered primary caregiver can
only become a member if the caregiver’s patient is also a member and
authorizes the caregiver to become a member.
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to store up to 2.5 ounces of marijuana and make that
marijuana available to other CA members to purchase.
8
The member sets the sale price of his marijuana,
9
and
defendants retain a percentage of that price (about 20
percent) as a service fee. Defendants and their employ-
ees retain access at all times to the rented lockers,
although the member may remove his marijuana from
the lockers during business hours if he no longer wishes
to make it available for sale.
10
All CA members may purchase marijuana from other
members’ lockers.
11
A member who wishes to purchase
marijuana for himself (or, if the member is a registered
primary caregiver, for his patient) must show his unex-
pired MDCH qualifying patient or primary caregiver
registry identification card when entering CA. A repre-
sentative of CA—either one of the individual defen-
dants or an employee—will then take the member to
the display room, where a variety of strains are avail-
able for purchase.
12
The member makes a selection, and
the CA representative measures and weighs the mari-
juana, packages it, seals it, and records the transaction.
CA opened for business in May 2010. In July 2010,
the Isabella County Prosecuting Attorney, on behalf of
the state of Michigan, filed a complaint in the Isabella
8
In order to rent a locker, the member must expressly authorize CA to
sell the marijuana stored in that locker to other CA members.
9
The sale price of marijuana at CA ranges from $7 a gram to $20 a
gram.
10
Defendants supervised four employees, but it is not clear from the
record whether the employees were either registered qualifying patients
or registered primary caregivers.
11
CA does not allow a member to purchase more than 2.5 ounces over
a 14-day period.
12
The police officer who initially made contact with defendants testi-
fied that, in addition to “displays of various marijuana with prices,” the
display room also contained brownies “and other ingestible products.”
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Circuit Court, alleging that defendants’ business con-
stitutes a public nuisance because it does not comply
with the MMMA. The complaint sought a temporary
restraining order, a preliminary injunction, and a per-
manent injunction. After holding a two-day evidentiary
hearing, the circuit court denied plaintiff’s request for a
preliminary injunction. The court found that defen-
dants “properly acquired registry identification cards,”
that they “allow only registered qualifying patients and
registered primary caregivers to lease lockers,” and that
the patients or caregivers possess permissible amounts
of marijuana in their lockers. Moreover, the court found
that defendants themselves “do not possess amounts of
marihuana prohibited by the MMMA.”
The court further determined that “the registered
qualifying patients and registered caregivers perform
medical use of the marihuana by transferring the
marihuana within the lockers to other registered quali-
fying patients and registered primary caregivers.” The
court noted that plaintiff had “failed to provide any
evidence that defendants’ medical marihuana related
conduct was not for the purpose of alleviating any
qualifying patient’s debilitating medical condition or
symptoms associated with the debilitating medical con-
dition.” As a result, “the patient-to-patient transfers
and deliveries of marihuana between registered quali-
fying patients fall soundly within medical use of mari-
huana as defined by the MMMA.” The court then
determined that § 4 of the MMMA expressed the intent
“to permit...patient-to-patient transfers and deliver-
ies of marihuana between registered qualifying patients
in order for registered qualifying patients to acquire
permissible medical marihuana to alleviate their debili-
tating medical conditions and their respective symp-
toms.” Finally, it noted that “[e]ssentially, defendants
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assist with the administration and usage of medical
marihuana, which the Legislature permits under the
MMMA.”
13
The Court of Appeals reversed the circuit court’s
decision and remanded for entry of judgment in favor of
plaintiff.
14
The Court concluded that two of the circuit
court’s findings of fact were clearly erroneous. First, it
concluded that possession of marijuana is not contin-
gent on having an ownership interest in the marijuana
and that, because “defendants exercise dominion and
control over the marijuana that is stored in the lock-
ers,” they “possess the marijuana that is stored in the
lockers.”
15
Second, the Court concluded that defendants
were engaged in the selling of marijuana because defen-
dants (or their employees) “intend for, make possible,
and actively engage in the sale of marijuana between
CA members,” even though they do not themselves own
the marijuana that they sell.
16
The Court concluded that the MMMA does not allow
patient-to-patient sales. After noting that the MMMA
“has no provision governing the dispensing of mari-
juana,”
17
the Court explained that the definition of
“medical use” does not encompass the sale of mari-
juana, because it only allows the “delivery” and “trans-
fer” of marijuana, not its sale, which “consists of the
delivery or transfer plus the receipt of compensation.”
18
In reaching this conclusion, the Court reasoned that
13
The court also noted that the issue of marijuana dispensaries “[was]
not before the court” because this case involved “patient-to-patient
transfers.”
14
Michigan v McQueen, 293 Mich App 644; 811 NW2d 513 (2011).
15
Id. at 654.
16
Id. at 655.
17
Id. at 663.
18
Id. at 668.
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§ 4(e), which allows a caregiver to receive compensation
but mandates that “[a]ny such compensation shall not
constitute the sale of controlled substances,”
19
would be
unnecessary if the definition of “medical use” encom-
passed sales.
20
Finally, the Court noted that defendants
are not entitled to immunity under § 4(i) of the MMMA,
which insulates from liability someone who assists a
registered qualifying patient “with using or administer-
ing marihuana.”
21
It explained that “[t]here is no evi-
dence that defendants assist patients in preparing the
marijuana to be consumed” or that they “physically aid
the purchasing patients in consuming marijuana.”
22
As
a result, it concluded that plaintiff was entitled to a
preliminary injunction, and it reversed the circuit
court’s ruling.
This Court granted defendants’ application for leave
to appeal and requested that the parties brief “whether
the Michigan Medical Marihuana Act (MMMA), MCL
333.26421 et seq., permits patient-to-patient sales of
marijuana.”
23
II. STANDARD OF REVIEW
We review for an abuse of discretion the decision to
deny a preliminary injunction,
24
but we review de novo
questions regarding the interpretation of the MMMA,
25
which the people enacted by initiative petition in No-
19
MCL 333.26424(e).
20
McQueen, 293 Mich App at 669.
21
MCL 333.26424(i).
22
McQueen, 293 Mich App at 673.
23
Michigan v McQueen, 491 Mich 890 (2012).
24
Pontiac Fire Fighters Union Local 376 v City of Pontiac, 482 Mich 1,
8; 753 NW2d 595 (2008).
25
People v Kolanek, 491 Mich 382, 393; 817 NW2d 528 (2012).
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vember 2008.
26
“[T]he intent of the electors governs”
the interpretation of voter-initiated statutes,
27
just as
the intent of the Legislature governs the interpretation of
legislatively enacted statutes.
28
The first step in interpret-
ing a statute is to examine the statute’s plain language,
which provides “ ‘the most reliable evidence of... in-
tent....’”
29
“If the statutory language is unambigu-
ous,...‘[n]o further judicial construction is required or
permitted’ ” because we must conclude that the electors
“ ‘intended the meaning clearly expressed.’ ”
30
A trial court’s findings of fact may not be set aside
unless they are clearly erroneous.
31
A ruling is clearly
erroneous “if the reviewing court is left with a definite and
firm conviction that the trial court made a mistake.”
32
III. ANALYSIS AND APPLICATION
In this nuisance action, we must examine whether
the MMMA allows the patient-to-patient sales that
defendants facilitate or, instead, whether plaintiff is
entitled to an injunction pursuant to MCL 600.3801.
At the time this action was brought, MCL 600.3801
stated that “[a]ny building... used for the unlawful
26
See Const 1963, art 2, § 9 (“The people reserve to themselves the power
to propose laws and to enact and reject laws, called the initiative....”).
27
Kolanek, 491 Mich at 405.
28
Klooster v City of Charlevoix, 488 Mich 289, 296; 795 NW2d 578
(2011), citing Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d
119 (1999).
29
Sun Valley Foods, 460 Mich at 236, quoting United States v Turkette,
452 US 576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981).
30
People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012), quoting Sun
Valley Foods, 460 Mich at 236 (alteration in original).
31
MCR 2.613(C); People v Robinson, 475 Mich 1, 5; 715 NW2d 44
(2006).
32
People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).
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manufacture, transporting, sale, keeping for sale, bar-
tering, or furnishing of any controlled substance as
defined in [MCL 333.7104]... is declared a nui-
sance....”
33
Marijuana is a controlled substance as
defined in MCL 333.7104. However, because “[t]he
medical use of marihuana is allowed under state law to
the extent that it is carried out in accordance with [the
MMMA],”
34
the MMMA controls whether defendants’
business constitutes a public nuisance.
This Court first interpreted the MMMA in People v
Kolanek and explained:
The MMMA does not create a general right for individu-
als to use and possess marijuana in Michigan. Possession,
manufacture, and delivery of marijuana remain punishable
offenses under Michigan law. Rather, the MMMA’s protec-
tions are limited to individuals suffering from serious or
debilitating medical conditions or symptoms, to the extent
that the individuals’ marijuana use “is carried out in
accordance with the provisions of [the MMMA].”
[
35
]
In contrast to several other states’ medical marijuana
provisions,
36
the MMMA does not explicitly provide for
33
Emphasis added. MCL 600.3805 allows the prosecuting attorney to
maintain an action for equitable relief to abate a nuisance under MCL
600.3801. During the pendency of this case, the Legislature amended
MCL 600.3801, but the operative language relevant to this case was
unchanged. 2012 PA 352.
34
MCL 333.26427(a).
35
Kolanek, 491 Mich at 394, quoting MCL 333.26427(a) (alteration in
original).
36
For instance, Colorado provides for and regulates “medical marijuana
center[s]” that sell marijuana to registered medical marijuana patients. Colo
Rev Stat 12-43.3-402. Similarly, Maine permits a registered medical mari-
juana patient to designate a not-for-profit dispensary that may provide
marijuana for the patient and “[r]eceive reasonable monetary compensation
for costs associated with assisting or for cultivating marijuana for a patient
who designated the dispensary[.]” Me Rev Stat tit 22, § 2428(1-A). See also
Ariz Rev Stat 36-2801(11) (defining “[n]onprofit medical marijuana dispen-
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businesses that dispense marijuana to patients. Never-
theless, defendants claim that § 3(e) of the MMMA
allows their business to facilitate patient-to-patient
sales of marijuana. The Court of Appeals disagreed and
held that the term “medical use,” defined in § 3(e), does
not encompass sales. We turn now to this provision.
A. “MEDICAL USE” OF MARIJUANA
As stated, § 7(a) of the MMMA provides that “[t]he
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].” The MMMA specifically
defines “medical use” in § 3(e) 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 asso-
ciated with the debilitating medical condition.
[
37
]
At issue in this case is whether the sale of marijuana is
an activity that falls within this definition of “medical
use.” The definition specifically incorporates nine activi-
ties relating to marijuana as “medical use,” but it does not
expressly use the word “sale.” Because of this omission,
plaintiff argues, and the Court of Appeals held, that the
sale of marijuana falls outside the statutory definition of
“medical use”:
sary” as “a not-for-profit entity that acquires, possesses, cultivates, manu-
factures, delivers, transfers, transports, supplies, sells or dispenses mari-
juana or related supplies and educational materials to cardholders”); RI Gen
Laws 21-28.6-3(2) (defining “[c]ompassion center” as “a not-for-profit cor-
poration... that acquires, possesses, cultivates, manufactures, delivers,
transfers, transports, supplies or dispenses marijuana, and/or related sup-
plies and educational materials, to registered qualifying patients and/or
their registered primary caregivers who have designated it as one of their
primary caregivers”).
37
MCL 333.26423(e).
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[T]he sale of marijuana is not equivalent to the delivery or
transfer of marijuana. The delivery or transfer of marijuana is
only one component of the sale of marijuana—the sale of
marijuana consists of the delivery or transfer plus the receipt
of compensation. The “medical use” of marijuana, as defined
by the MMMA, allows for the “delivery” and “transfer” of
marijuana, but not the “sale” of marijuana. MCL
333.26423(e). We may not ignore, or view as inadvertent, the
omission of the term “sale” from the definition of the “medi-
cal use” of marijuana.
[
38
]
Defendants claim that the Court of Appeals erred by
excluding sales from the definition of “medical use.”
In determining whether a sale constitutes “medical
use,” we first look to how the MMMA defines the term
“medical use.” In particular, the definition of “medical
use” contains the word “transfer” as one of nine activi-
ties encompassing “medical use.” The MMMA, however,
does not itself define “transfer” or any of the other
eight activities encompassing “medical use.” Because
undefined terms “shall be construed and understood
according to the common and approved usage of the
language,”
39
it is appropriate to consult dictionary defi-
nitions of terms used in the MMMA.
40
A transfer is “[a]ny mode of disposing of or parting
with an asset or an interest in an asset, including a gift,
the payment of money, release, lease, or creation of a lien
or other encumbrance.”
41
Similarly, a sale is “[t]he
transfer of property or title for a price.”
42
Given these
38
McQueen, 293 Mich App at 668.
39
MCL 8.3a.
40
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
41
Black’s Law Dictionary (8th ed), p 1535 (emphasis added); see also
Random House Webster’s College Dictionary (2d ed, 1997), p 1366 (defining
“transfer” as “to convey or remove from one place, person, or position to
another”).
42
Black’s Law Dictionary (8th ed), p 1364 (emphasis added); see also
Random House Webster’s College Dictionary (2d ed, 1997), p 1143 (defining
“sale” as “transfer of property for money or credit”).
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definitions, to state that a transfer does not encompass
a sale is to ignore what a transfer encompasses. That a
sale has an additional characteristic, distinguishing it
from other types of transfers, does not make it any less
a transfer, nor does that additional characteristic re-
quire that the definition of “medical use” separately
delineate the term “sale” in order for a sale to be
considered a medical use.
Nor do other provisions of the MMMA limit the
definition of “medical use” to exclude sales. For in-
stance, § 4(e) allows a registered primary caregiver to
“receive compensation for costs associated with assist-
ing a registered qualifying patient in the medical use of
marihuana,” but states that “[a]ny such compensation
shall not constitute the sale of controlled substances.”
43
While this section specifically contemplates that a reg-
istered qualifying patient may compensate his car-
egiver, it does not narrow the word “transfer” as used in
the § 3(e) definition of “medical use.”
44
Rather, § 4(e)
independently describes the relationship between a
registered caregiver and his registered qualifying pa-
tient and provides an additional protection for the
patient-caregiver relationship by emphasizing that it is
not a criminal act for a registered qualifying patient to
compensate a registered primary caregiver for costs
associated with providing marijuana to the patient.
45
Additionally, § 4(k) establishes criminal sanctions for
a patient or caregiver “who sells marihuana to someone
who is not allowed to use marihuana for medical
43
MCL 333.26424(e).
44
MCL 333.26423(e).
45
Defendants claim that this provision excludes a caregiver’s reim-
bursement from the provisions of the General Sales Tax Act, MCL 205.51
et seq. Because it is well beyond the scope of this case, we need not
address that issue.
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purposes under [the MMMA]....”
46
This provision is
also irrelevant to understanding the definition of
“medical use” in § 3(e). Any transfer to a person who is
“not allowed to use marihuana for medical
purposes”
47
—whether for a price or not—is already
specifically excluded from the definition of “medical
use,” which requires a medical use to have the specific
purpose to “treat or alleviate a registered qualifying
patient’s debilitating medical condition or symptoms
associated with the debilitating medical condition.”
48
Thus, rather than inform the definition of “medical
use,” § 4(k)
49
simply provides an additional criminal
penalty for certain actions that already fall outside the
definition of “medical use” and that are already barred
under the Public Health Code.
50
Therefore, we hold that the definition of “medical
use” in § 3(e) of the MMMA includes the sale of mari-
juana. The Court of Appeals erred by concluding other-
wise, and we reverse that portion of the Court of
Appeals’ judgment defining “medical use.” Neverthe-
less, this definition of “medical use” only forms the
beginning of our inquiry. Section 7(a) of the act requires
any medical use of marijuana to occur “in accordance
with the provisions of [the MMMA].” That limitation
requires this Court to look beyond the definition of
“medical use” to determine whether defendants’ busi-
ness operates “in accordance with the provisions of [the
46
A registered qualifying patient or registered primary caregiver who
violates § 4(k) “shall have his or her registry identification card revoked
and is guilty of a felony punishable by imprisonment for not more than 2
years or a fine of not more than $2,000.00, or both, in addition to any
other penalties for the distribution of marihuana.” MCL 333.26424(k).
47
MCL 333.26424(k).
48
MCL 333.26423(e) (emphasis added).
49
MCL 333.26424(k).
50
MCL 333.1101 et seq.
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MMMA].”
51
Absent a situation triggering the affirma-
tive defense of § 8 of the MMMA,
52
§ 4 sets forth the
requirements for a person to be entitled to immunity
for the “medical use” of marijuana. It is entitlement to
that immunity—not the definition of “medical use”—
that demonstrates that the person’s medical use of
marijuana is in accordance with the MMMA. Therefore,
we turn to § 4 to determine whether patient-to-patient
sales are entitled to that section’s provision of immu-
nity.
B. SECTION 4 IMMUNITY
Section 4(a) of the MMMA grants a “qualifying
patient who has been issued and possesses a registry
identification card”
53
immunity from arrest, prosecu-
tion, or penalty “for the medical use of marihuana in
accordance with this act....”
54
Similarly, § 4(b) grants
the same immunity from arrest, prosecution, or penalty
51
MCL 333.26427(a).
52
These situations are limited to “any prosecution involving mari-
huana,” MCL 333.26428(a), a “disciplinary action by a business or
occupational or professional licensing board or bureau,” MCL
333.26428(c)(1), or “forfeiture of any interest in or right to property,”
MCL 333.26428(c)(2). For further discussion of the § 8 affirmative
defense, see part III(C) of this opinion.
53
“ ‘Qualifying patient’ means a person who has been diagnosed by a
physician as having a debilitating medical condition.” MCL 333.26423(h).
54
MCL 333.26424(a). Section 4(a) also conditions immunity on the
patient’s possession of “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 caregiver will be allowed under state law to
cultivate marihuana for the qualifying patient, 12 marihuana plants kept
in an enclosed, locked facility.” Section 4(a) is consistent in structure with
§ 6(a)(6), which requires a registered qualifying patient to designate
“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). This determination is “based solely
on the qualifying patient’s preference.” MCL 333.26426(e)(6).
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to “[a] primary caregiver who has been issued and
possesses a registry identification card...forassisting
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....”
55
Furthermore, § 4(d) creates a presumption of medi-
cal use, which informs how § 4 immunity can be as-
serted or negated:
There shall be a presumption that a qualifying patient
or primary caregiver is engaged in the medical use of
marihuana in accordance with this act if the qualifying
patient or primary caregiver:
(1) is in possession of a registry identification card; and
(2) is in possession of an amount of marihuana that does
not exceed the amount allowed under this act. The pre-
sumption may be rebutted by evidence that conduct related
to marihuana was not for the purpose of alleviating the
qualifying patient’s debilitating medical condition or symp-
toms associated with the debilitating medical condition, in
accordance with this act.
[
56
]
Because § 4(d) creates a presumption of medical use
and then states how that presumption may be rebutted,
we conclude that a rebutted presumption of medical use
renders immunity under § 4 of the MMMA inapplicable.
55
MCL 333.26424(b). “ ‘Primary caregiver’ means a person who is at
least 21 years old and who 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). Section 4(b) also conditions immunity
on the patient’s possession of an amount of marijuana that does not
exceed 2.5 ounces of usable marijuana for each qualifying patient to
whom the caregiver is connected through the MDCH’s registration
process, and, for each qualifying patient who has specified that a primary
caregiver will be allowed under state law to cultivate marijuana for the
qualifying patient, 12 marijuana plants kept in an enclosed, locked
facility.
56
MCL 333.26424(d) (emphasis added).
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The text of § 4(d) establishes that the MMMA
intends to allow “a qualifying patient or primary
caregiver” to be immune from arrest, prosecution, or
penalty only if conduct related to marijuana is “for
the purpose of alleviating the qualifying patient’s
debilitating medical condition” or its symptoms. Sec-
tion 4 creates a personal right and protection for a
registered qualifying patient’s medical use of mari-
juana, but that right is limited to medical use that has
the purpose of alleviating that patient’s own debili-
tating medical condition or symptoms. If the medical
use of marijuana is for some other purpose—even to
alleviate the medical condition or symptoms of a
different registered qualifying patient—then the pre-
sumption of immunity attendant to the “medical use”
of marijuana has been rebutted.
The dissent claims that the presumption of immunity
attendant to the “medical use” of marijuana applies
when a qualifying patient transfers marijuana to an-
other qualifying patient. However, the dissent’s con-
struction is not consistent with the statutory language
that the people of Michigan actually adopted.
57
The
presumption that “a qualifying patient” is engaged in
the medical use of marijuana under § 4(d) is rebutted
when marijuana-related conduct is “not for the purpose
of alleviating the qualifying patient’s debilitating medi-
cal condition....”Contrary to the dissent’s conclusion
57
In concluding that our holding “is inconsistent with the purpose of
the MMMA,” post at 164, the dissent ignores that the purpose of any
statutory text is communicated through the words actually enacted. By
giving effect to the text of § 4(d), the Court is giving effect to the purpose
of the MMMA. Similarly, the dissent’s claim that qualifying patients “are,
for all practical purposes, deprived of an additional route to obtain
marijuana,” post at 164, is irrelevant when the language of § 4(d)
requires the conclusion that a transferor may not avail himself of
immunity when the transfer is not to alleviate the transferor’s debilitat-
ing medical condition.
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that § 4(d) only requires “one of the two qualified
patients involved in the transfer of marijuana [to] have
a debilitating medical condition that the transfer of
marijuana purports to alleviate,”
58
the definite article in
§ 4(d) refers to the qualifying patient who is asserting
§ 4 immunity, not to any qualifying patient involved in
a transaction. While the introductory language of § 4(d)
refers to “a” qualifying patient, that indefinite article
simply means that any qualifying patient may claim
§ 4(d) immunity, as long as the marijuana-related con-
duct is related to alleviating “the” patient’s medical
condition.
Thus, § 4 immunity does not extend to a registered
qualifying patient who transfers marijuana to another
registered qualifying patient for the transferee’s use
59
because the transferor is not engaging in conduct
related to marijuana for the purpose of relieving the
transferor’s own condition or symptoms.
60
Similarly, § 4
immunity does not extend to a registered primary
caregiver who transfers marijuana for any purpose
other than to alleviate the condition or symptoms of a
specific patient with whom the caregiver is connected
through the MDCH’s registration process.
58
Post at 163.
59
Our interpretation of § 4(d) does not turn on the fact that the
patient-to-patient transfers occurred for a price. Rather, § 4(d) acts as a
limitation on what sort of “medical use” is allowed under the MMMA.
The same limitation that prohibits a patient from selling marijuana to
another patient also prohibits him from undertaking any transfers to
another patient.
60
Of course, a registered qualifying patient who acquires marijuana—
whether from another registered qualifying patient or even from some-
one who is not entitled to possess marijuana—to alleviate his own
condition can still receive immunity from arrest, prosecution, or penalty
because the § 4(d) presumption cannot be rebutted on that basis. In this
sense, § 4 immunity is asymmetric: it allows a registered qualifying
patient to obtain marijuana for his own medical use but does not allow
him to transfer marijuana for another registered qualifying patient’s use.
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Defendants’ business facilitates patient-to-patient
sales, presumably to benefit the transferee patient’s
debilitating medical condition or symptoms. However,
those transfers do not qualify for § 4 immunity because
they encompass marijuana-related conduct that is not
for the purpose of alleviating the transferor’s debilitat-
ing medical condition or its symptoms. Because the
defendants’ “medical use” of marijuana does not com-
ply with the immunity provisions of §§ 4(a), 4(b), and
4(d), defendants cannot claim that § 4 insulates them
from a public nuisance claim.
Nevertheless, defendants posit that, even if they are
not entitled to immunity under § 4(d), § 4(i) permits
their business to operate in accordance with the
MMMA. Section 4(i) insulates a person from “arrest,
prosecution, or penalty in any manner... solely for
being in the presence or vicinity of the medical use of
marihuana in accordance with this act, or for assisting
a registered qualifying patient with using or adminis-
tering marihuana.”
61
However, this provision does not
apply to defendants’ actions, nor does it apply to any
patient-to-patient transfers of marijuana. First, defen-
dants were not “solely...inthepresence or vicinity of
the medical use of marihuana” because they were
actively facilitating patient-to-patient sales for pecuni-
ary gain. Second, defendants were not “assisting a
registered qualifying patient with using or administer-
ing marihuana.” While they were assisting one regis-
tered qualifying patient with acquiring marijuana and
another registered qualifying patient with transferring
marijuana, they were not assisting anyone with using or
administering marijuana.
62
61
MCL 333.26424(i).
62
Defendants specifically denied that they allowed any ingestion of
marijuana to occur at CA.
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Notably, § 4(i) does not contain the statutory term
“medical use,” but instead contains two of the nine
activities that encompass medical use: “using” and “ad-
ministering” marijuana. “Use” is defined as “to employ
for some purpose; put into service[.]”
63
“Administer” is
defined in the medicinal context as “to give or apply: to
administer medicine.”
64
In this context, the terms “using”
and “administering” are limited to conduct involving the
actual ingestion of marijuana. Thus, by its plain language,
§ 4(i) permits, for example, the spouse of a registered
qualifying patient to assist the patient in ingesting mari-
juana, regardless of the spouse’s status. However, § 4(i)
does not permit defendants’ conduct in this case. Defen-
dants transferred and delivered marijuana to patients by
facilitating patient-to-patient sales; in doing so, they as-
sisted those patients in acquiring marijuana. The transfer,
delivery, and acquisition of marijuana are three activities
that are part of the “medical use” of marijuana that the
drafters of the MMMA chose not to include as protected
activities within § 4(i). As a result, defendants’ actions
were not in accordance with the MMMA under that
provision.
C. SECTION 8 AFFIRMATIVE DEFENSE
Finally, even though § 4 does not permit defendants
to operate a business that facilitates patient-to-patient
sales of marijuana, our decision in Kolanek makes clear
that § 8 provides separate protections for medical mari-
juana patients and caregivers and that one need not
satisfy the requirements of § 4 immunity to be entitled
to the § 8 affirmative defense,
65
which allows “a patient
and a patient’s primary caregiver, if any, [to] assert the
63
Random House Webster’s College Dictionary (2d ed, 1997), p 1414.
64
Id. at 17.
65
Kolanek, 491 Mich at 403.
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medical purpose for using marihuana as a defense to any
prosecution involving marihuana....”
66
However, by its
own terms, § 8(a) only applies “as a defense to any
prosecution involving marihuana....”
67
The text and
structure of § 8 establish that the drafters and voters
intended that “prosecution” refer only to a criminal pro-
ceeding. Specifically, § 8(b) explains that 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 person shows
the elements listed in subsection (a).”
68
As a result, § 8
does not provide defendants with a basis to assert that
their actions are in accordance with the MMMA.
Although it did so for a different reason than the one
we articulate, the Court of Appeals reached the correct
conclusion that defendants are not entitled to operate a
business that facilitates patient-to-patient sales of
marijuana. Because the business model of defendants’
dispensary relies entirely on transactions that do not
comply with the MMMA, defendants are operating their
business in “[a] building...used for the unlawful...
keeping for sale... or furnishing of any controlled
substance,” and plaintiff is entitled to an injunction
enjoining the continuing operation of the business
because it is a public nuisance.
69
66
MCL 333.26428(a).
67
Id. (emphasis added).
68
MCL 333.26428(b) (emphasis added). This limitation is further
supported by the explicit exceptions that allow a person to assert the § 8
affirmative defense outside the criminal context. Section 8(c) allows a
patient or caregiver to assert a patient’s medical purpose for using
marijuana outside the context of criminal proceedings, but only as a
defense to “disciplinary action by a business or occupational or profes-
sional licensing board or bureau” or the “forfeiture of any interest in or
right to property.” MCL 333.26428(c). This case does not represent one of
the two limited exceptions contained in § 8(c).
69
Former MCL 600.3801.
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IV. CONCLUSION
Because we conclude that defendants’ business does
not comply with the MMMA, we affirm the Court of
Appeals’ decision on alternative grounds. While the sale
of marijuana constitutes “medical use” as the term is
defined in MCL 333.26423(c), § 4 of the MMMA, MCL
333.26424, does not permit a registered qualifying
patient to transfer marijuana for another registered
qualifying patient’s medical use. Plaintiff is thus en-
titled to injunctive relief to abate a violation of the
Public Health Code.
M
ARKMAN
,M
ARY
B
ETH
K
ELLY
, and Z
AHRA
, JJ., con-
curred with Y
OUNG
, C.J.
APPENDIX
As an aid to judges, practitioners, and the public, we
provide the following summary of our holdings in this
case:
(1) The term “medical use,” as defined in § 3(e) of the
Michigan Medical Marihuana Act (MMMA), MCL
333.26423(e), encompasses the sale of marijuana “to
treat or alleviate a registered qualifying patient’s debili-
tating medical condition or symptoms associated with
the debilitating medical condition.”
(2) To be eligible for immunity under § 4 of the
MMMA, MCL 333.26424, a registered qualifying pa-
tient must be engaging in marijuana-related conduct
for the purpose of alleviating the patient’s own debili-
tating medical condition or symptoms associated with
the debilitating medical condition.
(3) To be eligible for § 4 immunity, a registered
primary caregiver must be engaging in marijuana-
related conduct for the purpose of alleviating the debili-
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tating medical condition, or symptoms associated with
the debilitating medical condition, of a registered quali-
fying patient to whom the caregiver is connected
through the registration process of the Michigan De-
partment of Community Health (MDCH).
(4) As a result, § 4 does not offer immunity to a
registered qualifying patient who transfers marijuana
to another registered qualifying patient, nor does it
offer immunity to a registered primary caregiver who
transfers marijuana to anyone other than a registered
qualifying patient to whom the caregiver is connected
through the MDCH’s registration process.
(5) Section 4(i), MCL 333.26424(i), permits any per-
son to assist a registered qualifying patient with “using
or administering” marijuana. However, the terms “us-
ing” and “administering” are limited to conduct involv-
ing the actual ingestion of marijuana.
(6) The affirmative defense of § 8 of the MMMA,
MCL 333.26428, applies only to criminal prosecutions
involving marijuana, subject to the limited exceptions
contained in § 8(c) for disciplinary action by a business
or occupational or professional licensing board or bu-
reau or forfeiture of any interest in or right to property.
C
AVANAGH
,J.(dissenting). I respectfully disagree with
the majority’s interpretation of the Michigan Medical
Marihuana Act (MMMA), MCL 333.26421 et seq.Inmy
view, § 4(d)(2) of the act, MCL 333.26424(d)(2), does not
limit the definition of “medical use” of marijuana set
forth in § 3(e) of the act, MCL 333.26423(e), so that a
qualified patient who transfers marijuana to another
qualified patient is precluded from asserting immunity
under § 4(a) of the act, MCL 333.26424(a). Rather, I
would hold that when a qualified patient transfers
marijuana to another qualified patient, both individuals
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have the right to assert immunity under § 4 of the act,
MCL 333.26424. Furthermore, as a result of the major-
ity’s erroneous interpretation of § 4, the majority im-
properly concludes that any facilitation of the transfer
of marijuana from patient to patient is unlawful and
enjoinable as a nuisance.
As the majority explains, defendants’ activity falls
under the definition of “medical use” of marijuana set
forth in § 3(e) of the act, which states that “medical
use” means “the acquisition, possession, cultivation,
manufacture, use, internal possession, delivery, trans-
fer, or transportation of marihuana... to treat or
alleviate a registered qualifying patient’s debilitating
medical condition....” MCL 333.26423(e) (emphasis
added). However, the majority erroneously concludes
that only the qualified patient who receives marijuana
is entitled to assert § 4 immunity in light of its inter-
pretation of § 4(d)(2). Section 4(d) of the act provides a
presumption that “a qualifying patient or primary
caregiver is engaged in the medical use of marihuana”
when certain conditions are met. MCL 333.26424(d).
However, under § 4(d)(2), that presumption may be
rebutted with evidence that the “conduct related to
marihuana was not for the purpose of alleviating the
qualifying patient’s debilitating medical condition....”
MCL 333.26424(d)(2) (emphasis added). The majority
reasons that the reference to “the” qualified patient
requires the conclusion that only the recipient of mari-
juana is entitled to § 4 immunity for a patient-to-
patient transfer of marijuana because only the trans-
feree’s medical condition may be alleviated as a result of
the transfer.
I disagree with this interpretation because it is
inconsistent with the rules of statutory interpretation.
When interpreting the MMMA, “[w]e must give the
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words of the MMMA their ordinary and plain meaning
as would have been understood by the electorate.”
People v Kolanek, 491 Mich 382, 397; 817 NW2d 528
(2012), citing People v Barbee, 470 Mich 283, 286; 681
NW2d 348 (2004). It is true that, in order for the § 4(d)
presumption to apply, the marijuana-related conduct at
issue must be for the purpose of alleviating the medical
condition or symptoms of the qualified patient who in
fact suffers from a debilitating medical condition. How-
ever, when a qualified patient transfers marijuana to
another qualified patient, the transferor is also engaged
in marijuana-related conduct for the purpose of allevi-
ating the medical condition of the qualified patient who
is also involved in the transfer and is suffering from a
debilitating medical condition. The marijuana-related
conduct is the transfer of marijuana, which is expressly
included in the definition of “medical use” of mari-
juana. MCL 333.26423(e). Thus, the reference in
§ 4(d)(2) to “the” qualifying patient simply requires
that one of the two qualified patients involved in the
transfer of marijuana have a debilitating medical con-
dition that the transfer of marijuana is intended to
alleviate.
Moreover, when interpreting a statute, “[a] court
should consider the plain meaning of a statute’s words
and their placement and purpose in the statutory
scheme.” McCormick v Carrier, 487 Mich 180, 192; 795
NW2d 517 (2010) (citation and quotation marks omit-
ted). The majority’s singular reliance on the reference
in § 4(d)(2) to “the” qualifying patient ignores the fact
that § 4(a) and the introductory language of § 4(d) refer
to “a” qualifying patient. Therefore, when § 4(d)(2) is
viewed in the context of § 4 in its entirety, it is clear that
any qualified patient “who has been issued and pos-
sesses a registry identification card” has the right to
assert § 4 immunity. MCL 333.26424(a).
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The majority characterizes its holding as creating
“asymmetric” immunity under § 4 because it permits a
qualified patient who receives marijuana to assert im-
munity, but a qualified patient who transfers marijuana
is not entitled to the same protection. Ante at 156 n 60.
Thus, under the majority’s holding, a qualified patient’s
right to receive marijuana is effectively extinguished
because a patient-to-patient transfer of marijuana can
never occur lawfully for both qualifying patients. I
cannot conclude from the plain meaning of the lan-
guage of the MMMA that the electorate intended to
afford a person a right only to foreclose any real
possibility that the person may benefit from that right.
Furthermore, the majority’s view is inconsistent with
the purpose of the MMMA—to promote the “health and
welfare of [Michigan] citizens”—because qualified pa-
tients who are in need of marijuana for medical use, yet
do not have the ability to either cultivate marijuana or
find a trustworthy primary caregiver, are, for all prac-
tical purposes, deprived of an additional route to obtain
marijuana for that use—another qualified patient’s
transfer. MCL 333.26422(c).
Lastly, the majority’s erroneous interpretation of
§ 4(d) leads the majority to an inadequate analysis
regarding its ultimate conclusion that defendants’ fa-
cilitation of the transfer of marijuana is enjoinable
under MCL 600.3801 and MCL 600.3805 as a public
nuisance.
1
Because I would conclude that the MMMA
does not exclude patient-to-patient transfers of mari-
juana from the immunity afforded under § 4 of the act,
the next inquiry should be whether the facilitation of
the transfer of marijuana falls under the act’s definition
1
MCL 600.3801(1)(c) states that a building may be declared a nuisance
if “[i]t is used for the unlawful manufacture, transporting, sale, keeping
for sale, bartering, or furnishing of a controlled substance.”
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of “medical use” of marijuana, which, if so, means that
a qualified patient who facilitates the transfer of mari-
juana has the right to assert immunity under § 4(a) and
is entitled to the presumption that he or she was
engaged in the medical use of marijuana under § 4(d).
2
The majority skims over this question by employing the
same flawed reasoning that it uses to conclude that the
MMMA does not permit patient-to-patient transfers of
marijuana—that the transfers of marijuana that defen-
dants facilitated are only subject to immunity to the
extent that the recipient of the marijuana may assert
the immunity. Thus, not only has the majority improp-
erly limited a qualified patient’s right to receive mari-
juana for medical use from another qualified patient, as
previously explained, but the majority also holds that
virtually all medical-marijuana dispensaries are illegal
and thus enjoinable as a nuisance because those opera-
tions facilitate patient-to-patient transfers of mari-
juana.
In sum, I respectfully disagree with the majority’s
interpretation of § 4(d)(2), which limits the definition of
“medical use” of marijuana as set forth in § 3(e) because
that interpretation erroneously precludes a qualified
patient who transfers marijuana to another qualified
patient from asserting § 4 immunity. Rather, I would
hold that both qualified patients involved in a patient-
to-patient transfer of marijuana have the right to assert
2
Notably, the same analysis is not equally applicable to primary
caregivers because while § 4(b) allows primary caregivers to assert
immunity for the medical use of marijuana, that immunity is conditioned
by the fact that the caregiver must be “assisting a qualifying patient to
whom he or she is connected through the department’s registration
process....”MCL333.26424(b). Similarly, a qualified patient’s right to
assert § 4 immunity is conditioned on additional requirements apart from
the requirement that he or she was engaging in the medical use of
marijuana.
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immunity and are entitled to immunity if they meet the
specific requirements of § 4. Thus, I also disagree with
the majority’s conclusion that any facilitation of a
patient-to-patient transfer of marijuana is enjoinable as
a nuisance.
M
C
C
ORMACK
, J., took no part in the decision of this
case.
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DEBANO-GRIFFIN v LAKE COUNTY
Docket No. 143841. Argued October 10, 2012 (Calendar No. 6). Decided
February 8, 2013.
Cheryl Debano-Griffin brought an action in the Lake Circuit Court
against Lake County and the Lake County Board of Commission-
ers alleging, in part, that she had been terminated from her
position as the director of Lake County’s 911 department in
violation of the Whistleblowers’ Protection Act (WPA), MCL
15.361 et seq., after she raised concerns about a potentially
improper transfer of county funds from the county’s ambulance
account and regarding the ambulance service provided to the
county. Defendants moved for summary disposition under MCR
2.116(C)(8) and (10). The court, Peter J. Wadel, J., denied the
motion, and the jury returned a verdict in plaintiff’s favor.
Defendants appealed. The Court of Appeals, Z
AHRA
,P.J. (W
HITBECK
,
J., concurring, and M. J. K
ELLY
, J., dissenting), in an unpublished
opinion, issued October 15, 2009 (Docket No. 282921), reversed
and remanded for entry of an order granting summary disposition
to defendants. In lieu of granting leave to appeal, the Supreme
Court reversed the judgment of the Court of Appeals and re-
manded the case to that Court for consideration of an additional
argument that had been raised by defendants. 486 Mich 938
(2010). On remand, the Court of Appeals, M
URRAY
,P.J., and
H
OEKSTRA
,J.(S
TEPHENS
, J., dissenting), in an unpublished opinion
per curiam, issued August 25, 2011 (Docket No. 282921), held that
plaintiff had failed to establish a genuine issue of material fact
regarding the causation element of her claim and again reversed
the trial court’s order denying defendants’ motion for summary
disposition. The Supreme Court granted plaintiff’s application for
leave to appeal. 491 Mich 874 (2012).
In an opinion by Justice C
AVANAGH
, joined by Chief Justice
Y
OUNG
and Justices M
ARKMAN
and M
ARY
B
ETH
K
ELLY
, the Supreme
Court held:
Judicial review of plaintiff’s claim under the WPA, which
questioned defendants’ proffered reason for the elimination of her
position by asserting that the proffered reason for termination was
a pretext for retaliation, violated neither the business-judgment
2013] D
EBANO
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RIFFIN V
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AKE
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OUNTY
167
rule nor the separation of powers given that review of the claim
merely required examination of whether the county board had
acted outside its constitutionally and legislatively granted powers
and that plaintiff did not question whether the purportedly
economic decision was wise, shrewd, prudent, or competent.
1. Under the WPA, a plaintiff may establish a prima facie case by
showing that (1) the plaintiff was engaged in protected activity as
defined by the act, (2) the defendant took an adverse employment
action against the plaintiff, and (3) a causal connection existed
between the protected activity and the adverse employment action. In
this case, only the causal connection was at issue. Absent direct
evidence of retaliation, a plaintiff must rely on indirect evidence of his
or her employer’s unlawful motivations to show that a causal link
existed between the whistleblowing act and the employer’s adverse
employment action. A plaintiff may present a rebuttable prima facie
case on the basis of proofs from which a fact-finder could infer that
the plaintiff was the victim of unlawful retaliation. Something more
than a temporal connection between protected conduct and an
adverse employment action is required to show causation when
retaliation is claimed. In this case, when viewed in the light most
favorable to plaintiff, the facts supported a reasonable inference that
plaintiff was the victim of unlawful retaliation. Specifically, during a
12-day period when plaintiff engaged in protected activity by raising
the concerns, her position went from fully funded to nonexistent;
from that evidence, a rational fact-finder could infer that the board
had decided to fund plaintiff’s position until she voiced her com-
plaints. Further, plaintiff made her complaints to the board that
ultimately eliminated her position. It is reasonable to infer that the
more knowledge the employer has of the protected activity, the
greater the possibility of an impermissible motivation for the adverse
employment action. Additionally, the board remedied its prior and
potentially unlawful action after plaintiff voiced her concerns, sug-
gesting that because of plaintiff’s complaints, the board was forced to
do something it would not otherwise have done. From that evidence,
a reasonable inference could be drawn that the board was motivated
to eliminate plaintiff’s position because of her complaints.
2. Once a plaintiff establishes a prima facie case, a presumption of
retaliation arises because an employer’s adverse action is more likely
than not based on the consideration of impermissible factors if the
employer cannot otherwise justify the action. The employer might be
entitled to summary disposition, however, if it offers a legitimate
reason for its action and the plaintiff fails to show that a reasonable
fact-finder could still conclude that his or her protected activity was a
motivating factor for the employer’s adverse action. A plaintiff must
168 493 M
ICH
167 [Feb
not merely raise a triable issue that the employer’s proffered reason
was pretextual, but must raise the issue that it was pretext for
unlawful retaliation. In this case, defendants claimed that plaintiff’s
position was eliminated because of economic necessity and that
plaintiff could not challenge that justification because any challenge
would either impermissibly question defendants’ business judgment
or unconstitutionally require judicial review of a legislative body’s
policy decision, violating the separation of powers. A plaintiff can
establish that a defendant’s stated legitimate, nondiscriminatory
reasons are pretexts (1) by showing that the reasons had no basis in
fact, (2) if they have a basis in fact, by showing that they were not the
actual factors motivating the decision, or (3) if they were factors, by
showing that they were jointly insufficient to justify the decision. The
soundness of an employer’s business judgment, however, may not be
questioned as a means of showing pretext. In this case, plaintiff did
not question defendants’ business judgment. Rather, plaintiff as-
serted that defendants’ proffered justification had no basis in fact, or
at least was not the actual factor motivating the decision, when she
offered evidence that, when viewed in the light most favorable to her,
suggested that the county was not facing a budget crisis. Further, the
WPA expressly waives legislative immunity, making the act fully
applicable to public employers. Thus, the question whether the board
lawfully exercised its authority when it eliminated plaintiff’s position
was subject to judicial review, and that review did not violate the
separation of powers. Plaintiff presented sufficient evidence to con-
clude that reasonable minds could differ regarding the board’s true
motivation for eliminating her position and raised a genuine issue of
material fact regarding causation. Defendants were not entitled to
summary disposition.
Judgment of the Court of Appeals reversed, trial court’s denial
of defendants’ motion for summary disposition reinstated, and
trial court order entering judgment in favor of plaintiff reinstated.
Justice Z
AHRA
took no part in the decision of this case because
he was on the Court of Appeals panel that issued the initial
opinion.
Justice M
C
C
ORMACK
took no part in the decision of this case.
1. A
CTIONS —
W
HISTLEBLOWERS
’P
ROTECTION
A
CT —
P
RIMA
F
ACIE
C
ASE —
C
AUSAL
C
ONNECTION —
I
NDIRECT
E
VIDENCE —
E
MPLOYER
’
S
K
NOWLEDGE OF
P
RO-
TECTED
A
CTIVITY
.
Under the Whistleblowers’ Protection Act, a plaintiff may establish
a prima facie case by showing that (1) the plaintiff was engaged in
protected activity as defined by the act, (2) the defendant took an
adverse employment action against the plaintiff, and (3) a causal
2013] D
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RIFFIN V
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AKE
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169
connection exists between the protected activity and the adverse
employment action; absent direct evidence of retaliation, a plain-
tiff must rely on indirect evidence of his or her employer’s
unlawful motivations to show that a causal link exists between the
whistleblowing act and the employer’s adverse employment ac-
tion; something more than a temporal connection between pro-
tected conduct and an adverse employment action is required to
show causation when retaliation is claimed; it is reasonable to
infer that the more knowledge the employer has of the protected
activity, the greater the possibility of an impermissible motivation
for the adverse employment action (MCL 15.361 et seq.).
2. A
CTIONS —
W
HISTLEBLOWERS
’P
ROTECTION
A
CT —
P
RESUMPTION OF
R
ETALIA-
TION —
L
EGITIMATE
,N
ONDISCRIMINATORY
R
EASON FOR THE
A
DVERSE
E
M-
PLOYMENT
A
CTION —
P
RETEXT FOR
U
NLAWFUL
R
ETALIATION —
B
USINESS
-
J
UDGMENT
R
ULE
.
Once a plaintiff establishes a prima facie case of retaliation under
the Whistleblowers’ Protection Act, a presumption of retaliation
arises; the employer might be entitled to summary disposition,
however, if it offers a legitimate reason for its action and the
plaintiff fails to show that a reasonable fact-finder could still
conclude that his or her protected activity was a motivating factor
for the employer’s adverse action; a plaintiff must not merely raise
a triable issue that the employer’s proffered reason was pretextual,
but must raise the issue that it was pretext for unlawful retalia-
tion; a plaintiff can establish that a defendant’s stated legitimate,
nondiscriminatory reasons are pretexts (1) by showing that the
reasons had no basis in fact, (2) if they have a basis in fact, by
showing that they were not the actual factors motivating the
decision, or (3) if they were factors, by showing that they were
jointly insufficient to justify the decision; the soundness of an
employer’s business judgment, however, may not be questioned as
a means of showing pretext (MCL 15.361 et seq.).
3. A
CTIONS —
W
HISTLEBLOWERS
’P
ROTECTION
A
CT —
W
AIVER OF
L
EGISLATIVE
I
MMUNITY
.
The Whistleblowers’ Protection Act expressly waives legislative
immunity, making the act fully applicable to public employers; the
question whether a legislative body has lawfully exercised its
authority when taking an adverse employment action is subject to
judicial review (MCL 15.361 et seq.).
Mark Granzotto, P.C. (by Mark Granzotto), and Par-
sons Law Firm, PLC (by Grant W. Parsons), for Cheryl
Debano-Griffin.
170 493 M
ICH
167 [Feb
Abbott Nicholson, P.C. (by John R. McGlinchey and
Kristen L. Baiardi), for Lake County and the Lake
County Board of Commissioners.
C
AVANAGH
, J. This case requires us to determine
whether plaintiff, Cheryl Debano-Griffin, provided suf-
ficient evidence to create a genuine issue of material
fact regarding the causation element of her claim under
the Whistleblowers’ Protection Act (WPA), MCL
15.361, et seq. We hold that plaintiff presented evidence
that showed more than a temporal relationship be-
tween the protected activity and defendants’ adverse
employment action. See West v Gen Motors Corp, 469
Mich 177; 665 NW2d 468 (2003). Also, because plaintiff
must rely on circumstantial evidence to overcome de-
fendants’ motion for summary disposition, the frame-
work set forth in McDonnell Douglas Corp v Green, 411
US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is
applicable. In this case, we hold that plaintiff provided
sufficient evidence to establish her prima facie case of
unlawful retaliation under the WPA.
Additionally, we must determine whether plaintiff’s
claim, which questions defendants’ proffered reason for
the elimination of her position by asserting that the
proffered reason was a pretext for retaliation, violates
either the business-judgment rule, see Hazle v Ford
Motor Co, 464 Mich 456, 475-476; 628 NW2d 515
(2001), or the separation of powers. We hold that it does
not violate the separation of powers because judicial
review of plaintiff’s statutory claim merely examines
whether the county board of commissioners acted out-
side its constitutionally and legislatively granted pow-
ers. Additionally, plaintiff’s challenge to defendants’
budgetary justifications does not implicate the
business-judgment rule because plaintiff does not ques-
2013] D
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RIFFIN V
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tion whether the economic decision was “ ‘wise, shrewd,
prudent, or competent.’ ” See id. at 476 (citation omit-
ted).
Moreover, in addition to adequately rebutting defen-
dants’ facially legitimate budgetary grounds for elimi-
nating plaintiff’s position, plaintiff presented sufficient
evidence to conclude that reasonable minds could differ
regarding defendants’ true motivations for eliminating
her position. Therefore, plaintiff created a triable issue
of fact and defendants were not entitled to summary
disposition. Accordingly, we reverse the judgment of the
Court of Appeals and reinstate the trial court’s denial of
defendants’ motion for summary disposition.
I. FACTS AND PROCEEDINGS
In 1998, plaintiff began working as the director of
Lake County’s 911 department. Before her hiring,
county voters had passed a millage for the purpose of
operating Lake County’s ambulance service. Lake
County then contracted with Life EMS to provide two
ambulances a day to service the county. In 2002, plain-
tiff discovered that Life EMS was using one of the
ambulances to transport residents of other counties in
nonemergency circumstances. She informed the county
board of commissioners (hereinafter “the board”) and
other county officials that Life EMS was in breach of
the contract, which posed a threat to the health and
safety of county residents.
Additionally, on September 28, 2004, as authorized
by the board, $50,000 was transferred from the ambu-
lance account to a 911 account to use for a “mapping
project.” Plaintiff testified that on November 1, 2004,
during a mapping meeting, plaintiff objected to the
transfer, claiming that it violated the millage proposal
and explaining that she had obtained a grant to cover
172 493 M
ICH
167 [Feb
the cost of the mapping project. She further stated that
she had previously made similar objections regarding
the transfer to the board and at a county finance
committee meeting. Later, the board voted to return the
funds to the ambulance account, which occurred on
November 12, 2004. Also, on November 10, 2004, the
board voted to merge two county employment positions.
As a result of the merger, plaintiff’s position was
eliminated. Plaintiff received official notice of her ter-
mination on December 22, 2004, which explained that
her position was eliminated because of “budget prob-
lems” and that the county was “forced to take cost
cutting measures in order to balance its budget.” How-
ever, according to the proposed county budget as of
October 29, 2004, the position of 911 director was fully
funded at that time.
In January 2005, plaintiff filed a whistleblower claim
under MCL 15.362,
1
asserting that she was terminated
as result of her complaints regarding the funds transfer
and Life EMS’s ambulance service. Defendants filed a
motion for summary disposition under MCR
2.116(C)(8) and (10), arguing that plaintiff had not met
her burden of establishing a prima facie case under the
WPA because plaintiff did not engage in “protected
activity” and had not provided sufficient evidence to
1
MCL 15.362 states:
An employer shall not discharge, threaten, or otherwise dis-
criminate against an employee regarding the employee’s compen-
sation, terms, conditions, location, or privileges of employment
because the employee, or a person acting on behalf of the em-
ployee, reports or is about to report, verbally or in writing, a
violation or a suspected violation of a law or regulation or rule
promulgated pursuant to law of this state, a political subdivision of
this state, or the United States to a public body, unless the
employee knows that the report is false, or because an employee is
requested by a public body to participate in an investigation,
hearing, or inquiry held by that public body, or a court action.
2013] D
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support causation. The trial court denied defendants’
motion, and the jury returned a verdict in plaintiff’s
favor. Defendants appealed, and the Court of Appeals,
holding that plaintiff was not engaged in protected
activity under the WPA, reversed the trial court’s denial
of defendants’ motion and remanded the case to the
trial court for the entry of an order granting summary
disposition to defendants. Debano-Griffin v Lake Co,
unpublished opinion per curiam of the Court of Ap-
peals, issued October 15, 2009 (Docket No. 282921).
Plaintiff sought leave to appeal, and, in lieu of
granting leave to appeal, this Court reversed the judg-
ment of the Court of Appeals and remanded the case to
that Court for consideration of the argument raised by
defendants but not addressed by the Court of Appeals
during its initial review of the case. Debano-Griffin v
Lake Co, 486 Mich 938 (2010). On remand, the Court of
Appeals held that plaintiff had failed to establish a
genuine issue of material fact on the causation element
of her claim, relying primarily on West, and again
reversed the trial court’s order denying defendants’
motion for summary disposition. Debano-Griffin v Lake
Co (On Remand), unpublished opinion per curiam of
the Court of Appeals, issued August 25, 2011 (Docket
No. 282921). We granted plaintiff’s application for leave
to appeal to consider “(1) whether the plaintiff estab-
lished a causal connection between her protected activ-
ity and the adverse employment action” and
(2) whether a whistleblower may challenge an adverse
employment decision, which is claimed to be a matter of
business judgment that was based on a fiscal or budgetary
reason, as a mere pretext over the defendants’ assertion
that the separation of powers principle prevents the judi-
ciary from examining the budgetary decisions of a legisla-
tive body. [Debano-Griffin v Lake Co, 491 Mich 874 (2012).]
174 493 M
ICH
167 [Feb
II. STANDARD OF REVIEW
We review de novo a trial court’s ruling on a motion
for summary disposition. Chandler v Dowell Schlum-
berger Inc, 456 Mich 395, 397; 572 NW2d 210 (1998).
Because defendants focused their argument supporting
their motion for summary disposition on MCR
2.116(C)(10), we must ask whether a genuine issue of
material fact exists when, viewing the evidence in a
light most favorable to the nonmoving party, the
“record which might be developed...would leave open
an issue upon which reasonable minds might differ.”
Shallal v Catholic Social Servs of Wayne Co, 455 Mich
604, 609; 566 NW2d 571 (1997) (citations and quotation
marks omitted). Likewise, this Court reviews de novo
constitutional questions, including those concerning
the separation of powers. People v Garza, 469 Mich 431,
433; 670 NW2d 662 (2003).
III. ANALYSIS
Under the WPA, a plaintiff may establish a prima
facie case by showing that (1) the plaintiff was engaged
in protected activity as defined by the act, (2) the
defendant took an adverse employment action against
the plaintiff, and (3) “a causal connection exists be-
tween the protected activity” and the adverse employ-
ment action. Chandler, 456 Mich at 399.
2
However, the
only issue that we must decide in this case is causation.
Because whistleblower claims are analogous to other
antiretaliation employment claims brought under em-
ployment discrimination statutes prohibiting various
discriminatory animuses, they “should receive treat-
2
This Court has previously determined that plaintiff was engaged in a
“protected activity,” see Debano-Griffin, 486 Mich 938, and there is no
dispute that an “adverse employment action” was taken against plaintiff.
2013] D
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175
ment under the standards of proof of those analogous
[claims].” Shallal, 455 Mich at 617. Specifically, this
case requires application of the burden-shifting frame-
work set forth in McDonnell Douglas. See, e.g., Hazle,
464 Mich at 462-466 (applying the McDonnell Douglas
framework in the context of alleged discrimination in
employment).
Absent direct evidence of retaliation, a plaintiff must
rely on indirect evidence of his or her employer’s
unlawful motivations to show that a causal link exists
between the whistleblowing act and the employer’s
adverse employment action. See Hazle, 464 Mich at
462-463. A plaintiff may “ ‘present a rebuttable prima
facie case on the basis of proofs from which a factfinder
could infer that the plaintiff was the victim of unlawful
[retaliation].’ ” Id. at 462, quoting DeBrow v Century 21
Great Lakes, Inc (After Remand), 463 Mich 534, 537-
538; 620 NW2d 836 (2001). Once a plaintiff establishes
a prima facie case, “a presumption of [retaliation]
arises” because an employer’s adverse action is “more
likely than not based on the consideration of impermis-
sible factors”—for example, here, plaintiff’s protected
activity under the WPA—if the employer cannot other-
wise justify the adverse employment action. Hazle, 464
Mich at 463 (citations and quotation marks omitted).
The employer, however, may be entitled to summary
disposition if it offers a legitimate reason for its action
and the plaintiff fails to show that a reasonable fact-
finder could still conclude that the plaintiff’s protected
activity was a “motivating factor” for the employer’s
adverse action. Id. at 464-465. “[A] plaintiff must not
merely raise a triable issue that the employer’s prof-
fered reason was pretextual, but that it was a pretext
for [unlawful retaliation].” Id. at 465-466 (citations and
quotation marks omitted).
176 493 M
ICH
167 [Feb
Against this backdrop, we must now determine
whether plaintiff established a prima facie case of
unlawful retaliation and, if so, to what extent plaintiff
may argue that defendants’ budgetary justification for
the elimination of her position was pretextual.
A. PLAINTIFF’S PRIMA FACIE CASE
We hold that the Court of Appeals erred when it
misapplied West to conclude that plaintiff had failed to
establish her prima facie case because she did not create
a genuine issue of material fact regarding causation
under the WPA. In West, 469 Mich at 186, a majority of
this Court stated that “a temporal relationship, stand-
ing alone, does not demonstrate a causal connection
between the protected activity and any adverse employ-
ment action.” “Something more than a temporal con-
nection between protected conduct and an adverse
employment action is required to show causation” when
retaliation is claimed. Id.
In the present case, plaintiff does not rely solely on
the fact that defendants eliminated her position after
she engaged in protected activity. To the contrary,
plaintiff presented evidence of a causal link that shows
more than a “coincidence in time.” Id. at 186. Indeed,
during a 12-day period when plaintiff made various
complaints regarding the funds transfer and ambulance
services, plaintiff’s position went from fully funded to
nonexistent. From this, a rational juror could infer that
the board had already decided to fund plaintiff’s posi-
tion until she publicly voiced her complaints. See Hazle,
464 Mich at 462. This is especially so because one
reasonable conclusion is that the county’s financial
situation could not have deteriorated in 12 days to the
point that it had to consider extreme cost-saving mea-
sures at that particular time.
2013] D
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In addition, the fact that the same entity that made
the decision to eliminate plaintiff’s position, the board,
was also the direct recipient of plaintiff’s complaints
strengthens the causal link between plaintiff’s pro-
tected activity and defendants’ adverse action because
it is reasonable to infer that the more knowledge the
employer has of the plaintiff’s protected activity, the
greater the possibility of an impermissible motivation.
Similarly, it is reasonable to conclude that the more an
employer is affected by the plaintiff’s whistleblowing
activity, the stronger the causal link becomes between
the protected activity and the employer’s adverse em-
ployment action. In this case, the board heeded plain-
tiff’s advice and returned the transferred funds back
into the ambulance fund. The fact that the board
remedied its prior and potentially unlawful action lends
support to plaintiff’s position that defendants, because
of plaintiff’s complaints, were forced to do something
that they would not have otherwise done and, thus, a
reasonable inference may be drawn that the board was
motivated to eliminate plaintiff’s position because of her
complaints.
3
When viewed in a light most favorable to plaintiff,
the foregoing facts support a reasonable inference that
plaintiff was the victim of unlawful retaliation, which
establishes her prima facie case and gives rise to a
rebuttable presumption that defendants unlawfully re-
3
In West, 469 Mich at 185, a majority of this Court noted that “[t]he
evidence does not show that either of the supervisors, whom plaintiff
allegedly informed about the call to the police, viewed the call as a matter
of any consequence. Nor was either supervisor involved in the decision to
discharge plaintiff.” I continue to agree with Justice M
ARILYN
K
ELLY
’s West
dissent; however, the foregoing statement explains that when the same
individual (or in this case the board) is the recipient of or affected by the
plaintiff’s whistleblowing activity, the inference that the employer un-
lawfully retaliated against the plaintiff becomes stronger.
178 493 M
ICH
167 [Feb
taliated against plaintiff by eliminating her position.
The next step in the analysis requires that we consider
the extent to which plaintiff may rebut defendants’
facially legitimate reason for its adverse action—that
the board eliminated plaintiff’s position because of the
county’s impending financial crisis.
B. PLAINTIFF’S ABILITY TO SHOW PRETEXT
As previously stated, defendants may rebut the
presumption of retaliation and, thus, are entitled to
summary disposition if they offer a legitimate justi-
fication for the elimination of plaintiff’s position
unless plaintiff can show that defendants’ justifica-
tion was a pretext for unlawful retaliation. Defen-
dants claimed that the board eliminated plaintiff’s
position out of economic necessity and, in support of
their motion for summary disposition, offered an
audit report that, according to defendants, showed
that the county was suffering financial strain and
required budget cuts. Defendants also offered the
affidavit of Shelly Myers, the Lake County Clerk and
Register of Deeds, which stated that the county was
facing “severe financial difficulties.” Plaintiff re-
sponded, claiming that defendants’ budgetary justifi-
cation was pretextual and, instead, the board’s moti-
vating factor for the elimination of her position was
punishment for her complaints about the board’s
allegedly illegal transfer of funds from the ambulance
fund.
Defendants argue that plaintiff cannot challenge
defendants’ budgetary justification because any chal-
lenge would either impermissibly question defendants’
“business judgment” or unconstitutionally require ju-
dicial review of a legislative body’s policy decision,
violating the separation of powers. We disagree.
2013] D
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1. BUSINESS-JUDGMENT RULE
Regarding whether plaintiff may question defen-
dants’ “business judgment,” we stated in Hazle, 464
Mich at 476, that a “plaintiff cannot simply show that
the employer’s decision was wrong or mistaken, since
the factual dispute at issue is whether discriminatory
animus motivated the employer, not whether the em-
ployer is wise, shrewd, prudent, or competent.” (Cita-
tion and quotation marks omitted.) And similarly, in
Dubey v Stroh Brewery Co, 185 Mich App 561, 565-566;
462 NW2d 758 (1990), the Court of Appeals held that
[t]here are three ways a plaintiff can establish that a
defendant’s stated legitimate, nondiscriminatory reasons
are pretexts: (1) by showing the reasons had no basis in
fact, (2) if they have a basis in fact, by showing that they
were not the actual factors motivating the decision, or (3) if
they were factors, by showing that they were jointly
insufficient to justify the decision. The soundness of an
employer’s business judgment, however, may not be ques-
tioned as a means of showing pretext.
In this case, plaintiff did not question whether the
decision to eliminate her position was “sound” or assert
that it ineffectively combated the county’s alleged fi-
nancial crisis. Rather, plaintiff asserted that defen-
dants’ proffered justification was false or had no “basis
in fact.” Id. at 565. In other words, plaintiff questioned
whether defendants’ decision was in fact an economic
decision by questioning the propriety of the county’s
audit report and the credibility of Myers. Specifically,
plaintiff identified financial figures in the audit report
that suggested that the county was not facing a budget-
ary crisis. Also, plaintiff discounted Myers’s credibility
by offering the minutes of a September 2004 county
personnel committee meeting during which several
county officials, including Myers, requested a pay raise
180 493 M
ICH
167 [Feb
in 2005. Because defendants relied on Myers’s repre-
sentation of the county’s financial status to show that
the board based its decision to eliminate plaintiff’s
position on legitimate budgetary concerns, arguably
Myers’s credibility was in issue, presenting a question
for the trier of fact with regard to whether defendants
actually offered a legitimate justification for the board’s
decision. See Brown v Pointer, 390 Mich 346, 354; 212
NW2d 201 (1973) (stating that “where the truth of a
material factual assertion of a movant’s affidavit de-
pends on the affiant’s credibility, there inheres a genu-
ine issue to be decided at a trial by the trier of fact and
a motion for summary judgment cannot be granted”).
Moreover, even if defendants’ position that the
county was facing economic hardship had a “basis in
fact,” plaintiff nonetheless provided evidence to show
that defendants’ budgetary justification was “not the
actual factor[] motivating the decision....”SeeDubey,
185 Mich App at 565-566. For example, plaintiff pro-
vided the deposition testimony of James Martin, who
worked at Lake County Central Dispatch. He testified
that during 2005 and 2006 defendants hired additional
full-time employees. Plaintiff also provided the county’s
budget worksheet for 2005, which, in the budget-
request column, indicated that several 911 dispatchers
would be given raises. Viewing this evidence in the light
most favorable to plaintiff, it is reasonable to conclude
that even if the county was facing economic difficulties,
those difficulties were not the board’s “motivating
factor” when it eliminated plaintiff’s position. See
Hazle, 464 Mich at 465.
Thus, plaintiff has successfully established a genuine
issue of material fact regarding the causation element
of her whistleblower claim because, when viewed in the
light most favorable to plaintiff, reasonable minds may
2013] D
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181
differ with regard to whether defendants’ facially legiti-
mate economic motivation was based in truth or
whether plaintiff’s additional evidence showed that the
motivating factor for the board’s adverse decision was
unlawful retaliation.
2. SEPARATION OF POWERS
Equally unpersuasive is defendants’ alternative ar-
gument: that despite the fact that plaintiff might have
offered sufficient evidence to create a triable issue of
fact regarding causation, plaintiff may not question the
board’s decision to eliminate her position because it
would require judicial review of a legislative policy
determination, violating the separation of powers. Al-
though defendants’ argument conflates legislative im-
munity with separation of powers, we hold that neither
doctrine precludes plaintiff’s claim or ability to chal-
lenge defendants’ budgetary justification for eliminat-
ing plaintiff’s position as a pretext for unlawful retali-
ation under the WPA.
Defendants argue that the board is a legislative body
and the board’s elimination of plaintiff’s position was a
legislative act. Regarding the latter assertion, defen-
dants cite Bogan v Scott-Harris, 523 US 44; 118 S Ct
966; 140 L Ed 2d 79 (1998). In Bogan, the United States
Supreme Court held that the termination of the plain-
tiff’s position was legislative in nature because the
discretionary policy decision “reach[ed] well beyond the
particular occupant of the office”; thus, the defendants,
local city legislators, were entitled to immunity. Id.at
49-51, 55-56. Bogan further reasoned that the determi-
nation of whether an action is legislative “turns on the
nature of the act, rather than on the motive or intent of
the official performing it.” Id. at 54. Indeed, this Court
has reached a similar conclusion regarding executive
182 493 M
ICH
167 [Feb
immunity. In American Transmissions, Inc v Attorney
General, 454 Mich 135, 143; 560 NW2d 50 (1997), we
stated that “[t]he Legislature’s grant of immunity...is
written with utter clarity. We need not reach the con-
cern that a malevolent-heart exception might not be
workable, since the Legislature has provided no such
test.”
4
However, defendants’ argument ignores the fact that
the WPA expressly waives legislative immunity, making
the act fully applicable to public employers. In An-
zaldua v Band, 457 Mich 530, 551-552; 578 NW2d 306
(1998), we stated that “[t]he Legislature expressly
applied the act to the state by including the state and its
political subdivisions in the definition of ‘employer.’ See
MCL 15.361(b); MSA 17.428(1)(b). Because the state is
expressly named in the act, it is within the act’s
coverage.” And notably, Anzaldua explained that the
waiver is consistent with the design of the WPA to
“protect the public from unlawful conduct by corpora-
tions and government bodies...byremoving barriers
to the reporting of violations of law by employees.” Id.
at 533. Thus, plaintiff’s claim is not barred by legisla-
tive immunity.
5
Considering the merits of defendants’ separation-of-
powers argument, the Michigan Constitution states that
4
See MCL 691.1407(5), which states that “[a] judge, a 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.”
5
While Bogan and MCL 691.1407(5) involve the extent to which an
individual legislator may be immune from liability, this case is arguably
distinguishable because only the liability of the board as a legislative body
is at issue. Thus, we decline to address whether the naming of an
individual board member as a defendant would have changed the
outcome of this case.
2013] D
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“[t]he 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
authority of local governments derives from article 7 of
Michigan’s 1963 Constitution and from the Legislature.
See Const 1963, art 7, § 1; see, also, City of Lansing v
Edward Rose Realty, Inc, 442 Mich 626, 632 n 5; 502
NW2d 638 (1993). The Constitution states that county
governments “shall have legislative, administrative and
such other powers and duties as provided by law.” Const
1963, art 7, § 8 (emphasis added).
6
And the Legislature
has delegated to county government the authority to
“[e]stablish rules and regulations in reference to the
management of the interest and business concerns of the
county as the board considers necessary and proper in all
matters not especially provided for in this act or under the
laws of this state.” MCL 46.11(m) (emphasis added).
In the present case, despite the board’s authority to
make budgetary decisions, judicial review of plaintiff’s
whistleblower claim, which asserts that the board’s
budgetary justification for her termination was pretex-
tual, does not violate the separation of powers. We have
held that
[i]t is one of the necessary and fundamental rules of law
that the judicial power cannot interfere with the legitimate
discretion of any other department of government. So long
as they do no illegal act, and are doing business in the range
of the powers committed to their exercise, no outside
authority can intermeddle with them....[Detroit v Wayne
Co Circuit Judge, 79 Mich 384, 387; 44 NW 622 (1890)
(emphasis added).]
6
Const 1963, art 7, § 8 refers to county boards of supervisors, but
Const 1963, art 7, § 2 permits “the organization of county government in
form different from that set forth in this constitution....”
184 493 M
ICH
167 [Feb
See, also, Veldman v Grand Rapids, 275 Mich 100, 113;
265 NW 790 (1936) (explaining that a court’s inquiry
into municipal affairs is limited to situations in which
there exists “a malicious intent, capricious action or
corrupt conduct, something which shows the action of
the body whose acts are complained of did not arise
from an exercise of judgment and discretion vested by
law in them”). As previously stated, plaintiff does not
argue that the board’s decision to eliminate her position
was a product of unsound or unwise judgment. Rather,
plaintiff argues that the board’s decision was unlawful
under the WPA and, thus, its decision fell outside the
otherwise legitimate discretion afforded to the board by
the Constitution and the Legislature. Thus, the trial
court, by merely providing plaintiff a forum in which to
litigate her statutory claim under the WPA, did not
infringe the board’s legitimate exercise of its judgment
and discretion.
Accordingly, given that the WPA expressly waives
legislative immunity, we hold that the question whether
the board lawfully exercised its authority when it
eliminated plaintiff’s position is subject to judicial re-
view. To hold otherwise would essentially allow defen-
dants an impenetrable defense because plaintiff lacked
direct evidence of retaliation and would render futile
the burden-shifting framework of McDonnell Douglas.
IV. CONCLUSION
In summary, we hold that the McDonnell Douglas
framework applies to plaintiff’s claim under the WPA
because plaintiff lacked direct proof of a causal connec-
tion showing that the board possessed a retaliatory
motivation when it eliminated her position. Addition-
ally, the Court of Appeals erred when it concluded that
plaintiff failed to show more than a temporal relation-
2013] D
EBANO
-G
RIFFIN V
L
AKE
C
OUNTY
185
ship between the protected activity and the adverse
employment action. In this case, plaintiff provided
additional evidence to establish her prima facie case—
particularly, the fact that plaintiff’s position became
unfunded within 12 days, which overlapped with when
plaintiff engaged in the protected activity.
Lastly, we hold that plaintiff successfully rebutted
defendants’ proffered budgetary justification for the
board’s adverse decision. And plaintiff’s ability to chal-
lenge the motives of the board did not call into question
the board’s business judgment because plaintiff’s argu-
ment was that the budgetary decision had no basis in
fact, not that its decision was unwise. Similarly, the trial
court, by entertaining plaintiff’s argument, did not
unconstitutionally infringe on the board’s legislative
function in violation of the separation of powers.
Thus, because plaintiff presented sufficient evidence
to conclude that reasonable minds could differ regard-
ing the board’s true motivation for eliminating plain-
tiff’s position, plaintiff raised a genuine issue of mate-
rial fact regarding causation and defendants were not
entitled to summary disposition. We reverse the judg-
ment of the Court of Appeals, reinstate the trial court’s
denial of defendants’ motion for summary disposition,
and reinstate the trial court’s order entering judgment
in favor of plaintiff.
Y
OUNG
, C.J., and M
ARKMAN
and M
ARY
B
ETH
K
ELLY
,JJ.,
concurred with C
AVANAGH
,J.
Z
AHRA
, J., took no part in the decision of this case
because he was on the Court of Appeals panel that
issued the October 15, 2009, opinion.
M
C
C
ORMACK
, J., took no part in the decision of this
case.
186 493 M
ICH
167 [Feb
PEOPLE v WHITE
Docket No. 144387. Argued October 11, 2012 (Calendar No. 8). Decided
February 13, 2013. Rehearing denied, 493 Mich 962.
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 moved
to suppress his inculpatory statements to the police. He argued
that the statements should be suppressed because they were made
after he had asserted his right to remain silent and in response to
the statements of a police officer that constituted 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 officer’s statements did not
constitute express questioning, the officer’s statements were the
functional equivalent of questioning. The prosecution appealed by
delayed leave granted. The Court of Appeals, W
ILDER
and M
URRAY
,
JJ. (S
HAPIRO
,P.J., dissenting), reversed, concluding that the offic-
er’s statements did not constitute the functional equivalent of
questioning given that (1) before defendant made his inculpatory
statements, the officer had advised defendant that he was not
asking defendant a question, but was only telling him that he
hoped the gun used in the charged offense was in a place where no
one could find it and be hurt, (2) nothing in the record indicated
that the officer was aware of any peculiar susceptibility of defen-
dant, and (3) the officer had not made a lengthy speech. 294 Mich
App 622 (2011). The Supreme Court granted defendant’s applica-
tion for leave to appeal. 491 Mich 890 (2012).
In an opinion by Justice M
ARKMAN
, joined by Chief Justice
Y
OUNG
and Justice Z
AHRA
, the Supreme Court held:
Defendant was not subjected to express questioning or its
functional equivalent after he invoked his right to remain silent,
and the Court of Appeals correctly reversed the trial court’s
decision to suppress defendant’s voluntary statements.
1. Under the Fifth Amendment of the United States Constitu-
tion, no person shall be compelled in any criminal case to be a
2013] P
EOPLE V
W
HITE
187
witness against himself or herself. The United States Supreme
Court held in Miranda v Arizona, 384 US 436 (1966), that to
protect that right, when the police continue to interrogate a
suspect in custody after the suspect has invoked the right to
remain silent and the suspect confesses as a result of the interro-
gation, the confession is inadmissible. The term “interrogation”
refers not only to express questioning, 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.
2. In this case, defendant was in custody. He was not, however,
subjected to express questioning. A question asks for or invites a
response. The officer’s comment concerning the location of the
gun did not ask for or invite a response, but was a mere expression
of hope and concern. Nor did the addition of the words “okay” and
“all right” at the end of the comment transform it into a question.
The officer used the words repeatedly during the colloquy to
indicate when he had finished a thought. Additionally, before
making the comment, the officer informed defendant that he was
not asking defendant questions. The officer’s statement in that
regard made it less likely that the officer would have reasonably
expected defendant to answer with an incriminating response.
Further, defendant’s subsequent statement did not concern the
gun’s location, reinforcing the conclusion that the officer’s com-
ment was not a question. That conclusion is also reinforced by the
fact that the officer seemed surprised by defendant’s inculpatory
statements.
3. Nor was defendant subjected to the functional equivalent of
questioning. There was nothing in the record to suggest that the
officer was aware that defendant was peculiarly susceptible to an
appeal to his conscience concerning the safety of others. The mere
fact that defendant was 17 years old and inexperienced with the
criminal justice system did not mean that defendant was pecu-
liarly susceptible. The fact that the officer was speaking directly to
the defendant was also not determinative given that the police did
not carry on a lengthy harangue in defendant’s presence and given
that the officer’s comment was not particularly evocative. Defen-
dant was not interrogated in violation of Miranda, and his
confession was admissible and had to be made fully available to the
jury.
Affirmed.
Justice C
AVANAGH
, dissenting, would have reversed the judg-
ment of the Court of Appeals and reinstated the trial court’s order
188 493 M
ICH
187 [Feb
suppressing defendant’s inculpatory statements. Assuming for the
sake of argument that defendant was not subjected to express
questioning, the officer’s statements amounted to the functional
equivalent of express questioning. The majority focused too
heavily on the similarities in the content of the statements in Innis
and this case and failed to give proper consideration to the context
in which the statements were made. The primary considerations of
Innis are the suspect’s perception of the officer’s statements and
whether the officer should have known that his or her comments
were reasonably likely to elicit an incriminating response. In this
case, unlike in Innis, the officer’s statements were made in a police
interrogation room and were expressly directed to defendant, the
only other person present. Regardless of whether the officer
subjectively expected defendant to respond to his statements,
defendant could have reasonably perceived that the officer was
seeking a response, and the officer should have known that it was
reasonably likely that defendant would respond. The use of
psychological ploys by the police may also constitute interrogation.
In this case, the officer’s statements had the characteristics of a
psychological ploy that exerted a compelling influence on defen-
dant because they played to the likelihood that defendant would
feel compelled to protect others. Defendant’s youth and inexperi-
ence with the criminal justice system also increased the likelihood
that he would feel compelled to respect and comply with the officer
as an authority figure and would perceive the officer’s statements
as requiring a response. As a result, defendant was improperly
subjected to the functional equivalent of express questioning.
Justice M
ARY
B
ETH
K
ELLY
, dissenting, would have reversed the
judgment of the Court of Appeals and suppressed defendant’s
statement because the officer engaged in the functional equivalent
of express questioning by exploiting defendant’s youth, a charac-
teristic that made him particularly susceptible to the officer’s
compulsive techniques. The United States Supreme Court has
spoken extensively about the unique characteristics of minors,
explaining that they are generally wanting in maturity, are more
susceptible to outside influences, and often lack the experience,
perspective, and judgment to recognize and avoid choices that
could be detrimental to them. They are uniquely susceptible to
police interrogative efforts and should reasonably be expected to
respond to those efforts. Given these unique characteristics,
minors have long been afforded a special regard in the law. In the
custodial-interrogation context, these characteristics require
courts to exercise special care in their scrutiny of the record. In
this case, the officer should have recognized that defendant’s age
made him especially susceptible to subtle compulsive efforts and
2013] P
EOPLE V
W
HITE
189
that such conduct would likely elicit an incriminating response.
Examined in their entirety, the officer’s remarks included a
number of police tactics to which a youth would be readily
susceptible. Accordingly, defendant was subjected to interrogation
after he invoked his right to remain silent.
Justice M
C
C
ORMACK
took no part in the decision of this case.
C
ONSTITUTIONAL
L
AW —
S
ELF
-I
NCRIMINATION —
C
USTODIAL
I
NTERROGATIONS —
E
XPRESS
Q
UESTIONING OR
I
TS
F
UNCTIONAL
E
QUIVALENT
.
Under the Fifth Amendment of the United States Constitution, no
person shall be compelled in any criminal case to be a witness
against himself or herself; the United States Supreme Court has
held that to protect that right, when the police continue to
interrogate a suspect in custody after the suspect has invoked the
right to remain silent and the suspect confesses as a result of the
interrogation, the confession is inadmissible; the term “interroga-
tion” refers not only to express questioning, 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; a police officer’s expression of concern about the location
of a firearm involved in the crime being investigated does not
necessarily constitute interrogation; a suspect’s youth and inexpe-
rience with the criminal justice system do not necessarily render
the suspect peculiarly susceptible to a particular form of persua-
sion (US Const, Am V).
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Henry C. Zavislak, Prosecuting At-
torney, and Jerrold Schrotenboer, Chief Appellate Attor-
ney, for the people.
Rappleye & Rappleye, P.C. (by Robert Karl Gaecke,
Jr.), for defendant.
M
ARKMAN
, J. The issue here is whether, in violation of
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d
694 (1966), defendant was subjected to “interrogation” or,
more specifically, “express questioning or its functional
equivalent,” Rhode Island v Innis, 446 US 291, 300-301;
100 S Ct 1682; 64 L Ed 2d 297 (1980), after he invoked his
190 493 M
ICH
187 [Feb
O
PINION OF THE
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OURT
right to remain silent. Because we agree with the Court of
Appeals that defendant was not subjected to such ques-
tioning after he invoked his right to remain silent, we
affirm the judgment of the Court of Appeals, which
correctly reversed the trial court’s decision to suppress
defendant’s voluntarily given confession.
I. FACTS AND PROCEDURAL HISTORY
Defendant allegedly turned a drug buy into an armed
robbery by pulling out a gun instead of proffering cash.
He and the victim allegedly struggled over the gun, the
gun went off, and the victim was killed. Defendant was
then taken into custody. After a police officer read
defendant his Miranda rights, the following colloquy,
which was recorded on a DVD, immediately ensued:
[Officer]: Okay. This is what they call the acknowledge-
ment 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?
[Defendant]: No. No thank you sir. I’m not going to sign
it.
[Officer]: Okay. Okay. Sounds good.
[Defendant]: I don’t even want to speak.
[Officer]: I understand. I understand Kadeem. 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 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 of it and nobody else can get hurt by it, okay.
All right.
2013] P
EOPLE V
W
HITE
191
O
PINION OF THE
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OURT
[Defendant]: I didn’t even mean for it to happen like
that. It was a complete accident.
[Officer]: 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. Yeah. 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.
[Defendant]: I know that I didn’t mean to do it. I
guarantee that, I know I didn’t mean to do it.
[Officer]: Does your dad know you’re down here?
[Defendant]: Yeah.
Defendant was charged with first-degree felony mur-
der, MCL 750.316(1)(b), armed robbery, MCL 750.529,
and possession of a firearm during the commission of a
felony, MCL 750.227b. Before trial, defendant moved to
suppress his statement to the police officer. The trial court
granted defendant’s motion, finding the officer’s
comment—“I hope that the gun is in a place where
nobody can get a hold of it and nobody else can get hurt by
it”—to be the functional equivalent of express question-
ing, which is prohibited after a defendant has invoked his
right to remain silent. In a published, and split, decision,
the Court of Appeals reversed. People v White, 294 Mich
App 622; 823 NW2d 118 (2011). The majority held that
the officer’s comment did not constitute the functional
equivalent of express questioning under Innis and thus
that there was no constitutional violation. The dissent
would have suppressed the confession because, with the
word “okay” appended to his expression of concern re-
garding the firearm, the officer’s comment constituted an
express question. At the very least, the dissent concluded,
the officer’s comment constituted the functional equiva-
lent of a question and was thus prohibited. This Court
192 493 M
ICH
187 [Feb
O
PINION OF THE
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granted defendant’s application for leave to appeal. People
v White, 491 Mich 890 (2012).
II. STANDARD OF REVIEW
Because the pertinent facts here are undisputed, we
review de novo the trial court’s decision regarding
whether defendant was subjected to “interrogation” or,
more specifically, “express questioning or its functional
equivalent.” Innis, 446 US at 300-301. We agree with
the Court of Appeals dissent that the majority erred by
applying the “clear error” standard of review in evalu-
ating whether such questioning occurred. As the dis-
sent explained, given that the facts are undisputed, the
de novo standard of review, not review for clear error, is
applicable. See People v Attebury, 463 Mich 662, 668;
624 NW2d 912 (2001) (“To the extent that a trial court’s
ruling on a motion to suppress involves an interpretation
of the law or the application of a constitutional standard to
uncontested facts, our review is de novo.”). However, this
error was harmless because the majority held that “[e]ven
under a de novo review of the evidence,...weconclude, as
did the trial court, that no express questioning occurred.”
White, 294 Mich App at 633.
III. ANALYSIS
The Fifth Amendment of the United States Consti-
tution provides that “[n]o person shall...becompelled
in any criminal case to be a witness against him-
self....”USConst, Am V. See also Const 1963, art 1,
§ 17. Notwithstanding the apparent textual focus of the
Fifth Amendment on whether a defendant’s confession
was undertaken voluntarily and without coercion,
1
the
1
Before Miranda, the admissibility of a confession depended on its
voluntariness. See Bram v United States, 168 US 532, 542-543; 18 S Ct
2013] P
EOPLE V
W
HITE
193
O
PINION OF THE
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United States Supreme Court has held since Miranda
that in the context of a “custodial interrogation,” ad-
vising a defendant of his Miranda rights
2
is necessary to
protect his constitutional privilege against self-
incrimination, and “[i]f the individual indicates in any
manner, at any time prior to or during questioning, that
he wishes to remain silent, the interrogation must
cease.” Miranda, 384 US at 444, 473-474. If the police
continue to “interrogate” the defendant after he has
invoked his right to remain silent, and the defendant
confesses as a result of that “interrogation,” the con-
fession is inadmissible. Id. at 444-445. However,
Miranda also clarified that voluntarily given confes-
sions that are not the result of impermissible custodial
interrogations remain admissible:
In dealing with statements obtained through interroga-
tion, we do not purport to find all confessions inadmissible.
Confessions remain a proper element in law enforcement.
Any statement given freely and voluntarily without any
compelling influences is, of course, admissible in evidence.
The fundamental import of the privilege while an indi-
vidual is in custody is not whether he is allowed to talk to
the police without the benefit of warnings and counsel, but
whether he can be interrogated. There is no requirement
183; 42 L Ed 568 (1897) (“ ‘[A] confession, in order to be admissible, must
be free and voluntary: that is, must not be extracted by any sort of threats
or violence, nor obtained by any direct or implied promises, however
slight, nor by the exertion of any improper influence.’ ”) (citation
omitted); Hardy v United States, 186 US 224, 229; 22 S Ct 889; 46 L Ed
1137 (1902) (“[S]tatements which are obtained by coercion or threat or
promise will be subject to objection.”); Malloy v Hogan, 378 US 1, 7; 84
S Ct 1489; 12 L Ed 2d 653 (1964) (“[T]he constitutional inquiry is not
whether the conduct of state officers in obtaining the confession was
shocking, but whether the confession was ‘free and voluntary....’”).
2
That is, “[p]rior to any questioning, the person must be warned that
he has a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed.” Miranda, 384 US at 444.
194 493 M
ICH
187 [Feb
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that police stop a person who enters a police station and
states that he wishes to confess to a crime, or a person who
calls the police to offer a confession or any other statement
he desires to make. Volunteered statements of any kind are
not barred by the Fifth Amendment and their admissibility
is not affected by our holding today. [Id. at 478.]
In this case, there is no question that defendant was
in “custody” and that after defendant was read his
Miranda rights, he invoked his right to remain silent.
Thus, the question here is whether, after defendant
invoked his right to remain silent, he was then sub-
jected to “interrogation.”
In Innis, 446 US at 300-302, the United States
Supreme Court explained the circumstances under
which a defendant is deemed to have been subjected to
“interrogation”:
[T]he Miranda safeguards come into play whenever a
person in custody is subjected to either express questioning or
its functional equivalent. That is to say, the term “interroga-
tion” under Miranda refers not only to express questioning,
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 safeguards were designed
to vest a suspect in custody with an added measure of
protection against coercive police practices, 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 unforeseeable 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 in-
criminating response. [Emphasis in the original.]
2013] P
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195
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The Court further explained, however, that the under-
lying intent of the police is not irrelevant:
[I]t 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. In
particular, where a police practice is designed to elicit an
incriminating response from the accused, it is unlikely that
the practice will not also be one which the police should
have known was reasonably likely to have that effect. [Id.
at 301 n 7.]
But again, as one academic commentator explained, the
focus must be on the objective manifestation of the
officer’s words rather than on the officer’s subjective
intentions in speaking the words:
[T]he best reading of the Innis test is that it turns upon
the objective purpose manifested by the police. Thus, an
officer “should know” that his speech or conduct will be
“reasonably likely to elicit an incriminating response”
when he should realize that the speech or conduct will
probably be viewed by the suspect as designed to achieve
this purpose. To ensure that the inquiry is entirely objec-
tive, the proposed test could be framed as follows: if an
objective observer (with the same knowledge of the suspect
as the police officer) would, on the sole basis of hearing the
officer’s remarks, infer that the remarks were designed to
elicit an incriminating response, then the remarks should
constitute “interrogation.” [2 LaFave, Criminal Procedure
(3d ed), § 6.7(a), p 757, quoting White, Interrogation With-
out Questions: Rhode Island v. Innis and United States v.
Henry, 78 Mich L R 1209, 1231-1232 (1980) (emphasis in
the original).]
On the basis of the foregoing principle, Innis con-
cluded that the defendant was not “interrogated”
within the meaning of Miranda. The defendant had
been suspected of robbing and killing taxicab drivers
with a sawed-off shotgun. When the police arrested
him, they repeatedly read him his Miranda rights, and
196 493 M
ICH
187 [Feb
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the defendant invoked his right to counsel. On the way
to the police station, the defendant was in the backseat
of a squad car accompanied by three officers. The
officers were having a conversation and one of them
stated that there were “a lot of handicapped children
running around in this area” because a school for
handicapped children was located nearby, and “God
forbid one of them might find a weapon with shells and
they might hurt themselves.” Innis, 446 US at 294-295.
In the course of this conversation, the officers were
interrupted by the defendant, who directed them to
turn the squad car around so that he could show them
where the gun was hidden.
The Court held that the defendant had not been
“interrogated” in violation of Miranda because he was
neither subjected to “express questioning” nor its
“functional equivalent.” Regarding the latter, the Court
noted that (1) “[t]here is nothing in the record to
suggest that the officers were aware that the respon-
dent was peculiarly susceptible to an appeal to his
conscience concerning the safety of handicapped chil-
dren”; (2) “[n]or is there anything in the record to
suggest that the police knew that the respondent was
unusually disoriented or upset at the time of his ar-
rest”; (3) “the entire conversation appears to have
consisted of no more than a few offhand remarks”; (4)
“[t]his is not a case where the police carried on a
lengthy harangue in the presence of the suspect”; (5)
“[n]or does the record support the respondent’s conten-
tion that, under the circumstances, the officers’ com-
ments were particularly ‘evocative.’ ” Id. at 302-303.
Finally, the Court held that the lower court had
“erred...inequating ‘subtle compulsion’ with interro-
gation” because even when there is subtle compulsion,
“[i]t must also be established that a suspect’s incrimi-
nating response was the product of words or actions on
2013] P
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197
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the part of the police that they should have known were
reasonably likely to elicit an incriminating response.”
Id. at 303.
In the instant case, we agree with the Court of
Appeals that defendant was not subjected to “express
questioning” after he invoked his right to remain silent.
First, a “question” asks for or invites a response. Id. at
302 (holding that the respondent was not subjected to
“express questioning” because “no response from the
respondent was invited”); Random House Webster’s
College Dictionary (2001) (defining “question” as “a
sentence in an interrogative form addressed to someone
in order to get information in reply” or “the act of
asking or inquiring”). The officer’s comment in this
case—“I hope that the gun is in a place where nobody
can get a hold of it and nobody else can get hurt by
it”—was not a question because it did not ask for an
answer or invite a response. It was a mere expression of
hope and concern.
Second, the officer’s addition of the words “okay”
and “all right” at the end of his comment did not
transform a non-question into a question. This is espe-
cially obvious when the conversation is considered in its
entirety, as it must be, because the officer repeatedly
used the words “okay” and “all right” in a manner that
failed to garner any response from defendant. See
Acosta v Artuz, 575 F3d 177, 191 (CA 2, 2009) (“Innis
calls upon courts to consider police conduct in light of
the totality of the circumstances in assessing whether
the police ‘should have known’ that their actions ‘were
reasonably likely to elicit an incriminating re-
sponse.’ ”), quoting Innis, 446 US at 303. We agree with
Justice C
AVANAGH
that
it is not unusual for people to use certain words or phrases
repeatedly while speaking without intending for those
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words to have significant meaning. In fact, during the
approximately five-minute-long colloquy between Stiles
and defendant, Stiles repeatedly used the phrases “okay”
and “all right” to punctuate statements, apparently with-
out intending to extract a response from defendant. [Post
at 212-213.]
Indeed, the officer used the word “okay” 17 times
during the 5-minute conversation, and yet defendant
only “responded” 3 times, including the “response” that
is at issue in this case, and the other 2 “responses”—if
that is even a proper characterization of what defen-
dant’s statements amounted to—were simply “yeah”
and “okay.” Similarly, the officer used the phrase “all
right” 4 times during the 5-minute conversation and
only in this one instance did defendant again “respond,”
and, as discussed later in this opinion, that “response”
was in no way responsive to the officer’s statement
because defendant said nothing about the gun—the
very matter that had been the subject of the officer’s
statement. Moreover, from our own review of the video
of the interview, the officer’s comment, at least in our
judgment, does not at all sound like a question. That is,
the officer did not say the words “okay” and “all right”
in a manner and with an emphasis that would have
made a reasonable person believe that a response was
expected. Instead, the use of these words reflected
essentially a verbal tic on the officer’s part meaning,
“Okay, all right, I have finished my thought.”
Furthermore, immediately before the officer made
the statement at issue, he said, “I’m not asking you
questions, I’m just telling you.” Although this is cer-
tainly not dispositive of whether what follows consti-
tuted a “question,” it is nevertheless relevant with
regard to whether the officer reasonably should have
expected an answer. The very utterance itself made it
less likely either that the officer would have reasonably
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expected defendant to answer with an incriminating
response or that defendant would have proffered an
incriminating response.
3
Moreover, as previously noted, the fact that defen-
dant’s “response” to the officer’s comment concerning
the location of the gun did not have anything at all to do
with the location of the gun also reinforces the conclu-
sion that the officer’s comment here was not a question.
If it was a question, defendant certainly did not answer
it. Instead, defendant said: “I didn’t even mean for it to
happen like that. It was a complete accident.” If defen-
dant was answering the officer’s “question,” one would
think that he would have said something about the
location of the gun, but he did not, and this, in our
judgment, underscores that the officer’s comment was
not a question to begin with.
In addition, the fact that the officer responded to
defendant’s incriminating statement by saying, “[Y]ou,
uhh, you get your attorney, man,” and then asking
defendant if his family knew that he was there, suggests
that the officer was not expecting or trying to obtain an
incriminating response from defendant. Instead, it
seems that the officer was taken somewhat by surprise
by defendant’s incriminating statement, and he imme-
diately sought to veer the conversation away from any
3
We generally agree with Justice C
AVANAGH
that although “such
statements do not magically transform what would otherwise be an
express question into a constitutionally benign comment,” “such quali-
fying statements might, in some situations, be relevant to a court’s
consideration of the totality of the circumstances....”Post at 211-212.
Indeed, we believe that such prefatory language will almost always be of
at least some relevance to the court’s “totality of circumstances” analysis
in the sense that, whatever the subjective intentions of the officer, his
disclaimer that no question is being asked, and thus that no answer is
expected, can be assumed to have at least some deterrent effect on a
defendant in answering the “question” on the assumption that the officer
means what he says.
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further incriminating statements. The fact that the
officer was caught off guard by defendant’s incriminat-
ing statement further underscores that the officer’s
comment was not “designed to elicit an incriminating
response....”Innis, 446 US at 302 n 7.
Finally, to the extent that the officer’s statement can
even be reasonably viewed as a question, this particular
question does not seem intended to generate an incrimi-
nating response.
4
Instead, if anything, the officer was
4
The Court of Appeals dissent stated that “it is difficult to conceive of
another reason” for the officer to have said what he did other than to get
defendant to make an incriminating statement. White, 294 Mich App at
639 (S
HAPIRO
,P.J., dissenting). However, perhaps the officer was simply
genuinely concerned about somebody getting hold of the gun and injuring
either themselves or somebody else. Just as
“in Innis, there is a basis for concluding that the officer’s remarks
were made for some purpose other than that of obtaining evidence
from the suspect” because an “objective listener could plausibly
conclude that the policemen’s remarks in Innis were made solely
to express their genuine concern about the danger posed by the
hidden shotgun.” [2 LaFave at 757 n 20, quoting White, 78 Mich L
R at 1234-1235 (emphasis in the original).]
See also Innis, 446 US at 303 n 9 (“[I]t was ‘entirely understandable that
[the officers] would voice their concern [for the safety of the handicapped
children] to each other.”) (alterations in the original). Furthermore,
given that after the officer said something about the gun, he asked
defendant if his family knew where he was, perhaps the officer was
hoping that defendant might tell a family member where the gun was if
it was not in a safe location so that a family member could ensure that the
gun was moved to a safe location. Finally, “the mere fact that a police
officer may be aware that there is a ‘possibility’ that a suspect may make
an incriminating statement is insufficient to establish the functional
equivalent of interrogation.” United States v Taylor, 985 F2d 3, 8 (CA 1,
1993), citing Arizona v Mauro, 481 US 520, 528-529; 107 S Ct 1931; 95 L
Ed 2d 458 (1987) (“Officers do not interrogate a suspect simply by hoping
that he will incriminate himself.”). Contrary to Justice C
AVANAGH
’s
intimation, we fully recognize that the officer’s subjective intent is not
dispositive. However, as Innis, 446 US at 301 n 7, explained, such intent
is not “irrelevant” either, and it is especially not “irrelevant” when a
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simply trying to ensure that defendant heard and
understood him. As the Court of Appeals explained:
[W]e conclude, as did the trial court, that no express
questioning occurred. After defendant invoked his right to
remain silent, the detective informed defendant that he
was not asking any more 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
statement, 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 response to
the statement. Consequently, there was no express ques-
tioning of defendant. [White, 294 Mich App at 633-634.]
We further agree with the Court of Appeals that
defendant was not subjected to the “functional equiva-
lent” of express questioning after he invoked his right
to remain silent. Just as in Innis, there is nothing in the
record to suggest that the officer was aware that
defendant was “peculiarly susceptible to an appeal to
his conscience” concerning the safety of others. Innis,
446 US at 302. Justice C
AVANAGH
asserts that the
officer’s comment about the gun “played to the likeli-
hood that defendant would respond to an expression of
concern for the safety of others.” Post at 225 (emphasis
added). However, we have a difficult time fathoming
that the officer believed that defendant was “peculiarly
susceptible to an appeal to his conscience,” especially
where defendant had just been arrested for shooting
another man to death for drugs. That is, under these
circumstances, and absent any evidence of defendant’s
dissenting Court of Appeals judge has specifically asserted that the officer
must have subjectively intended to coerce defendant to respond to the
officer’s comments.
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peculiar susceptibility, we are not persuaded that the
officer here should have known that “defendant would
perceive the [officer’s] comments as compelling a re-
sponse in order to protect others....”Post at 227.
Although Justice C
AVANAGH
states that “several of
defendant’s individual personal characteristics in-
creased the likelihood that he would perceive Stiles’s
comments as requiring a response,” post at 229, he only
articulates two such characteristics: “defendant’s youth
and inexperience with the criminal justice system,” post
at 228-229. However, the mere fact that defendant was
17 years old and inexperienced in the criminal justice
system does not mean that he was “peculiarly suscep-
tible to an appeal to his conscience” or “unusual[ly]
susceptib[le]... to a particular form of persua-
sion....”Innis, 446 US 302.
5
Indeed, not even defen-
dant himself has argued that he possesses any personal
characteristics that made it more likely that he would
feel compelled to respond to the officer’s comment
about the gun. And indeed, as previously discussed,
defendant never did truly “respond” to the officer’s
comment about the gun—he never told the officer
where the gun was. Therefore, the alleged importun-
ings of the officer with regard to the safety of other
persons must not have moved defendant excessively or
weighed too heavily on his conscience.
6
5
In the case relied on heavily by Justice M
ARY
B
ETH
K
ELLY
—JDB v
North Carolina, 564 US ___; 131 S Ct 2394, 2398, 2406; 180 L Ed 2d 310
(2011), which, unlike the instant case, involved a 13-year-old boy—the
United States Supreme Court held that although “the age of a child
subjected to police questioning is relevant to the custody analysis of
Miranda,” “[t]his is not to say that a child’s age will be a determinative,
or even a significant, factor in every case.”
6
Justice K
ELLY
contends that we focus exclusively on the officer’s
comment about the gun and ignore his “references to violence and
attempts to earn defendant’s trust through expressions of understanding
and references to defendant’s family.” Post at 235 n 20. The only
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Also, just as in Innis, there is nothing in the record to
suggest that the officer here was aware that defendant
was “unusually disoriented or upset at the time of his
arrest.” Innis, 446 US at 303. Furthermore, the officer
only made a single remark about the gun. “This is not
a case where the police carried on a lengthy harangue in
the presence of the suspect.” Id. Nor was the officer’s
remark “particularly ‘evocative.’ ” Id. Indeed, the offic-
er’s comment in the instant case was far less “evoca-
tive” than the officer’s comment in Innis.InInnis, the
officer said, “[T]here’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.” Id. at 294-295. In the instant case,
the officer said, “I hope that the gun is in a place where
nobody can get a hold of it and nobody else can get hurt
byit....”Unlike the officer in Innis, the officer here
did not invoke God or handicapped children. And even
if the officer’s remark could be considered “subtle
compulsion,” Innis held that “subtle compulsion” is not
“interrogation.” Id.
7
purported “reference to violence” was the officer’s statement: “You could
have came down to me and turned yourself in and there ain’t no damn
way I’d beat you up.” That is, the officer said that he would not have beat
defendant up. Accordingly, the officer’s statement is probably better
understood as a reference to nonviolence than to violence. And while it is
true that the officer did refer to defendant’s family and did render
expressions of understanding, we hardly believe that these statements
transformed a non-interrogation into an interrogation. Nor do we do not
believe that police officers violate the United States Constitution by
rendering expressions of understanding to suspects or by inquiring as to
whether their families are aware that they are in custody.
7
Contrary to Justice C
AVANAGH
’s contention, Mauro did not hold that
subjecting a suspect to “psychological ploys” constitutes “interrogation.”
Post at 223-224. Mauro simply noted that the defendant in that case had
not been subjected to “psychological ploys.” Mauro, 481 US at 529. This
by no means indicates that “psychological ploys” necessarily constitute
“interrogation.” Indeed, as previously discussed, Innis, 446 US at 303, ex-
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Justice C
AVANAGH
is correct that the instant case is
factually distinguishable from Innis in the sense that
the officers in Innis were talking to themselves, and not
directly to the defendant, about the gun, whereas in the
instant case, the officer was clearly talking directly to
defendant about the gun given that defendant was the
only other person in the room.
8
However, we do not
pressly held that “subtle compulsion” does not constitute “interroga-
tion.” See also Acosta, 575 F3d at 189 (stating that “police conduct would
not qualify as interrogation simply because it ‘struck a responsive chord’
in a defendant”), quoting Innis, 446 US at 303. Furthermore, we do not
view what happened here as a “psychological ploy” at all. Justice
C
AVANAGH
contends that “the record is devoid of any support for the
majority’s speculation regarding Stiles’s subjective intent in making the
statements at issue.” Post at 220 n 2. However, the record is equally
devoid of any contrary subjective intent, and why should an officer of the
law expressing concern about the risk to others being posed by an
abandoned firearm be presumed to be engaged in a “psychological ploy”?
Why can’t it be presumed, absent more, that the expression of such a
concern is sincere and genuine and an altogether legitimate aspect of the
officer’s professional responsibilities? Indeed, it is difficult to imagine a
more legitimate concern that an officer of the law might express.
8
Justice C
AVANAGH
relies heavily on In re EG, 482 A2d 1243 (DC, 1984),
for the proposition that whether the officer was talking directly to the
defendant is a significant factor. In In re EG, the officer was told that a
man wearing a beige hat and dark sunglasses had just committed an
armed robbery. When the officer stopped the defendant and found a beige
hat and dark sunglasses in the defendant’s pocket, the officer said: “Here
is the sunglasses and the hat. I wonder where the gun and money is [sic].”
Id. at 1245. The defendant responded, “I gave it to my partner.” Id. The
District of Columbia Court of Appeals held that the officer’s statement
constituted “interrogation” because “there was no understandable expla-
nation for [the officer’s] rhetorical question other than to elicit a
response from appellant.” Id. at 1248. In the instant case, however, as
previously discussed, there is a reasonable explanation for the officer’s
comment other than to elicit an incriminatory response from
defendant—a genuine and legitimate concern about the danger posed by
the missing gun. In re EG is also distinguishable from the instant case
because in that case, the defendant was never told that he had a right to
remain silent, while in the instant case defendant was informed that he
had a right to remain silent, he invoked that right, and before the officer
made the comment about the gun he specifically told defendant that it
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believe that this difference alone requires a different
outcome.
9
As the Court of Appeals explained, “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.” White, 294 Mich App at 635.
For example, in Fleming v Metrish, 556 F3d 520, 523
(CA 6, 2009), when an officer told the suspect after the
suspect had invoked his right to remain silent that
“things did not look good for him and that ‘maybe he
needed to do the right thing’ ” and asked the suspect if
he now wanted to talk to the lead detective, the court
held that this did not constitute “interrogation.” The
was a statement, not a question. Finally, in In re EG, the officer made the
comment while his service revolver was drawn and the defendant had his
hands on the roof of the officer’s police cruiser, while here the officer
made the comment during a completely civil conversation with defendant
at the police station. Therefore, not only is In re EG, of course, not
binding on this Court, but it is also distinguishable on significant
grounds.
9
Contrary to Justice C
AVANAGH
’s contention, we do not “fail[] to give
proper consideration to the context in which the statements were made.”
Post at 218 (emphasis in the original). Instead, we are fully cognizant that
the officer’s comments at issue here were made in a distinct context from
those at issue in Innis, because while the officer in Innis was speaking to
another officer, the officer here was speaking to the defendant himself.
However, this appears to be the only contextual difference relied on by
Justice C
AVANAGH (
other than that the defendant in Innis was in a police
car, while the defendant here was in a police interrogation room, which
we believe is a distinction without a meaningful difference), and for the
reasons explained above, we do not believe that this distinction by itself,
although certainly a distinction, compels a different result. And contrary
to Justice C
AVANAGH
’s intimation, the fact that two of the dissenting
justices in Innis opined that the officers’ “remarks ‘would obviously have
constituted interrogation if they had been explicitly directed to respon-
dent’ ” is of little relevance because they were dissenting. Post at 219,
quoting Innis, 446 US at 305 (Marshall, J., dissenting). What is relevant
is that the majority in Innis did not rely on the fact that the officers were
not talking directly to the defendant in its analysis of whether the officers
subjected the defendant to the functional equivalent of express question-
ing.
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court specifically rejected that there was a significant
distinction between the officers’ conversation in Innis
and the comments directed to the defendant:
We recognize that Innis is arguably distinguishable on
the basis that the conversation in Innis occurred between
two police officers, and was not directed toward the suspect
himself. Officer Clayton’s brief remarks were, in contrast,
clearly aimed at Fleming. Such a distinction might be
significant if an officer’s brief remarks morphed into, for
example, a “lengthy harangue” because, other things being
equal, extended comments directed toward a suspect are
more likely to elicit an incriminating response. But this
court has previously rejected a constitutional challenge to
cursory comments aimed at a suspect in an analogous
context. See United States v. Hurst, 228 F.3d 751, 760 (6th
Cir.2000) (holding that “the mere statement by [a law-
enforcement official] that ‘we’ve got good information on
you,’ viewed in context, contains no compulsive element
suggesting a Fifth Amendment violation under the circum-
stances.”). [Id. at 527 (alteration in the original).]
Indeed, “courts have generally rejected claims...that
disclosure of the results of a lineup or other inculpatory
evidence possessed by the police, without more, consti-
tutes ‘interrogation’ under Innis.” Acosta, 575 F3d at
191. See, for example, Easley v Frey, 433 F3d 969, 974
(CA 7, 2006) (holding that informing the defendant that
an eyewitness was willing to testify against him and
that if convicted he could be subject to the death penalty
did not constitute “interrogation”); United States v
Payne, 954 F2d 199, 203 (CA 4, 1992) (holding that
informing the defendant that a gun was found at his
home did not constitute “interrogation”); Shedelbower
v Estelle, 885 F2d 570, 572-573 (CA 9, 1989) (holding
that informing the defendant that his accomplice had
been arrested and that the victim had identified him as
one of her assailants after being shown his photograph
did not constitute “interrogation”); People v McCuaig,
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126 Mich App 754, 760; 338 NW2d 4 (1983) (holding
that “the statements made by the police officer, which
merely advised defendant of the crime with which he
was charged and which described the events which led
to that charge, cannot be characterized as further
interrogation by the officer or its functional equiva-
lent”); People v Kowalski, 230 Mich App 464, 467-469,
483; 584 NW2d 613 (1998) (holding that informing the
defendant that his accomplice had given a statement
and inquiring whether the defendant still wanted an
attorney did not constitute “interrogation”).
Accordingly, direct statements to the defendant do
not necessarily constitute “interrogation.”
10
Again, the
dispositive question is whether the “suspect’s incrimi-
nating response was the product of words or actions on
the part of the police that they should have known were
reasonably likely to elicit an incriminating response.”
Innis, 446 US at 303. And for the reasons set forth, we
do not believe that defendant’s incriminating response
in this case can be characterized as such a product. As
the Court of Appeals explained:
[N]othing 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 statement in its context, we can
only conclude that Detective Stiles should not have reason-
ably expected defendant to make an incriminating state-
ment. After all, Detective Stiles had already told defendant
both that he was not asking a question and that he
10
Although we recognize that none of the cited decisions fully addresses
the specific circumstances at issue here—few criminal cases are factually
identical—these decisions are nonetheless helpful in resolving the present
question because they all stand in common for the proposition that direct
statements to a defendant do not necessarily constitute “interrogation.”
Therefore, the fact that the statement at issue here was a direct statement
to defendant cannot, by itself, support Justice C
AVANAGH
’s conclusion that
the officer’s statement constituted “interrogation.”
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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 defendant and a defen-
dant overhearing remarks between police as in Innis
insufficient to come to a different constitutional conclu-
sion. [White, 294 Mich App at 632.]
IV. CONCLUSION
For these reasons, we agree with the Court of Appeals
that defendant was not “interrogated” in violation of
Miranda. Therefore, we affirm the judgment of the
Court of Appeals, which reversed the trial court’s
decision to suppress defendant’s voluntarily given con-
fession. Defendant’s confession must be made fully
available to the jury in its pursuit of the truth with
regard to what occurred in this case.
Y
OUNG
, C.J., and Z
AHRA
, J., concurred with M
ARKMAN
,
J.
C
AVANAGH
,J.(dissenting). This case raises the issue
of whether defendant, who was 17 years old at the time,
was subjected to “interrogation” after invoking his
Fifth Amendment right against compelled self-
incrimination, contrary to Miranda v Arizona, 384 US
436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). In my view,
defendant was improperly subjected to the “functional
equivalent” of interrogation under Rhode Island v
Innis, 446 US 291; 100 S Ct 1682; 64 L Ed 2d 297
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AVANAGH
,J.
(1980); thus, I would reverse the judgment of the Court
of Appeals, reinstate the trial court’s order suppressing
defendant’s incriminating statements, and remand this
case to the trial court for proceedings consistent with
this opinion.
The United States and Michigan Constitutions guar-
antee the right against compelled self-incrimination.
US Const, Am V; Const 1963, art 1, § 17. The United
States Supreme Court has explained that “the prosecu-
tion may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of
the defendant unless it demonstrates the use of proce-
dural safeguards effective to secure the privilege
against self-incrimination.” Miranda, 384 US at 444.
The necessary “procedural safeguards” are embodied in
the now familiar Miranda warnings. Innis, 446 US at
297; Colorado v Spring, 479 US 564, 572; 107 S Ct 851;
93 L Ed 2d 954 (1987). The United States Supreme
Court has “consistently...accorded a liberal construc-
tion” to the privilege against self-incrimination,
Miranda, 384 US at 461, while still recognizing that
“[c]onfessions remain a proper element in law enforce-
ment” and “[v]olunteered statements of any kind are
not barred by the Fifth Amendment,” id. at 478. In-
deed, not all statements obtained by the police after a
person has been taken into custody are automatically
considered the product of interrogation. Innis, 446 US
at 299. Rather, interrogation “must reflect a measure of
compulsion above and beyond that inherent in custody
itself.” Id. at 300. However, if at any time “the indi-
vidual indicates in any manner... that he wishes to
remain silent, the interrogation must cease.” Miranda,
384 US at 473-474.
In this case, it is undisputed that defendant was in
custody, was given Miranda warnings, and had invoked
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AVANAGH
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his right to remain silent before he made incriminating
statements. Thus, the primary issue in this case is
whether defendant was subjected to custodial interro-
gation after invoking his right to remain silent. The
United States Supreme Court has explained that inter-
rogation includes “questioning initiated by law enforce-
ment officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any
significant way,” id. at 444; see, also, Yarborough v
Alvarado, 541 US 652, 661; 124 S Ct 2140; 158 L Ed 2d
938 (2004), but, in subsequent opinions, the Court has
further explained that “interrogation” is not limited
only to express questioning. Rather, certain “techniques
of persuasion” may also amount to interrogation. Innis,
446 US at 299. Accordingly, “interrogation” includes
either “express questioning or its functional equiva-
lent.” Id. at 300-301.
Although caselaw provides little guidance regarding
how to determine whether specific statements by the
police amount to express questioning, Innis explained
that if a police officer’s statement does not invite a
response from the suspect, the statement does not
amount to express questioning. Id. at 302. Although a
communication asking someone for an answer obvi-
ously amounts to express questioning because it is a
clear example of a remark that invites a response, Innis
should not be interpreted to mean that only explicit or
direct questions can amount to express questioning
because other types of statements may also invite a
response. Accordingly, police officers cannot remove
their comments from the realm of express questioning
merely by prefacing the comments with limiting
phrases such as “I’m not asking you questions” or “I’m
just telling you,” as Detective Brett Stiles did in this
case. Although such qualifying statements might, in
some situations, be relevant to a court’s consideration
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AVANAGH
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of the totality of the circumstances, in my view merely
prefacing a statement with “I’m not asking a question,”
“I’m just telling you,” or other similar phrases should
not be given significant weight because such statements
do not magically transform what would otherwise be an
express question into a constitutionally benign com-
ment. For example, the statement “I’m not asking you
a question, I’m just telling you I want to know why you
killed those people” would clearly be an express ques-
tion under Miranda and Innis because it invites a
response, regardless of the interrogator’s use of a
lead-in statement. See Innis, 446 US at 302.
Turning to the unique details of the statements at
issue in this case, several characteristics of Stiles’s
statements indicate that he was asking an express
question of defendant. First, defendant and Stiles were
the only two people in the interrogation room when
Stiles made the statements. Thus, Stiles was obviously
directing his statements to defendant. Second, when
considered in context, the phrases “okay” and “all
right” seem to invite defendant to respond by, at a
minimum, acknowledging that he heard what Stiles had
said. Third, after punctuating his statements with
“okay,” Stiles paused for several seconds, as if waiting
for a response from defendant. When defendant did not
respond, Stiles followed up by stating, “All right?”
which, again, could be interpreted as inviting a re-
sponse from defendant.
On the other hand, I agree with the majority that
other characteristics of Stiles’s statements weigh
against the conclusion that the statements amounted to
express questioning. Most notably, it is not unusual for
people to use certain words or phrases repeatedly while
speaking without intending for those words to have
significant meaning. In fact, during the approximately
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five-minute-long colloquy between Stiles and defen-
dant, Stiles repeatedly used the phrases “okay” and “all
right” to punctuate statements, apparently without
intending to extract a response from defendant.
As the preceding discussion reveals, the totality of
the circumstances surrounding Stiles’s statements al-
lows for persuasive arguments in support of differing
conclusions regarding whether Stiles subjected defen-
dant to express questioning. However, I will assume
arguendo, for purposes of this appeal only, that defen-
dant was not subjected to express questioning because I
believe that even if Stiles’s comments were not “express
questions,” the comments nevertheless amounted to
the “functional equivalent” of express questioning for
the reasons discussed later in this opinion.
The “functional equivalent” of express questioning
encompasses “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.” Innis, 446 US at 301. An “incriminating
response” is “any response—whether inculpatory or
exculpatory—that the prosecution may seek to intro-
duce at trial.” Id.at301n5.Innis further explained
that the requirement that the words or action be
reasonably likely to elicit an incriminating response
focuses primarily upon the perceptions of the suspect,
rather than the intent of the police. This focus reflects the
fact that the Miranda safeguards were designed to vest a
suspect in custody with an added measure of protection
against coercive police practices, without regard to objec-
tive 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. [Id. at 301.]
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However, the police “cannot be held accountable for
the unforeseeable results of their words or actions....”
Id. at 302. Accordingly, “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.
The Innis Court made two additional important
points regarding the definition of “interrogation.”
First, the Court stated that although the suspect’s
perception is the primary focus of the inquiry, the intent
of the police is also relevant because “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.” Id. at 301 n 7. Indeed,
“where a police practice is designed to elicit an incrimi-
nating response from the accused, it is unlikely that the
practice will not also be one which the police should
have known was reasonably likely to have that effect.”
Id.
Second, in determining whether the police should
have known that their words or actions were reasonably
likely to elicit an incriminating response, “[a]ny knowl-
edge the police may have had concerning the unusual
susceptibility of a defendant to a particular form of
persuasion might be an important factor....” Id. at
302n8.
Several opinions provide some examples that assist
in establishing the boundaries of “interrogation” under
the “functional equivalent” analysis for Miranda pur-
poses. For example, in United States v Payne, 954 F2d
199, 202 (CA 4, 1992), the court concluded that “mere
declaratory descriptions of incriminating evidence do
not invariably constitute interrogation for Miranda
purposes.” Likewise, Acosta v Artuz, 575 F3d 177,
191-192 (CA 2, 2009), cited several cases supporting the
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premise that, generally, disclosure of the results of a
lineup or other inculpatory evidence possessed by the
police, without more, does not constitute interrogation
under Innis. See, also, United States v Moreno-Flores,
33 F3d 1164, 1169 (CA 9, 1994) (holding that the
defendant was not interrogated when police informed
him that drugs had been seized and that he “was in
serious trouble”), People v McCuaig, 126 Mich App 754,
760; 338 NW2d 4 (1983) (finding no interrogation when
an officer advised the defendant of the charges he was
facing and described the events that resulted in the
charge), and Fleming v Metrish, 556 F3d 520, 533 (CA 6,
2009) (permitting comments explaining the inculpatory
evidence possessed by the police so that the suspect
could “reassess his situation” and “make informed and
intelligent assessments of [his] interests”) (quotation
marks and citation omitted) (alteration in original).
The common thread running through these cases is
that the police generally do not interrogate a suspect for
purposes of Miranda if the comments merely provide
the suspect with additional information about the
course of the investigation and allow the suspect to
reconsider his or her decision to invoke the right to
remain silent. I agree with the majority that these cases
are helpful to the extent that they show that some
limited communication with the suspect regarding the
case after the invocation of the Fifth Amendment right
to remain silent may be permissible under Miranda.
However, the general principle established by these
cases does not, alone, resolve this case because Stiles’s
expression of concern regarding the gun’s location “did
not provide defendant with information about the
charges against him, about inculpatory evidence the
police possessed, or about witness statements.” White,
294 Mich App at 638n5(S
HAPIRO
, J., dissenting). Nor
did his comments “offer any new information that could
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provide a basis for an intelligent reassessment of the
defendant’s decision to remain silent.” Id. Accordingly,
applying this line of cases to conclude that Stiles’s
comments were not the functional equivalent of inter-
rogation would erroneously expand the analysis beyond
its intended scope of applicability.
Although Stiles’s comments do not fall into the
categories of statements that are generally outside the
scope of interrogation, I agree with the majority that
this fact alone is not sufficient to label the comments
“interrogation” under Innis. Rather, it is necessary to
consider the Innis definition of “interrogation” in
greater detail. Particularly important to deciding this
case is (1) whether Stiles should have known that his
comments were reasonably likely to elicit an incrimi-
nating response from defendant and (2) how defendant
perceived the comments, regardless of Stiles’s intent.
See Innis, 446 US at 301; see, also, Stewart v United
States, 668 A2d 857, 866 (DC, 1995) (explaining that
applying Innis requires a court to “look[] at the facts
from the point of view of what the police should have
known would be the impact of the statements and, most
importantly, how the suspect perceived them”).
The defendant in Innis was suspected of a murder
committed with a gun, which had not been recovered.
The defendant, who was under arrest and had been
given Miranda warnings, was riding in a police car with
three officers when one officer commented to another
officer that there were many handicapped children in
the area where the defendant was arrested. The officer
further commented that he hoped that none of the
children found the gun and hurt themselves. The sec-
ond officer expressed his agreement. The defendant
overheard the officers’ conversation and told the offic-
ers to turn the car around so that he could lead them to
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the gun. The Court concluded that the officers’ conver-
sation did not amount to the functional equivalent of
interrogation, explaining that the officers’ comments
occurred in the context of a “brief conversation” that
“consisted of no more than a few offhand remarks.”
Innis, 446 US at 303. The Innis Court also noted that
the officers’ comments did not constitute a “lengthy
harangue in the presence of the suspect,” nor were the
comments “particularly ‘evocative.’ ” Id. Accordingly,
Innis held that the suspect “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.” Id.
In this case, the majority relies on its conclusion that
the content of Stiles’s comments was similar to the
content of the officers’ conversation in Innis to support
reversing the trial court’s suppression of defendant’s
incriminating statements. The majority emphasizes
that, in Innis and in this case, the officers expressed
concern regarding the whereabouts of a gun and the
potential danger that it posed to others, and it notes
that neither Innis nor this case presents a situation in
which the officers engaged in a “lengthy harangue.”
While the majority is correct that there are some
similarities between the officers’ statements in Innis
and Stiles’s comments in this case, those similarities
are not determinative. Rather, those similarities are
only some of the facts that must be considered in order
to determine how defendant perceived Stiles’s state-
ments and whether Stiles should have known that his
comments were reasonably likely to elicit an incrimi-
nating response. See United States v Allen, 247 F3d 741,
765 (CA 8, 2001) (“Determining whether particular
statements or practices amount to interrogation de-
pends on the circumstances of each case, particularly
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whether the statements are objectively and reasonably
likely to result in incriminating responses by the sus-
pect, as well as the nature of the police statements and
the context in which they are given.”), vacated on other
grounds 536 US 953 (2002). Thus, the mere fact that
the statements have some similar content is not deter-
minative: all the circumstances of each case must be
considered when applying the principles enunciated in
Innis.
The majority’s singular focus on the similarities in
the content of the statements in Innis and this case fails
to give proper consideration to the context in which the
statements were made. And, in failing to consider the
import of the context in which Stiles made the state-
ments at issue, the majority all but ignores the primary
considerations of the Innis case: the suspect’s percep-
tion of the officer’s statements and whether the officer
should have known that his comments were reasonably
likely to elicit an incriminating response. Specifically, it
is critical to recognize that, unlike the comments in
Innis, Stiles’s comments were made in a police interro-
gation room and were expressly directed to defendant,
who was the only other person present when the
statements were made. See Allen, 247 F3d at 765
(emphasizing the context in which the statements are
made). This factor is significant in determining whether
Stiles should have reasonably expected that defendant
would make an incriminating response. Indeed, in In re
EG, 482 A2d 1243, 1245 (DC, 1984), the court consid-
ered a situation in which an officer who was investigat-
ing an armed robbery arrested the defendant and, when
no other officers were present, stated, “I wonder where
the gun and money is.” In re EG compared the officer’s
statements to the officers’ statements in Innis and
concluded “without reservation that [the officer] should
have known that his statement was reasonably likely to
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elicit an incriminating response....”Id. at 1248. In re
EG differentiated the officer’s statements from the
Innis officers’ statements by noting that “no other
person was present” and that “there was no under-
standable explanation for [the officer’s] rhetorical ques-
tion other than to elicit a response from [the suspect].”
Id. In re EG reached this conclusion despite the officer’s
testimony that he did not expect a response to his
statement, explaining that “the definition of interroga-
tion ‘focuses primarily upon the perceptions of the
suspect, rather than the intent of the police.’ ” Id. at
1248 n 6, quoting Innis, 446 US at 301. Accordingly,
regardless of whether Stiles subjectively expected de-
fendant to respond to his comments, defendant could
have reasonably perceived that, given the content and
context of the comments, Stiles was seeking a response.
Similarly, two of the dissenting justices in Innis, who
were “substantially in agreement with the Court’s
definition of ‘interrogation,’ ” Innis, 446 US at 305
(Marshall, J., dissenting), concluded that the Innis
officers’ remarks “would obviously have constituted
interrogation if they had been explicitly directed to
respondent,” id. at 306.
1
This is true because the
difference between overhearing a conversation and be-
ing the intended recipient of a comment is significant.
Specifically, one who overhears a conversation in which
he or she is not involved is unlikely to perceive that
conversation as seeking his or her input. Conversely,
1
I disagree with the majority that Justice Marshall’s Innis dissent is
irrelevant. See ante at 206 n 9. Because Justice Marshall’s dissent
substantially agreed with the majority’s definition of “interrogation,”
Innis, 446 US at 305 (Marshall, J., dissenting), both opinions applied the
same legal framework and simply reached differing conclusions regard-
ing the specific facts at hand. Thus, I believe that Justice Marshall’s
opinion, while not binding, is relevant and worthy of some consideration
as this Court weighs the totality of the circumstances in this case.
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when a comment is expressly directed at someone, the
person to whom the comment is directed is reasonably
likely to perceive that comment as seeking a response.
Conversation does not, however, necessarily require
that each participant in the conversation pose an ex-
plicit question in order for a response to be reasonably
expected.
Rather than considering how the context affected
defendant’s perception of Stiles’s statements and
whether Stiles should have known that his comments
were reasonably likely to elicit an incriminating re-
sponse, the majority prefers to speculate regarding
Stiles’s subjective intent in making the statements and
concludes that the statements merely reflected a “con-
cern about the danger posed by the missing gun.” Ante
at 205 n 8. See, also, ante at 201 n 4 (speculating that
Stiles intended for his comments to spur defendant to
inform defendant’s family of the gun’s whereabouts).
2
The majority’s analysis, however, fails to give proper
weight to the primary principles of law established in
Innis: “the Miranda safeguards were designed to vest a
suspect in custody with an added measure of protection
against coercive police practices, without regard to
objective proof of the underlying intent of the police.”
Innis, 446 US at 301 (emphasis added).
3
2
Notably, the record is devoid of any support for the majority’s
speculation regarding Stiles’s subjective intent in making the statements
at issue.
3
Although Innis recognized that the officer’s intent “may well have a
bearing” on the analysis, it also explained that the officer’s intent is most
relevant “where a police practice is designed to elicit an incriminating
response from the accused [because] it is unlikely that the practice will
not also be one which the police should have known was reasonably likely
to have that effect.” Innis, 446 US at 301 n 7 (emphasis added). Thus, the
majority’s speculative conclusion that Stiles did not intend to elicit an
incriminating response is of little relevance because Stiles nevertheless
should have known that his statement was reasonably likely to elicit an
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Likewise, the majority engages in a monumental
effort to minimize the coercive atmosphere that defen-
dant faced. For example, in attempting to distinguish
this case from In re EG, the majority speculates that
Stiles made the statements at issue out of “a genuine
and legitimate concern about the danger posed by the
missing gun,” whereas the officer in In re EG had no
similar motive for his statements. Ante at 205 n 8.
However, the officer in In re EG was in the process of
arresting a person who was suspected of using a gun to
commit a crime with a partner. Because the officer in In
re EG did not immediately find a gun, it was possible
that the defendant’s partner had the gun and the
officer’s personal safety was in immediate danger. Thus,
the officer arguably had an even more pressing and
objectively verifiable “concern about the danger posed
by the missing gun” than did Stiles. Nevertheless, In re
EG held that the officer’s statements amounted to
interrogation under Innis. Accordingly, I find unpersua-
sive the majority’s attempt to distinguish In re EG on
this basis.
4
More importantly, however, the majority’s parsing of
the factual circumstances to distinguish In re EG from
this case is irrelevant because the court in that case did
not rely on any of the circumstances noted by the
majority here in support of its conclusion that the
officer’s statements amounted to the functional equiva-
incriminating response. See In re EG, 482 A2d at 1248 n 6 (concluding
that the officer’s statement amounted to interrogation even though the
officer testified that he did not expect a response to his statement).
4
The majority’s conclusion that Stiles made the statements at issue
“during a completely civil conversation with defendant,” ante at 206 n 8,
is equally unpersuasive because that conclusion fails to recognize the
reality of defendant’s circumstances. I believe that it is far more realistic
and reasonable to conclude that most people would not perceive a
one-on-one “discussion” with a homicide detective in a windowless police
interrogation room to be a completely civil conversation.
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lent of interrogation. What is relevant is that the court
in In re EG stated that the situation was “[u]nlike the
situation in Innis” because “no other person was
present” when the officer made the comments. In re
EG, 482 A2d at 1248. In re EG concluded on the basis of
that fact that the officer’s comments were “precisely
[the] type of tactic...[that] is prohibited by Miranda”
and, thus, the functional equivalent of interrogation
under Innis. Id.
In re EG’s application of Innis is correct because,
despite the majority’s unwillingness to consider it, the
primary focus of an Innis analysis must be “upon the
perceptions of the suspect, rather than the intent of the
police.” Innis, 446 US at 301 (emphasis added). Thus,
no matter how noble the officer’s intent, if the officer
should have known that it was reasonably likely that
the suspect would perceive the statements as seeking a
response that requires the suspect to divulge incrimi-
nating information, the officer’s statements are the
functional equivalent of interrogation.
Similarly, the majority concludes that Stiles’s com-
ments were, at most, “subtle compulsion” because the
comments were less “evocative” than the officers’ com-
ments in Innis. In support of this conclusion, the
majority relies on the fact that Stiles made no mention
of handicapped children or God. Again, this view of
Stiles’s statements ignores the context in which they
were made; specifically, that the comments were un-
questionably directed to defendant. As previously ex-
plained, depending on the context, a statement clearly
directed to a specific person is reasonably likely to elicit
a response from that person. Thus, while the content of
Stiles’s statement may not have been particularly
“evocative,” Stiles should have known that, given the
context in which the statement was made, it was rea-
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sonably likely that defendant would perceive the state-
ment as seeking to evoke a response.
Additionally, Stiles did not simply express his desire
that no one else be harmed by the gun and then leave
the room. Rather, Stiles pressed defendant by adding
“okay” and, after a pause, further adding “all right.”
Although it is conceivable that these words did not
amount to express questions for the reasons previously
discussed, defendant could reasonably have perceived
the words, along with the pause between them, as
seeking a response on his part. The majority apparently
rejects this possibility and instead assumes that Stiles
was merely ensuring that defendant heard and under-
stood his comments regarding the danger that the gun
posed. See ante at 201-202. The majority fails to con-
sider the next logical step in its analysis, however.
Specifically, if Stiles was ensuring that defendant heard
his statement, one must ask why Stiles made that
effort. The most likely answer is that Stiles hoped that
defendant would respond by divulging the gun’s loca-
tion. Thus, even if Stiles’s motivation was purely altru-
istic as the majority speculates, he should have never-
theless known that his statement was reasonably likely
to elicit an incriminating response from defendant.
Accordingly, the statement satisfies the definition of the
functional equivalent of interrogation from Innis be-
cause a suspect’s constitutionally protected rights can-
not be cast aside simply because the questioning offic-
er’s subjective intent may have been laudable.
The nature of Stiles’s comments is also relevant to
determining how defendant perceived the comments
and whether Stiles should have known that his com-
ments were reasonably likely to elicit an incriminating
response from defendant. For example, Arizona v
Mauro, 481 US 520, 529; 107 S Ct 1931; 95 L Ed 2d 458
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(1987), noted that Miranda and Innis held that subject-
ing a suspect to “compelling influences” or “psychologi-
cal ploys” were techniques of persuasion that amount to
interrogation when used in a custodial setting. Mauro
also emphasized that
[i]n deciding whether particular police conduct is interro-
gation, we must remember the purpose behind our deci-
sions in Miranda and Edwards [v Arizona, 451 US 477; 101
S Ct 1880; 68 L Ed 2d 378 (1981)]: preventing government
officials from using the coercive nature of confinement to
extract confessions that would not be given in an unre-
strained environment. [Id. at 529-530.]
Mauro’s analysis was based on Innis, which stated
that “Miranda also included in its survey of interroga-
tion practices the use of psychological ploys, such as to
‘posi[t]’ ‘the guilt of the subject,’ to ‘minimize the moral
seriousness of the offense,’ and ‘to cast blame on the
victim or on society.’ ” Innis, 446 US at 299, quoting
Miranda, 384 US at 450 (emphasis added) (alteration in
original). Also, the Mauro Court explained that Innis
reviewed the police practices that had evoked the Miranda
Court’s concern about the coerciveness of the interrogation
environment. The questioned practices included...a va-
riety of psychological ploys ....None of these techniques
involves express questioning, and yet the Court found that
any of them, coupled with the interrogation environment,
was likely to subjugate the individual to the will of his
examiner and thereby undermine the privilege against
compulsory self-incrimination. [Mauro, 481 US at 526
(quotation marks and citations omitted; emphasis added).]
Thus, the majority is incorrect that “Mauro simply
noted that the defendant in that case had not been
subjected to ‘psychological ploys.’ ” Ante at 204 n 7.
Rather, Mauro held that the defendant had not been
interrogated precisely because the defendant was not
subjected to psychological ploys. See Mauro, 481 US at
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529 (stating that the defendant was not subjected to
psychological ploys and concluding, “[t]hus, [the defen-
dant’s] volunteered statements cannot properly be con-
sidered the result of police interrogation”). Indeed,
other jurisdictions have interpreted Miranda, Innis,
and Mauro as holding that psychological ploys may
constitute interrogation, depending on the circum-
stances of the case. See, e.g., Commonwealth v Larkin,
429 Mass 426, 431 n 4; 708 NE2d 674 (1999) (noting
that the functional equivalent of express questioning
has been construed as “including ‘psychological ploys’
likely to elicit [an incriminating] response”), citing
Mauro, 481 US at 526.
5
In this case, Stiles’s statements, which were ex-
pressly directed to defendant, played to the likelihood
that defendant would respond to an expression of
concern for the safety of others. Thus, the nature of
Stiles’s statements had the characteristics of a psycho-
logical ploy that exerted a compelling influence on
defendant because the comments implied that defen-
dant was the only person who knew where the gun was
located and, thus, implied that defendant had a respon-
5
See, also, State v Northern, 262 SW3d 741, 753 (Tenn, 2008) (“[I]n a
custodial setting, certain psychological ploys...are‘techniques of per-
suasion, no less than express questioning’ which ‘amount to interroga-
tion.’ ”), quoting Innis, 446 US at 299, and citing Miranda, 384 US at
450; Edmonds v State, 955 So 2d 787, 807 (Miss, 2007) (Diaz, P.J.,
concurring) (concluding that the police conduct at issue was “ ‘precisely
the kind of psychological ploy that Innis’s definition of interrogation was
designed to prohibit’ ”), quoting Nelson v Fulcomer, 911 F2d 928, 935
(CA 3, 1990) (citations omitted); People v Rivas, 13 P3d 315, 319 (Colo,
2000) (“Practices identified as the functional equivalents of interrogation
generally employ compelling influences or psychological ploys in tandem
with police custody to obtain confessions.”); and State v Lockhart, 298
Conn 537, 590; 4 A3d 1176 (2010) (Palmer, J., concurring) (“[I]nterroga-
tion methods used by the police...often include sophisticated psycho-
logical ploys and techniques....”), citing Garrett, The substance of false
confessions, 62 Stan L Rev 1051, 1060 (2010).
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sibility to make that information known so that others
would not be harmed.
6
The only way that defendant
could make that information known, however, was to
give an incriminating statement in response to Stiles’s
statements. Thus, Stiles’s statements used what
Miranda identified as one of the hallmarks of interro-
gation: “[t]he aura of confidence in [defendant’s] guilt
[that] undermines [defendant’s] will to resist.”
Miranda, 384 US at 455. Indeed, because the comments
were expressly directed to defendant, Stiles placed
defendant in a situation in which defendant “merely
confirm[ed] the preconceived story the police [sought]
to have him describe,” i.e., that defendant knew the
location of the gun because he had used the gun to
commit the murder.
7
Id. Accordingly, Stiles should have
6
The majority argues that my interpretation of this psychological ploy
is too attenuated to rise to the level of interrogation under Innis, see ante
at 202-203; however, all psychological forms of interrogation rely on a
human trait that is common to most people but not necessarily exhibited
by all people. For example, Miranda, 384 US at 450, concluded that police
tactics that “minimize the moral seriousness of the offense” or “cast
blame on the victim or on society” are psychological ploys that may
constitute interrogation practices depending on the circumstances.
Surely, not all suspects would respond to such tactics, but the tactics
nevertheless may constitute interrogation because they play to traits that
are common to many, but not all, people. In my view, because concern for
the safety of others is also a common human trait, the same is true of
Stiles’s comment. And when the compelling influence of Stiles’s state-
ment is combined with the custodial setting and other factors discussed
throughout this opinion, I believe that defendant was subjected to the
functional equivalent of questioning because the totality of the custodial
circumstances caused defendant to make an incriminating statement
“that would not [have been] given in an unrestrained environment.”
Mauro, 481 US at 530.
7
This aspect of Stiles’s statements illustrates another significant
difference between this case and Innis. Because the officers in Innis were
merely conversing amongst themselves regarding their concern about the
whereabouts of the gun, the Innis defendant was not placed in a situation
in which he merely needed to confirm the officers’ preconceived belief
that he was guilty. Rather, as the Innis Court held, the officers’ comments
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known that his comments were reasonably likely to
elicit an incriminating response because it was reason-
ably likely that defendant would perceive the comments
as compelling a response in order to protect others,
particularly because Stiles expressly directed his state-
ments to defendant.
8
Finally, other courts have recog-
nized that a defendant’s personal characteristics or
relationship with the questioning officer might influ-
ence how that defendant perceives a police officer’s
statements. For example, in Stewart, 668 A2d at 866,
the defendant invoked his right to remain silent and,
several hours later, a detective who had attended the
same church as the defendant for many years took the
did not compel any response from the defendant. Conversely, in this case,
not only could Stiles’s statement have been reasonably perceived by
defendant as seeking a response given that the statement was expressly
directed to him, the statement could also have exerted a compelling
influence on defendant to merely confirm Stiles’s preconceived conclu-
sion that defendant had committed the crime.
8
Contrary to the majority’s interpretation of my opinion, this portion
of my analysis does not conclude that defendant exhibited an “unusual”
or “peculiar” susceptibility to a certain form of persuasion. As previously
explained, like many psychological interrogation techniques that rely on
a human trait that is common to most people, Stiles’s comments appealed
to a common characteristic: concern for others. Rather than consider this
possibility as part of a complete consideration of totality of the circum-
stances, the majority prefers to employ broad stereotypes, such as its
belief that all suspects charged with homicide are cold-blooded killers.
The majority’s approach is erroneous because, if this were true, Stiles
would not have bothered to make the statement at issue. Indeed, if Stiles
had no reason to “fathom[]” that defendant harbored any concern for the
safety of others given that “defendant had just been arrested for shooting
another man to death for drugs,” ante at 202-203, why would Stiles
bother to make the statement? The majority fails to consider that, as
defendant’s incriminating statement suggests, he made an extremely
poor decision to perpetrate a robbery, but the shooting was not the
intended result. A poor decision that led to a deadly, but unintended,
result does not automatically sap defendant of his humanity. Thus, the
majority’s analysis fails to consider the important factual intricacies of
this case.
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defendant to a jail cell. The detective told the defendant
not to feel bad about the situation and that the other
members of the church would not judge him and would
be a support group for him. Several hours after the
detective made the religion-themed statements to the
defendant, the detective again visited the defendant
and the defendant confessed. Stewart held that the
religion-themed statements amounted to unlawful in-
terrogation and rejected the prosecution’s argument
that the detective’s statements were spontaneous, ca-
sual, and purely of a personal nature. Id. The Stewart
court explained that the detective was “an experienced
homicide detective...capable of exploiting an opportu-
nity.” Id. Accordingly, “[n]o conversation concerning a
criminal investigation between such a detective and a
suspect can be said to be ‘purely personal.’ ” Id. Rather,
the Stewart court determined that the “conversation
can only be characterized as the first preparatory step
of someone experienced in conducting interrogations.”
Id. Similarly, In re EG, 482 A2d at 1248 n 6, noted the
defendant’s youthfulness as one of the circumstances
supporting the conclusion that the officer should have
known that his statements were reasonably likely to
elicit a response, and United States v Rivera-Ruiz,
unpublished opinion of the United States District Court
for the District of Minnesota, issued May 14, 2002
(Docket No. CR 02-57 ADMRLE), held that “[t]he
[d]efendant’s foreign status and likely unfamiliarity
with U.S. constitutional rights” were relevant to deter-
mining how the defendant perceived the officer’s state-
ments.
In this case, defendant was 17 years old when he was
arrested, and he had no prior criminal convictions.
Although any person in police custody might view the
questioning officer as an authority figure and thus feel
compelled to respond to the officer’s statements, defen-
228 493 M
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dant’s youth and inexperience with the criminal justice
system are relevant factors in determining how defen-
dant perceived Stiles’s comments. Because these fac-
tors, combined with the fact that Stiles’s comments
implied that defendant had a responsibility to protect
others, increased the likelihood that defendant would
feel compelled to respect and comply with Stiles as an
authority figure, I would conclude that Stiles should
have known that his comments were reasonably likely
to elicit an incriminating response.
In summary, despite the similarities between the
content of Stiles’s comments in this case and the Innis
officers’ statements, I believe that several important
factors distinguish this case from Innis. First, Stiles
expressly directed his statements to defendant; thus, it
was more likely that defendant would perceive the
statements as seeking a response. Likewise, Stiles
should have known that by expressly directing the
comments to defendant, it was reasonably likely that
defendant would respond. Second, Stiles’s statements
had the characteristics of a “psychological ploy” that
exerted a “compelling influence” on defendant because
the statements played to the likelihood that defendant
would feel compelled to protect others. Third, several of
defendant’s individual personal characteristics in-
creased the likelihood that he would perceive Stiles’s
comments as requiring a response.
Accordingly, from the totality of the circumstances, I
would conclude that it was not “unforeseeable” that
Stiles’s comments would result in an incriminating re-
sponse from defendant. Innis, 446 US at 302. Rather,
defendant could have reasonably perceived that Stiles
expected a response, and Stiles should have known that
his comments were “reasonably likely to elicit an incrimi-
nating response from [defendant].” Id. at 301. As a result,
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I believe that defendant was improperly subjected to the
functional equivalent of interrogation after invoking his
Fifth Amendment right against compelled self-
incrimination. Accordingly, I would reverse the judgment
of the Court of Appeals and reinstate the trial court’s
order suppressing defendant’s incriminating statements.
M
ARY
B
ETH
K
ELLY
,J.(dissenting). I respectfully dis-
sent. I believe that Detective Brett Stiles engaged in the
“functional equivalent” of express questioning by ex-
ploiting defendant’s youth, a characteristic that made
him particularly susceptible to Stiles’s compulsive tech-
niques. Because this constituted “interrogation” and
defendant had invoked his right to remain silent, I
would reverse the judgment of the Court of Appeals and
suppress defendant’s statement.
It is a violation of the principles announced in
Miranda v Arizona to interrogate a suspect after he or
she invokes the right to remain silent.
1
An “interroga-
tion” occurs when an individual in custody is subjected
to either “express questioning” or its “functional
equivalent.”
2
As either express questioning or its func-
tional equivalent, “interrogation” requires “a measure
of compulsion above and beyond that inherent in cus-
tody itself,” and it generally must consist of more than
mere “subtle compulsion.”
3
Rhode Island v Innis ex-
plained that the “functional equivalent” prong of inter-
rogation involves “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
1
Miranda v Arizona, 384 US 436, 473-474; 86 S Ct 1602; 16 L Ed 2d
694 (1966).
2
Rhode Island v Innis, 446 US 291, 300-301; 100 S Ct 1682; 64 L Ed 2d
297 (1980).
3
Id. at 300, 303 (quotation marks and citation omitted).
230 493 M
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reasonably likely to elicit an incriminating response
from the suspect.”
4
In determining whether police
words or actions amount to the functional equivalent of
express questioning, we focus on the perceptions of the
suspect, rather than the intent of the police.
5
However,
any knowledge that the police may have concerning a
defendant’s unusual susceptibility to a particular form
of persuasion may be an important factor in determin-
ing whether the police should have known their conduct
would elicit an incriminating response.
6
In circumstances such as those presented here, a
defendant’s youth might make him or her particularly
vulnerable to police interrogation tactics and constitute
the type of unusual susceptibility contemplated in In-
nis. The United States Supreme Court has spoken
extensively about the unique characteristics of minors,
recognizing that they are generally wanting in matu-
rity, more susceptible to outside influences, and “ ‘often
lack[ing] the experience, perspective, and judgment to
recognize and avoid choices that could be detrimental to
them....’”
7
These characteristics describe minors
generally as a class and are readily apparent, indeed
“self-evident,” to all adult observers.
8
Moreover, these
commonsense observations about the nature of adoles-
4
Id. at 301 (emphasis added).
5
Id. The intent of the police is relevant only insofar as it bears “on
whether the police should have known that their words or actions were
reasonably likely to evoke an incriminating response.” Id. at 301 n 7.
6
Id. at 302 n 8.
7
JDB v North Carolina, 564 US___, ___; 131 S Ct 2394, 2403; 180 L Ed
2d 310 (2011), quoting Bellotti v Baird, 443 US 622, 635; 99 S Ct 3035; 61
L Ed 2d 797 (1979); see also Eddings v Oklahoma, 455 US 104, 115; 102
S Ct 869; 71 L Ed 2d 1 (1982) (recognizing youth as a “time and condition
of life when a person may be most susceptible to influence and to
psychological damage”).
8
JDB, 564 US at ___; 131 S Ct at 2403; see also Roper v Simmons, 543
US 551, 569; 125 S Ct 1183; 161 L Ed 2d 1 (2005).
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cents have been corroborated by developments in psy-
chology and brain science.
9
Given the unique character-
istics of minors, they have long been afforded a special
regard in the law, subjected to unique standards in
areas such as contract enforcement, the ability to
marry, and even the ability to vote and to serve on
juries.
10
In the custodial-interrogation context, the unique
attributes of minors require courts to exercise “special
care” in their scrutiny of the record.
11
Courts should be
mindful that, as compared to an adult, a juvenile
suspect faces a more acute risk of succumbing to the
inherent pressures of custodial interrogation such that
the juvenile might “ ‘speak where he would not other-
wise do so freely.’ ”
12
A suspect’s age may shape the
suspect’s reasonable perception of whether he or she is
in police “custody”
13
and affect the suspect’s response to
police questioning and conduct.
14
Because juveniles often lack the wherewithal to resist
police pressures, they thus become uniquely susceptible
9
Graham v Florida, 560 US ___, ___; 130 S Ct 2011, 2026; 176 L Ed 2d
825 (2010) (“[D]evelopments in psychology and brain science continue to
show fundamental differences between juvenile and adult minds.”).
10
JDB, 564 US at ___; 131 S Ct at 2403-2404; Roper, 543 US at 569.
11
Haley v Ohio, 332 US 596, 599; 68 S Ct 302; 92 L Ed 224 (1948); see
also Gallegos v Colorado, 370 US 49, 54; 82 S Ct 1209;8LEd2d325
(1962) (recognizing that a teenager, “no matter how sophisticated,” may
not be “compared with an adult in full possession of his senses and
knowledgeable of the consequences of his admissions”).
12
JDB, 564 US at ___; 131 S Ct at 2401, quoting Miranda, 384 US at
467.
13
See JDB, 564 US at ___; 131 S Ct at 2403 (“[A] reasonable child
subjected to police questioning will sometimes feel pressured to submit
when a reasonable adult would feel free to go.”).
14
Haley, 332 US at 599 (concluding police conduct “which would leave
a man cold and unimpressed can overawe and overwhelm a lad in his
early teens”).
232 493 M
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to police interrogative efforts, including subtly compul-
sive techniques, and should reasonably be expected to
respond to those efforts. Police officers interacting with
a minor suspect must be charged with knowledge of the
particular vulnerabilities of minors because youthful
characteristics are “self-evident to anyone who was a
child once himself, including any police officer or
judge.”
15
To allow the police to exploit the susceptibili-
ties of minors who have invoked the right to remain
silent, i.e., to allow the interrogation of a suspect after
he or she invokes his right to remain silent, would run
afoul of both Innis and Miranda.
16
As such, when a
custodial interrogation involved a minor suspect who
asserted his or her right to remain silent, courts con-
sidering whether the minor was subjected to the func-
tional equivalent of interrogation must be especially
mindful of the unique susceptibility that results from
youth and the role that the defendant’s age played in
the defendant’s perception of the circumstances.
In this case, Stiles should have recognized that
defendant’s age made him especially susceptible to
subtle compulsive efforts and that such conduct would
likely elicit an incriminating response. Given defen-
dant’s age of 17 years
17
and lack of any criminal record,
15
JDB, 564 US at ___; 131 S Ct at 2403.
16
Innis, 446 US at 300-302; Miranda, 384 US at 473-474 (“If the
individual indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must
cease.”).
17
The majority emphasizes that JDB, 564 US at ___; 131 S Ct at 2399,
involved a 13-year-old defendant, suggesting that the unique attributes
of adolescents recognized by the United States Supreme Court do not
apply to 17-year-old minors. Contrary to the majority’s suggestion, the
Supreme Court also discussed many of the distinguishing characteristics
of adolescents in Roper, 543 US at 556, a case involving a defendant who
committed murder when he was 17-years-old. Given the continued
vulnerability of older teenagers, it can reasonably be supposed that the
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it would have been readily apparent that defendant
lacked the experience and perspective to make decisions
in his best interests or to avoid succumbing to police
pressure. Rather than “scrupulously honor[]” defen-
dant’s unequivocal invocation of his right to remain
silent,
18
Stiles subjected the minor suspect to continued
police pressure, which included references to violence,
attempts to earn defendant’s trust, and appeals to
defendant’s conscience:
[Stiles]: Okay. [T]his is what they call the acknowledg-
ment and waiver paragraph [and] 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?
[Defendant]: No. No thank you sir. I’m not going to sign
it.
[Stiles]: Okay. Okay. Sounds good.
[Defendant]: I don’t even want to speak.
[Stiles]: I understand. I understand Kadeem.
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 of it and
nobody else can get hurt by it, okay?
All right?
protections afforded minors as a result of their unique characteristics
apply to 17-year-olds such as defendant.
18
Miranda, 384 US at 479.
234 493 M
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[Defendant]: I didn’t even mean for it to happen like
that. It was a complete accident.
[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.
[Defendant]: Yeah.
[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.
[Defendant]: ([U]nintelligible reply).
I know that I didn’t mean to do it. I guarantee that, I
know I didn’t mean to do it.
[
19
]
Considering the entirety of the exchange, several com-
ments appear designed to foster an atmosphere in
which defendant would be reasonably likely to make an
incriminating response.
20
Particularly, Stiles initially
19
The interrogation was recorded on a DVD. Defendant included a
transcript of the interrogation in his motion to suppress his statements.
Given that the prosecution “[a]greed to the transcript” in its response to
the motion, I quote defendant’s transcription here, including his use of
punctuation.
20
In analyzing the exchange, the majority focuses exclusively on the
significance of the Innis-like reference to the gun’s location and Stiles’s
related expression of concern for the safety of others, ignoring the larger
context in which this statement occurred. Believing that the only
relevant portion of the exchange involves Stiles’s reference to the gun’s
location, the majority disputes whether a 17-year-old is more susceptible
to an appeal to his or her conscience. But the colloquy must be regarded
in its entirety. In its entirety, the appeal to defendant’s conscience was
coupled with references to violence and attempts to earn defendant’s
trust through expressions of understanding and references to defen-
dant’s family. It was to that entire exchange that the youthful defendant
2013] P
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,J.
attempted to put defendant at ease, to portray himself
as a neutral party rather than an adversary in an
interrogation. He wished defendant “good luck” and
told him: “Don’t take this personal. It’s not personal
between me and you....”Healso assured defendant
that “I understand you’ve got to [do] what you’ve got to
do to protect your best interests.” Having presented
himself as reasonable and understanding, Stiles invited
defendant to make an incriminating response, telling
defendant, “I hope that the gun is in a place where
nobody can get a hold of it and nobody else can get hurt
by it, okay?” Examining the remarks from the view-
point of a teenager facing an authority figure in an
interrogation room, I believe it reasonably foreseeable
that the type of subtle coercive techniques Stiles used
would prompt defendant to provide an incriminating
response. As would be expected, defendant incrimi-
nated himself by stating, “I didn’t even mean for it to
happen like that. It was a complete accident.”
Even after defendant demonstrated his youthful vul-
nerability to subtle compulsion, Stiles continued the
interview, again presenting himself as a reasonable
individual in whom defendant could confide, telling
defendant, “I understand. I understand,” and assuring
defendant that he did not view him as “a monster.” The
detective then interjected a reference to violence into
the conversation, telling defendant: “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.” Such references to violence in the isolation of an
interrogation room would reasonably increase the anxi-
ety experienced by a youthful suspect. At the same time,
succumbed, not merely the isolated appeal to his conscience through the
single question with regard to the location of the gun.
236 493 M
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Stiles also sought to establish ties with defendant,
professing a familiarity with defendant’s family mem-
bers in town and asking defendant: “Who knows you’re
here? Who knows of your family? Because I know a lot
of your family in town now.” Not surprisingly, the
overwhelmed adolescent again responded with an in-
criminating statement, telling Stiles: “I know that I
didn’t mean to do it. I guarantee that, I know I didn’t
mean to do it.”
When examined in their entirety, Stiles’s remarks
included a number of police tactics to which a vulner-
able youth would be readily susceptible. The colloquy
involved efforts to establish a rapport with defendant,
including references to his family, while in the same
conversation, Stiles also managed to heighten the in-
herent stress of a custodial situation by referring to
violence. It was in this context that Stiles made the
most obvious overture to elicit an incriminating re-
sponse from defendant: the remark about the gun’s
location. While Stiles’s remarks might not be reason-
ably likely to elicit an incriminating response from an
adult, all these comments considered together, and in
context, made it reasonably likely that the minor defen-
dant in this case would respond in an incriminating
manner. Consequently, because defendant’s youthful
susceptibility to compulsion would have been readily
apparent and Stiles should have known that his re-
marks were reasonably likely to elicit an incriminating
response, I would hold that defendant was subjected to
interrogation after he invoked his right to remain silent
and I would suppress his statement.
M
C
C
ORMACK
, J., took no part in the decision of this
case.
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,J.
PRICE v HIGH POINTE OIL COMPANY, INC
Docket No. 143831. Argued November 15, 2012 (Calendar No. 1). Decided
March 21, 2013.
Beckie Price brought an action in the Clinton Circuit Court against
High Pointe Oil Company, Inc., claiming, among other things, non-
economic damages for the mental anguish, emotional distress, and
psychological injuries that she sustained when High Pointe negli-
gently pumped 400 gallons of fuel oil into the basement of her house.
The incident created an environmental hazard that required the
razing of the house. Before the jury trial, High Pointe moved for
summary disposition, in part on the issue of noneconomic damages,
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 noneco-
nomic damages could be recovered in a negligence action. The jury
awarded Price $100,000 for noneconomic damages, after which High
Pointe moved for judgment notwithstanding the verdict and remitti-
tur. The court denied the motion and High Pointe appealed. The
Court of Appeals, B
ECKERING
,P.J., and F
ORT
H
OOD
and S
TEPHENS
,JJ.,
affirmed, concluding that a plaintiff may recover mental anguish
damages naturally flowing from damage to or the destruction of real
property. 294 Mich App 42 (2011). The Supreme Court granted High
Pointe’s application for leave to appeal. 491 Mich 870 (2012).
In an opinion by Justice M
ARKMAN
, joined by Chief Justice
Y
OUNG
and Justices M
ARY
B
ETH
K
ELLY
and Z
AHRA
, the Supreme
Court held:
Michigan common law has long provided that the appropriate
measure of damages in cases involving the negligent destruction of
property is the cost of replacement or repair of the property.
Because that rule is sound, any change in the rule must come by
legislative alteration.
1. The common-law rule with respect to damages recoverable
in an action alleging the negligent destruction of property is that
if the injury is permanent or irreparable, the measure of damages
is the difference in the property’s market value before and after
the injury, but if the injury is reparable and the expense of making
238 493 M
ICH
238 [Mar
repairs is less than the value of the property, the measure of
damages is the cost of making repairs. Because replacement and
repair costs reflect economic damages, the logical implication of
this rule is that the measure of damages excludes noneconomic
damages. No previous case in the history of Michigan’s common
law has approvingly discussed the recovery of noneconomic dam-
ages for the negligent destruction of property. Further, recent
Court of Appeals precedent has disallowed recovery of damages for
emotional injuries suffered as a consequence of personal property
damage. There was no legally relevant basis that would logically
justify prohibiting the recovery of noneconomic damages for the
negligent destruction of personal property but allow it for the
negligent destruction of real property.
2. A common-law rule remains the law until modified by the
Michigan Supreme Court or the Legislature. Alteration of the
common law by the Court should be approached cautiously with
the fullest consideration of public policy and should not occur
through sudden departure from longstanding legal rules. While
the destruction of property or property damage will often engen-
der considerable mental distress, the present rule denying recov-
ery for that distress is rational and justifiable as a matter of
reasonable public policy. Given the lack of any compelling argu-
ment for altering the common law, retention of the rule was
appropriate.
Judgment of the Court of Appeals reversed and case remanded
to the trial court for entry of summary disposition in High Pointe’s
favor.
Justice C
AVANAGH
took no part in the decision of this case
because of a familial relationship with counsel of record.
Justices M
C
C
ORMACK
and V
IVIANO
took no part in the decision of
this case.
D
AMAGES —
N
ONECONOMIC
D
AMAGES —
N
EGLIGENCE —
D
ESTRUCTION OF OR
D
AMAGE TO
P
ROPERTY
.
The common-law rule in cases involving the negligent destruction of
or damage to property is that the appropriate measure of damages
is the cost of replacement or repair of the property; noneconomic
damages are not recoverable for the negligent destruction of or
damage to property.
Sinas, Dramis, Brake, Boughton & McIntyre, P.C. (by
James F. Graves and Stephen H. Sinas), and Speaker
Law Firm, PLLC (by Steven A. Hicks), for Beckie Price.
2013] P
RICE V
H
IGH
P
OINTE
O
IL
239
Garan Lucow Miller, P.C. (by Megan K. Cavanagh),
for High Pointe Oil Company, Inc.
Amici Curiae:
Clark Hill PLC (by Cynthia M. Filipovich and Kristin
B. Bellar) for the Michigan Manufacturers Association.
McClelland & Anderson, LLP (by Gregory L. McClel-
land and Melissa A. Hagen), for the Michigan Associa-
tion of Realtors.
McClelland & Anderson, LLP (by Gregory L. McClel-
land and Melissa A. Hagen), for the Michigan Associa-
tion of Home Builders.
M
ARKMAN
, J. The issue in this case is whether non-
economic damages are recoverable for the negligent
destruction of real property. No Michigan case has ever
allowed a plaintiff to recover noneconomic damages
resulting solely from the negligent destruction of prop-
erty, either real or personal. Rather, the common law of
this state has long provided that the appropriate mea-
sure of damages in cases involving the negligent de-
struction of property is simply the cost of replacement
or repair of the property. We are not persuaded of the
need for change and therefore continue to adhere to this
rule. Accordingly, we reverse the judgment of the Court
of Appeals and remand this case to the trial court for
entry of summary disposition in defendant’s favor.
I. FACTS AND HISTORY
In 1975, plaintiff and her now ex-husband built a
house in DeWitt, Michigan. The house was originally
heated by an oil furnace located in the basement, but in
2006 plaintiff replaced the oil furnace with a propane
furnace. Plaintiff canceled her contract with defendant
240 493 M
ICH
238 [Mar
oil company’s predecessor when the propane furnace
was installed. Although the oil furnace was removed,
the oil fill pipe remained.
Somehow, in November 2007, plaintiff’s address was
placed on defendant’s “keep full list.” True to the name of
the list, while plaintiff was at work, defendant’s truck
driver pumped nearly 400 gallons of fuel oil into plaintiff’s
basement through the oil fill pipe before realizing his
mistake and immediately calling 911. Plaintiff’s house
and many of her belongings were destroyed. Between
defendant’s and plaintiff’s insurers, the site was remedi-
ated, a new house was built on the property in a different
location, plaintiff’s personal property was cleaned or re-
placed, and plaintiff was reimbursed for all temporary-
housing-related expenses. It is undisputed that plaintiff
was fully compensated for her economic losses.
Nevertheless, plaintiff filed suit in August 2008,
alleging claims for negligence, gross negligence, negli-
gent infliction of emotional distress, nuisance, trespass,
and a private claim under the Natural Resources and
Environmental Protection Act, MCL 324.101 et seq.
However, plaintiff’s only claim to survive to trial was for
the recovery of noneconomic damages for defendant’s
negligent destruction of her real property. After trial
and over defendant’s objection, a jury found in favor of
plaintiff in the amount of $100,000 for past noneco-
nomic damages. Defendant moved for judgment not-
withstanding the verdict and remittitur, arguing that
plaintiff had failed to present sufficient proofs to sup-
port the verdict. The trial court denied the motion, and
defendant appealed. The Court of Appeals affirmed in a
published decision, explaining:
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
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must or should be excepted from that general rule. We
conclude that in negligence actions, a plaintiff may recover
mental anguish damages naturally flowing from the damage
to or destruction of real property. [Price v High Pointe Oil Co,
Inc, 294 Mich App 42, 60; 817 NW2d 583 (2011).]
Defendant applied for leave to appeal in this Court. We
granted leave and subsequently heard oral argument.
Price v High Pointe Oil Co, Inc, 491 Mich 870 (2012).
II. STANDARD OF REVIEW
Whether noneconomic damages are recoverable for
the negligent destruction of real property presents a
question of law, which this Court reviews de novo. See
2000 Baum Family Trust v Babel, 488 Mich 136, 143;
793 NW2d 633 (2010).
III. ANALYSIS
The question in this case is whether noneconomic
damages are recoverable for the negligent destruction
of real property. Absent any relevant statute, the an-
swer to that question is a matter of common law.
A. COMMON LAW
As this Court explained in Bugbee v Fowle, the
common law “ ‘is but the accumulated expressions of
the various judicial tribunals in their efforts to ascer-
tain what is right and just between individuals in
respect to private disputes[.]’ ” Bugbee v Fowle, 277
Mich 485, 492; 269 NW 570 (1936), quoting Kansas v
Colorado, 206 US 46, 97; 27 S Ct 655; 51 L Ed 956
(1907). The common law, however, is not static. By its
nature, it adapts to changing circumstances. See
Holmes, The Common Law (Mineola, New York: Dover
Publications, Inc., 1991), p 1 (noting that the common
242 493 M
ICH
238 [Mar
law is affected by “[t]he felt necessities of the time, the
prevalent moral and political theories, [and] intuitions
of public policy” and that it “embodies the story of a
nation’s development through many centuries”). And
as this Court stated in Beech Grove Investment Co v
Civil Rights Comm:
It is generally agreed that two of the most significant
features of the common law are: (1) its capacity for growth
and (2) its capacity to reflect the public policy of a given
era....
***
“The common law does not consist of definite rules
which are absolute, fixed, and immutable like the statute
law, but it is a flexible body of principles which are designed
to meet, and are susceptible of adaption to, among other
things, new institutions, public policies, conditions, usages
and practices, and changes in mores, trade, commerce,
inventions, and increasing knowledge, as the progress of
society may require. So, changing conditions may give rise
to new rights under the law....”[Beech Grove Investment
Co v Civil Rights Comm, 380 Mich 405, 429-430; 157 NW2d
213 (1968), quoting 15A CJS, Common Law, § 2, pp 43-44.]
The common law is always a work in progress and
typically develops incrementally, i.e., gradually evolving as
individual disputes are decided and existing common-law
rules are considered and sometimes adapted to current
needs in light of changing times and circumstances. In re
Arbitration Between Allstate Ins Co & Stolarz, 81 NY2d
219, 226; 597 NYS2d 904; 613 NE2d 936 (1993) (noting
that the common law evolves through the “incremental
process of common-law adjudication as a response to the
facts presented”);
1
see also People v Aaron, 409 Mich 672,
1
See also Kestin, The bystander’s cause of action for emotional injury:
Reflections on the relational eligibility standard, 26 Seton Hall L R 512,
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727; 299 NW2d 304 (1980) (“Abrogation of the felony-
murder rule is not a drastic move in light of the
significant restrictions this Court has already im-
posed. Further, it is a logical extension of our deci-
sions....”); Woodman v Kera LLC, 486 Mich 228,
267-268; 785 NW2d 1 (2010) (M
ARKMAN
, J., concurring
in part and dissenting in part).
The common-law rule with respect to the damages
recoverable in an action alleging the negligent destruc-
tion of property was set forth in O’Donnell v Oliver Iron
Mining Co, 262 Mich 470; 247 NW 720 (1933).
O’Donnell provides:
“If injury to property caused by negligence is permanent
or irreparable, [the] measure of damages is [the] difference
in its market value before and after said injury, but if [the]
injury is reparable, and [the] expense of making repairs is
less than [the] value of [the] property, [the] measure of
damages is [the] cost of making repairs.” [Tillson v Con-
sumers Power Co, 269 Mich 53, 65; 256 NW 801 (1934),
quoting O’Donnell, 262 Mich at 471 (syllabus).]
[
2
]
512 (1996) (“Growth in the common law is incremental, often scarcely
noticeable in the short run, but inexorable when viewed in the long
term.”); Davis v Moore, 772 A2d 204, 238 (DC, 2001) (Ruiz, J., dissenting)
(“It cannot be forgotten that the incremental pace at which common law
develops, coupled with the increasing importance of statutory law,
ensures that cases where truly ‘new’ rules of common law are an-
nounced...will not frequently occur.”).
2
Tillson quoted O’Donnell’s syllabus. The portion of the opinion from
which the statement in the syllabus was derived provided:
As the case must go back for a new trial, on account of the
errors pointed out, we also call attention to another alleged error.
The court instructed the jury that, if it found that the injury to
plaintiff’s property was caused by defendant’s negligence, the
damages should represent the difference between the market
value of the house at the date of the injury and that value it would
have had if the property had remained undamaged. This is the
measure of recovery only where the injury is permanent. No
instruction was given as to what the measure of damages should be
in case the jury found the injuries were reparable, nor did
244 493 M
ICH
238 [Mar
Accord William R Roach & Co v Blair, 190 Mich 11,
16-17; 155 NW 696 (1916) (approving as being in
accordance with the “general rule” the trial court’s
articulation of damages as “ ‘the fair cash value at said
time and place of said property which was destroyed by
said fire, and the diminution in value of property
injured and not destroyed’ ”); Davidson v Michigan C R
Co, 49 Mich 428, 431; 13 NW 804 (1882) (“[I]n the case
of domestic animals injured, the proper rule of dam-
ages, as in the case of other perishable chattels, should
usually be the reduced value at the time.... [T]he
difference between the value before and after the acci-
dent will enable the owner to be fully indemnified.”);
Guzowski v Detroit Racing Ass’n, Inc, 130 Mich App
322, 328; 343 NW2d 536 (1983) (citing Davidson for the
conclusion that the proper measure of damages was the
difference in market value of a horse after it was injured
from its preinjury market value); Fite v North River Ins
Co, 199 Mich 467, 471; 165 NW 705 (1917) (indicating
the primacy of market value in assessing damages).
Michigan common law has continually followed the
O’Donnell rule. See Tillson, 269 Mich at 65; Jackson Co
Rd Comm’rs v O’Leary, 326 Mich 570, 576; 40 NW2d
729 (1950); State Hwy Comm’r v Predmore, 341 Mich
639, 642; 68 NW2d 130 (1955); Wolverine Upholstery Co
defendant make any showing as to the cost of full restoration and
repair of the house. Apparently, plaintiff tried the case on the
theory that the damage was permanent and irreparable. Never-
theless, if defendant shows that the property can be repaired and
restored to the condition it would have been in had it not been
damaged by the subsidence, and also gives proper testimony as to
the cost of the repairs, the court should make it clear to the jury
that the question as to the permanency of the damage, and, if
reparable, the cost of repairs, is one of fact for them to decide, if
they conclude that defendant was responsible for the damages.
[O’Donnell, 262 Mich at 476-477, going on to cite Berkey v
Berwind-White Coal Mining Co, 229 Pa 417, 428; 78 A 1004
(1911).]
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v Ammerman, 1 Mich App 235, 242; 135 NW2d 572
(1965); Bayley Products, Inc v American Plastic Prod-
ucts Co, 30 Mich App 590, 598; 186 NW2d 813 (1971)
(“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.”); Baranowski v Strating, 72 Mich App
548, 562; 250 NW2d 744 (1976); Bluemlein v Szepanski,
101 Mich App 184, 192; 300 NW2d 493 (1980); Str-
zelecki v Blaser’s Lakeside Indus of Rice Lake, Inc, 133
Mich App 191, 193-194; 348 NW2d 311 (1984); see also
People v Hamblin, 224 Mich App 87, 94; 568 NW2d 339
(1997) (analogizing to civil property-loss cases, includ-
ing Baranowski, in order to determine how to measure
damages in a criminal case); 2 Michigan Law of Dam-
ages & Other Remedies (3d ed), § 19.18, p 19-13 (“[T]he
measure of damages for injury to real property gener-
ally is the difference between the market value of the
property before and after the injury to the property.”); 7
Michigan Civil Jurisprudence (2009 rev), § 50, p 379
(“The measure of damages for negligent injury to real
property, if permanent and irreparable is the difference
between its market value before and after the dam-
age.”). Accordingly, the long-held common-law rule in
Michigan is that the measure of damages for the negli-
gent destruction of property is the cost of replacement
or repair.
3
Because replacement and repair costs reflect
economic damages, the logical implication of this rule is
3
A substantially similar, market-based approach to damages is em-
ployed by a number of other states, for example:
(1) Alabama: “The proper measure of compensatory damages in a tort
action based on damage to real property is the difference between the fair
market value of the property immediately before the damage and the fair
market value immediately after the damage.” Birmingham Coal & Coke
Co, Inc v Johnson, 10 So 3d 993, 998 (Ala, 2008) (citations and quotation
marks omitted).
246 493 M
ICH
238 [Mar
(2) Colorado: “In cases involving damage to property,... the
ordinary measure of damages is the diminution of market value of the
property.” Goodyear Tire & Rubber Co v Holmes, 193 P3d 821, 827
(Colo, 2008).
(3) Georgia: “[A]s a general rule the measure of damages in actions
for real property is the difference in value before and after the injury
to the premises[.]” Royal Capital Dev, LLC v Maryland Cas Co, 291 Ga
262, 264; 728 SE2d 234 (2012) (citation omitted).
(4) Idaho: “If land is taken or the value thereof totally destroyed,
the owner is entitled to recover the actual cash value of the land at the
time of the taking or destruction....”Nampa & Meridian Irrigation
Dist v Mussell, 139 Idaho 28, 33; 72 P3d 868 (2003) (citation and
quotation marks omitted).
(5) Kansas: “The ordinary measure of damages to real property is the
difference in value immediately before and after the damage and, in the
event of total destruction, the fair market value at the time of the
destruction.” Evenson v Lilley, 295 Kan 43, 52; 282 P3d 610 (2012).
(6) New Mexico: “[T]he market value for lost or destroyed property is
the proper measure of damages....”Castillo v Las Vegas, 2008 NMCA
141, ¶ 31; 145 NM 205, 214; 195 P3d 870 (NM App, 2008).
(7) Oklahoma: “[W]here damages are of a permanent nature, the
measure of damage is the difference between the actual value imme-
diately before and immediately after the damage is sustained.”
Schneberger v Apache Corp, 1994 OK 117, ¶ 10; 890 P2d 847, 849
(Okla, 1994) (citations and quotation marks omitted).
(8) Pennsylvania: “The proper measure of damages in a case where
the injury to the property was permanent is the market value of the
property immediately before the injury.” Oliver-Smith v Philadelphia,
962 A2d 728, 730 (Pa Cmwlth, 2008).
(9) South Carolina: “[T]he general rule is that in case of an injury
of a permanent nature to real property... the proper measure of
damages is the diminution of the market value by reason of that
injury....”Yadkin Brick Co, Inc v Materials Recovery Co, 339 SC 640,
645; 529 SE2d 764 (SC App, 2000) (citation and quotation marks
omitted).
(10) Texas: “As a rule, [the recoverable value of property] is
measured by the property’s market value or the cost of repairing it.”
City of Tyler v Likes, 962 SW2d 489, 497 (Tex, 1997).
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that the measure of damages excludes noneconomic
damages and the latter are not recoverable for the
negligent destruction of property.
4
See also 4 Restate-
4
A number of other states also preclude the recovery of noneconomic
damages for the negligent destruction of property, for example:
(1) Alabama: “[P]laintiffs cannot recover for mental anguish or
emotional distress unless they suffered physical injury or were in the
‘zone of danger.’ ” Birmingham, 10 So 3d at 999.
(2) Alaska: “The general rule is that where a tortfeasor’s negligence
causes emotional distress without physical injury, such damages may not
be awarded.” Hancock v Northcutt, 808 P2d 251, 257 (Alas, 1991).
(3) Maryland: “[A] plaintiff cannot ordinarily recover for emotional
injuries sustained solely as a result of negligently inflicted damage to the
plaintiff’s property.” Dobbins v Washington Suburban Sanitary Comm,
338 Md 341, 351; 658 A2d 675 (1995).
(4) Nevada: “[T]he better rule is to allow recovery only in cases which
pertain to emotional distress arising from harm to another person, and
not in cases, such as the one before us, which pertain to emotional
distress arising from property damage.” Smith v Clough, 106 Nev 568,
569-570; 796 P2d 592 (1990).
(5) New Mexico: “[A] plaintiff may not recover for emotional distress
based solely on a claim for negligent damage to property.” Castillo, 2008
NMCA at ¶ 21; 145 NM at 210.
(6) New York: Damages for mental anguish are not recoverable absent
“competent evidence of contemporaneous or consequential physical
harm[.]” Iannotti v City of Amsterdam, 225 AD2d 990, 990; 639 NYS2d
537 (NY App, 1996).
(7) Oklahoma: “[E]motional distress as a consequence of an inten-
tional tort is distinguishable from distress resulting from breach of
contract or negligence, which requires a showing of physical injury.”
Cleveland v Dyn-A-Mite Pest Control, Inc, 2002 OK Civ App 95, ¶ 52; 57
P3d 119, 131 (2002) (citation and quotation marks omitted).
(8) Oregon: “[P]sychic and emotional injuries” are not recoverable
where the “plaintiff suffered no physical injury from [the] defendants’
alleged negligence and [where the plaintiff] has not shown that [the]
defendants’ conduct was anything more than negligent[.]” Hammond
v Central Lane Communications Center, 312 Or 17, 20; 816 P2d 593
(1991).
248 493 M
ICH
238 [Mar
ment Torts, 2d, § 911 comment e, p 475 (“Compensatory
damages are not given for emotional distress caused
merely by the loss of... things....”); 1 Dobbs, Law of
Remedies (2d ed, 1993), Damages-Equity-Restitution,
§ 5.15(1), p 876 (“In general, the owner of damaged
property cannot recover damages for emotional distress as
an element of damage to the property.”); 22 Am Jur 2d,
Damages, § 255, pp 238-239; 38 Am Jur 2d, Fright, Shock,
Etc, § 19, p 31 (“Subject to some exceptions, generally,
under ordinary circumstances, there can be no recovery
for mental anguish suffered by a plaintiff in connection
with an injury to his or her property.”); 2 Restatement
Torts, 2d, § 313, pp 113-115 (implying that damages for
emotional distress are not recoverable in cases concerning
negligently inflicted injury to property);
5
4 Restatement
(9) Texas: “[M]ental anguish based solely on negligent property
damage is not compensable as a matter of law.” Likes, 962 SW2d at 497.
5
Section 313 of the Restatement Second of Torts concerns “Emotional
Distress Unintended.” It provides:
(1) If the actor unintentionally causes emotional distress to
another, he is subject to liability to the other for resulting illness or
bodily harm if the actor
(a) should have realized that his conduct involved an unrea-
sonable risk of causing the distress, otherwise than by knowledge
of the harm or peril of a third person, and
(b) from facts known to him should have realized that the
distress, if it were caused, might result in illness or bodily harm.
(2) The rule stated in Subsection (1) has no application to
illness or bodily harm of another which is caused by emotional
distress arising solely from harm or peril to a third person, unless
the negligence of the actor has otherwise created an unreasonable
risk of bodily harm to the other. [2 Restatement Torts, 2d, § 313,
p 113 (emphasis added).]
As the comments to subsection (2) indicate, the basis for allowing the
recovery for emotional distress in this context is that those actions
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Torts, 2d, § 911 comment e, p 474 (“Even when the
subject matter has its chief value in its value for use by the
injured person, if the thing is replaceable, the damages for
its loss are limited to replacement value, less an amount
for depreciation.”); 28 ALR2d 1070, § 8, p 1093 (“In
simple negligence cases involving personal property, the
courts have been reluctant to authorize the allowance of
damages for mental anguish or disturbance allegedly
caused by the defendant’s wrongful acts.”).
Lending additional support to this conclusion is the
simple fact that, before the Court of Appeals’ opinion
below, no case ever in the history of the Michigan
common law has approvingly discussed the recovery of
noneconomic damages for the negligent destruction of
property. Indeed, no case has even broached this issue
except through the negative implication arising from
limiting damages for the negligent destruction or dam-
age of property to replacement and repair costs. Put
another way, despite the fact that throughout the
course of our state’s history, many thousands of houses
and other real properties have doubtlessly been negli-
gently destroyed or damaged, and despite the fact that
surely in a great many, if not a majority, of those cases
the residents and owners of those properties suffered
considerable emotional distress, there is not a single
Michigan judicial decision that expressly or impliedly
supports the recovery of noneconomic damages in these
circumstances.
6
Thus, supplementing the affirmative
judicial decisions that we have cited in support of the
“threaten[] the plaintiff with bodily harm ....” Id. at 114 (emphasis
added). Accordingly, when there is nothing threatening the plaintiff with
bodily harm, for instance when a claim involves only property damage, a
defendant is not liable for unintended emotional distress.
6
Indeed, O’Donnell, Baranowski, and Strzelecki all involved negligent
damage to houses, while Tillson, Bayley, and Bluemlein involved negli-
gent damage to other privately owned real property.
250 493 M
ICH
238 [Mar
limiting principles of the common law for the calcula-
tion of property damages is the absence of even a single
affirmative judicial decision in support of the contrary
proposition, a proposition that one would expect to have
become commonplace within the law if it had ever
existed. However, this particular dog has been perpetu-
ally silent and has never barked.
Moreover, the Court of Appeals has decided two
relatively recent cases concerning injury to personal
property in which noneconomic damages were disal-
lowed. In Koester v VCA Animal Hosp, 244 Mich App
173; 624 NW2d 209 (2000), the plaintiff dog owner
sought noneconomic damages in a tort action against
his veterinarian following the death of his dog resulting
from the veterinarian’s negligence. The trial court
granted the defendant’s motion for summary disposi-
tion, holding that “emotional damages for the loss of a
dog do not exist.” Id. at 175. On appeal, the Court of
Appeals affirmed, noting that pets are personal prop-
erty under Michigan law and explaining that there “is
no Michigan precedent that permits the recovery of
damages for emotional injuries allegedly suffered as a
consequence of property damage.” Id. at 176.
Later, in Bernhardt v Ingham Regional Med Ctr, 249
Mich App 274; 641 NW2d 868 (2002), the plaintiff
visited the defendant hospital to bring home her
adopted, newborn son. Before washing her hands, the
plaintiff removed her jewelry, which consisted of her
grandmother’s 1897 wedding ring (which was also her
wedding ring) and a watch purchased in 1980 around
the time of her brother’s murder. The plaintiff acciden-
tally forgot the jewelry in the washbasin and left the
hospital. Upon realizing her mistake, the plaintiff con-
tacted the defendant and was advised that she could
retrieve the jewelry from hospital security. However,
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when she tried to retrieve the jewelry, it could not be
located. The plaintiff sued, and the defendant moved for
summary disposition, arguing that the plaintiff’s dam-
ages did not exceed the $25,000 jurisdictional limit of
the trial court. The plaintiff countered that her dam-
ages exceeded that limit because the jewelry possessed
great sentimental value. The trial court granted the
defendant’s motion. On appeal, the Court of Appeals
affirmed, citing Koester, 109 Mich App at 176, for the
proposition that there “is no Michigan precedent that
permits the recovery of damages for emotional injuries
allegedly suffered as a consequence of property dam-
age,” Bernhardt, 249 Mich App at 279. Bernhardt
concluded:
In the present case, the two items of jewelry have a
market value that can easily be ascertained. Hence, fair
market value is the measure of damages. Because the items
have a fair market value, there is no need to resort to an
alternative measure of damages to compensate plaintiff for
her loss. [Id. at 281.]
In support of its conclusion, Bernhardt quoted the
following language from the Restatement Second of
Torts:
If the subject matter cannot be replaced, however, as in
the case of a destroyed or lost family portrait, the owner
will be compensated for its special value to him, as evi-
denced by the original cost, and the quality and condition
at the time of the loss....Inthese cases, however, damages
cannot be based on sentimental value. Compensatory dam-
ages are not given for emotional distress caused merely by
the loss of the things, except that in unusual circumstances
damages may be awarded for humiliation caused by depri-
vation, as when one is deprived of essential elements of
clothing. [Id. at 281, quoting 4 Restatement Torts, 2d,
§ 911, comment e, pp 474-475 (quotation marks omitted).]
252 493 M
ICH
238 [Mar
While Koester and Bernhardt both involved negligent
injury to personal property, they speak of property
generally.
7
Although the Court of Appeals in the instant
case seeks to draw distinctions between personal and
real property, neither that Court nor plaintiff has
explained how any of those distinctions, even if they
had some pertinent foundation in the law, are relevant
with regard to the propriety of awarding noneconomic
damages.
8
In short, while it is doubtlessly true that
7
Koester and Bernhardt stated that there is no Michigan precedent
permitting the recovery of noneconomic damages resulting from property
damage. Those statements are not limited to personal property damage.
For example, Bernhardt cited the Restatement of Torts, which provides
that “[c]ompensatory damages are not given for emotional distress
caused merely by the loss of the things....” Bernhardt, 249 Mich App at
281 (citation and quotation marks omitted). A house may be a home, but
it is also a thing, albeit a thing to which many people develop emotional
attachment. But like the jewelry in Bernhardt, a house has “a market
value that can easily be ascertained.” Id. at 281. Moreover, in Wolverine,
1 Mich App at 242, the Court of Appeals expressly applied the rule from
O’Donnell, a real-property case, to personal property. See also Strzelecki,
133 Mich App at 194 (citing Wolverine for the proposition that the
O’Donnell rule applies “as well to damages for personal property injured
through negligence”).
8
In justifying its holding, the Court of Appeals identified the following
differences between real and personal property: (1) trespass to land,
unlike trespass to chattels, does not require an actual showing of damage,
Price, 294 Mich App at 55; (2) breach of contract for the sale of real
property includes the right to specific performance, id. at 56; (3)
“[a]uthors and poets alike wax philosophical about the unique value of a
home,” id.; and (4) the destruction of a house causes “the stress and
upheaval of displacement and the need to alternate shelter,” id. at 57.
However, none of these differences is relevant to whether noneconomic
damages should be available for the negligent destruction of real prop-
erty: (1) allowing for nominal damages in a real-property trespass claim,
and not a trespass-to-chattels claim, is merely a recognition in the law
that a trespass to land can occur without causing actual damage, whereas
a trespass to chattel actually deprives the owner of the chattel and, by
necessity, causes actual damage; (2) specific performance remedies may
be granted in cases involving both personal and real property, see
Richardson v Lamb, 253 Mich 659, 663; 235 NW 817 (1931); (3) authors
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many people are highly emotionally attached to their
houses, many people are also highly emotionally at-
tached to their pets,
9
their heirlooms, their collections,
and any number of other things. But there is no legally
relevant basis that would logically justify prohibiting
the recovery of noneconomic damages for the negligent
killing of a pet or the negligent loss of a family heirloom
but allow such a recovery for the negligent destruction
of a house.
10
Accordingly, Koester and Bernhardt under-
score O’Donnell’s exclusion of noneconomic damages
for negligent injury to real and personal property.
Finally, we would be remiss if we did not address
Sutter v Biggs, 377 Mich 80, 86; 139 NW2d 684 (1966)
(concerning a medical malpractice claim in which the
plaintiff’s ovary and fallopian tube were removed with-
out her consent), which the Court of Appeals cited as
providing the “general rule” for the recovery of dam-
ages in tort actions. Sutter stated:
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
and poets wax philosophical—or poetic—about many things, but these
waxings do not define the common law; and (4) the costs of relocating and
rebuilding a house—obtaining “alternate shelter” and attendant per-
sonal upheavals—define the measure of what are largely economic costs
and were covered by defendant, defendant’s insurer, and plaintiff’s
insurer. We do not question that there is personal stress attendant to the
suffering of any tort, but such stress can as easily accompany the
destruction or damage of personal property as of real property.
9
Indeed, Koester, 244 Mich App at 175, recognized the fact that
“domesticated pets have value and sentimentality associated with them
which may not compare with that of other personal property....”
10
As defense counsel pointed out at oral argument, it seems anomalous
that under the Court of Appeals’ theory, while plaintiff could not recover
damages for her emotional attachment to a family portrait that hung on
the wall in her house, she could recover for emotional attachment to the
wall itself. The Court of Appeals’ distinctions between real and personal
property are ultimately arbitrary and unsustainable.
254 493 M
ICH
238 [Mar
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. Remote contingent, or speculative
damages are not considered in conformity to the general
rule. Van Keulen & Winchester Lumber Co. v. Manistee and
Northeastern Railroad Co., 222 Mich 682 [193 NW 289
(1923)]; Woodyard v. Barnett, 335 Mich 352 [56 NW2d 214
(1953)]; and Fisk v. Powell, 349 Mich 604 [84 NW2d 736
(1957)]. See, also McLane, Swift & Co. v. Botsford Elevator
Co., 136 Mich 664 [99 NW 875 (1904)], and Cassidy v.
Kraft-Phenix Cheese Corp., 285 Mich 426 [280 NW 814
(1938)]. [Id.]
Although Sutter articulates a “general rule,” it is a
“general rule” that has never been applied to allow the
recovery of noneconomic damages in a case involving
only property damage,
11
and it is a “general rule” that
must be read in light of the more narrow and specific
“general rule” of O’Donnell.
12
11
None of the cases cited by Sutter in support of its “general rule”
involved noneconomic damages. Van Keulen, 222 Mich 682 (whether and to
what extent the defendant was liable for failing to notify a consignee that
delivered lumber had not been kiln-dried); Woodyard, 335 Mich 352
(whether the defendant was liable for the plaintiff’s inability to complete his
beet harvest); Fisk, 349 Mich 604 (whether the defendants were liable for
the plaintiffs’ partial crop failure); McLane, 136 Mich 664 (whether the
defendant’s failure was a proximate cause of the plaintiff’s loss of oats);
Cassidy, 285 Mich 426 (whether the defendant’s refusal to enter into a
written contract removed the plaintiff’s claim from the statute of frauds).
12
Valentine v Gen American Credit, Inc, 420 Mich 256, 261; 362 NW2d
628 (1984), explained that emotional harm attendant to economic loss is
insufficient to warrant noneconomic damages even where a plaintiff
would not be made whole absent such damages:
The denial of mental distress damages, although the result is to
leave the plaintiff with less than a full recovery, has analogy in the
law. The law does not generally compensate for all losses suffered.
Recovery is denied for attorney’s fees, for mental anguish not
accompanied by physical manifestation, and “make-whole” or full
recovery has been denied where the cost of performance exceeds
2013] P
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The development of the common law frequently
yields “general rules” from which branch more specific
“general rules” that apply in limited circumstances.
Where tension exists between those rules, the more
specific rule controls.
13
See Moning v Alfono, 400 Mich
425, 442-449; 254 NW2d 759 (1977) (acknowledging the
“general standard of conduct” in a negligence case but
allowing the jury to consider “one of the many specific
rules concerning particular conduct that have evolved
in the application of the general standard of care”); see
also Beech Grove, 380 Mich at 430 (“ ‘[C]hanging con-
ditions may give rise to new rights under the law, and,
also, where the reason on which existing rules of the
common law are founded ceases, the rules may cease to
have application.’ ”), quoting 15A CJS, Common Law,
§ 2, pp 43-44. With respect to this case, although Sutter
articulated a general rule, O’Donnell articulated a more
specific “general rule,” applicable in negligence actions
in which there is only property damage. Accordingly,
because this case involves only property damage, the
O’Donnell rule, not the Sutter rule, controls.
14
the value to the promisee. The courts have not, despite “make
whole” generalizations regarding the damages recoverable, at-
tempted to provide compensation for all losses. Instead, specific
rules have been established that provide for the calculation of the
damages recoverable in particular kinds of actions. [Citations
omitted.]
The O’Donnell rule is precisely such a specific rule in an action for the
negligent destruction of property.
13
This tension does not suggest that the more general rule is incorrect,
only that it must yield to the more specific rule in the appropriate
circumstances. That is the case for Sutter’s rule; that is, while Sutter
provided an appropriate “general rule” for tort actions generally,
O’Donnell provided an exception to that rule that has been specifically
adapted to tort actions involving only property damage.
14
Although Sutter was decided some years after O’Donnell, the “gen-
eral rules” articulated in these cases have each been restated repeatedly
256 493 M
ICH
238 [Mar
B. ALTERING THE COMMON LAW
Because the Court of Appeals determined that the
“general rule” is that “in a tort action, the tort-feasor is
liable for all injuries,”
15
the Court of Appeals contended
that it was not altering the common law but, rather,
“declin[ing] to extend” to real property the personal
property “exception” set forth in Koester and Bern-
hardt.
16
Price, 294 Mich App at 54-55 (quotation marks
and citation omitted). However, as previously men-
tioned, the Court of Appeals’ opinion constitutes the
first and only Michigan case to support the recovery of
noneconomic damages for the negligent destruction of
over the years without conflict (until this case). This history underscores
that the two “general rules” here operate in parallel and are complemen-
tary.
15
The Court of Appeals did not acknowledge Valentine. It addressed the
O’Donnell rule—by reference to Strzelecki and Baranowski—but deter-
mined that application of that rule to the instant case would be
inappropriate because the cases in which that rule has been applied
“addressed the measure of damages for economic loss suffered as a result
of the destruction of real property” and did not include “a discussion of
noneconomic damages.” Price, 294 Mich App at 53. This ignores Wolver-
ine (and Strzelecki’s citation of Wolverine), which applied the O’Donnell
rule to damages for personal property. Moreover, in our judgment, the
absence of discussion regarding noneconomic damages, as explained
earlier in this opinion, supports, rather than undermines, our conclusion
that noneconomic damages are not recoverable. Not only did both
Strzelecki and Baranowski involve damage to houses, but one would
think that decades-long restatements by the judiciary of this state that
tort damage to property is recompensed byx+ywould at some point
logically communicate that z is not also included.
16
Contrary to the analysis of the Court of Appeals in this case, Koester,
244 Mich App at 176, explained that it was declining to create new tort
liability:
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.
2013] P
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property.
17
See 2 Michigan Law of Damages & Other
Remedies (3d ed), § 19.18.
18
Accordingly, contrary to the
Court of Appeals’ own characterization and for the
reasons discussed in part III(A) of this opinion, the
Court of Appeals’ holding represents an alteration of
the common law. With that understanding, we address
whether the common law should be altered.
“This Court is the principal steward of Michigan’s
common law,” Henry v Dow Chem Co, 473 Mich 63, 83;
701 NW2d 684 (2005), and it is “axiomatic that our
courts have the constitutional authority to change the
common law in the proper case,” North Ottawa Com-
munity Hosp v Kieft, 457 Mich 394, 403 n 9; 578 NW2d
267 (1998). This authority is traceable to Const 1963,
17
It is also worth noting that none of the cases cited by the Court of
Appeals in this case involved only property damage. Indeed, with the
exception of Daley v LaCroix, 384 Mich 4; 179 NW2d 390 (1970), none of
the cases cited by the Court of Appeals involved property damage at all.
Sutter, 377 Mich at 83-84, and McClain v Univ of Mich Bd of Regents, 256
Mich App 492, 493-494; 665 NW2d 484 (2003), both involved claims for
bodily injury resulting from medical malpractice. Phillips v Butterball
Farms Co, Inc (After Second Remand), 448 Mich 239, 241-242; 531 NW2d
144 (1995), involved a claim for emotional distress resulting from a
retaliatory discharge, and Daley, 384 Mich at 13, involved a claim for
emotional distress resulting from fright. Moreover, Stevens v City of Flint,
unpublished opinion per curiam of the Court of Appeals, issued Decem-
ber 20, 2007 (Docket No. 272329), and Bielat v South Macomb Disposal
Auth, unpublished opinion per curiam of the Court of Appeals, issued
November 9, 2004 (Docket No. 249147)—the unpublished opinions the
Court of Appeals cited as persuasive authority—both involved trespass-
nuisance claims.
18
The treatise cites the Court of Appeals’ decision as the only exception
to the O’Donnell rule:
Note that the Michigan Court of Appeals has held that a
plaintiff may seek recovery for noneconomic damages in a negli-
gence action for mental anguish naturally flowing from the dam-
age to or destruction of real property. [2 Michigan Law of Damages
& Other Remedies (3d ed), § 19-18, citing Price, 294 Mich App 42.]
258 493 M
ICH
238 [Mar
art 3, § 7, which states, “The common law and the
statute laws now in force, not repugnant to this consti-
tution, shall remain in force until they expire by their
own limitations, or are changed, amended or repealed.”
Thus, as this Court has explained, “the common-law
rule remains the law until modified by this Court or by
the Legislature.” Longstreth v Gensel, 423 Mich 675,
686; 377 NW2d 804 (1985). However, this Court has
also explained that alteration of the common law should
be approached cautiously with the fullest consideration
of public policy and should not occur through sudden
departure from longstanding legal rules. Henry, 473
Mich at 83 (“[O]ur common-law jurisprudence has been
guided by a number of prudential principles. See Young,
A judicial traditionalist confronts the common law,8
Texas RevL&Pol299, 305-310 (2004). Among them
has been our attempt to ‘avoid capricious departures
from bedrock legal rules as such tectonic shifts might
produce unforeseen and undesirable consequences,’ id.
at 307....”); see also Woodman, 486 Mich at 231
(opinion by Y
OUNG
, J.) (“[M]odifications [of the common
law] should be made with the utmost caution because it
is difficult for the judiciary to assess the competing
interests that may be at stake and the societal trade-offs
relevant to one modification of the common law versus
another in relation to the existing rule.”); id. at 268
(M
ARKMAN
, J., concurring in part and dissenting in part)
(explaining that the common law develops incremen-
tally); North Ottawa, 457 Mich at 403 n 9 (providing
that common law should only be changed “in the proper
case”).
19
As this emphasis on incrementalism suggests,
19
Similarly, Koester, 244 Mich App at 176-177, explained:
There are several factors that must be considered before expand-
ing or creating tort liability, including, but not limited to, legislative
and judicial policies. In this case, there is no statutory, judicial, or
2013] P
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when it comes to alteration of the common law, the
traditional rule must prevail absent compelling reasons
for change. This approach ensures continuity and sta-
bility in the law.
With the foregoing principles in mind, we respect-
fully decline to alter the common-law rule that the
appropriate measure of damages for negligently dam-
aged property is the cost of replacement or repair. We
are not oblivious to the reality that destruction of
property or property damage will often engender con-
siderable mental distress, and we are quite prepared to
believe that the particular circumstances of the instant
case were sufficient to have caused exactly such dis-
tress. However, we are persuaded that the present rule
is a rational one and justifiable as a matter of reason-
able public policy. We recognize that might also be true
of alternative rules that could be constructed by this
Court. In the final analysis, however, the venerability of
the present rule and the lack of any compelling argu-
ment that would suggest its objectionableness in light of
changing social and economic circumstances weigh, in
our judgment, in favor of its retention. Because we
believe the rule to be sound, if change is going to come,
it must come by legislative alteration.
20
A number of
factors persuade us that the longstanding character of
other persuasive authority that compels or permits this Court to take
the drastic action proposed by plaintiff. Case law on this issue from
sister states is not consistent, persuasive, or sufficient precedent. We
refuse to create a remedy where there is no legal structure in which
to give it support. However, plaintiff and others are free to urge the
Legislature to visit this issue in light of public policy considerations,
including societal sentiment....
20
Although this Court is vested with the power to alter the common
law, as already explained, such alteration should not be undertaken
lightly. As counseled in People v Kevorkian, 447 Mich 436, 482 n 60; 527
NW2d 714 (1994) (opinion by C
AVANAGH
, C.J., and B
RICKLEY
and G
RIFFIN
,
JJ.), quoting Justice Cardozo’s The Nature of the Judicial Process:
260 493 M
ICH
238 [Mar
the present rule is not simply a function of serendipity
or of judicial inertia, but is reflective of the fact that the
rule serves legitimate purposes and values within our
legal system.
First, one of the most fundamental principles of our
economic system is that the market sets the price of
property. This is so even though every individual values
property differently as a function of his or her own
particular preferences. Inherent in this principle is that
any property an individual owns is presumably valued
by that individual at or above its market rate. Other-
wise, he or she presumably would not have purchased
the property or continue to own it. Just as an individual
typically does not pay for this surplus value, the law
does not necessarily compensate that individual where
that surplus value has been lost.
21
Second, economic damages, unlike noneconomic
damages, are easily verifiable, quantifiable, and mea-
The judge, even when he is free, is still not wholly free. He is
not to innovate at pleasure. He is not a knight-errant, roaming at
will in pursuit of his own ideal of beauty or of goodness. He is to
draw his inspiration from consecrated principles. He is not to yield
to spasmodic sentiment, to vague and unregulated benevolence.
He is to exercise a discretion informed by tradition, methodized by
analogy, disciplined by system, and subordinated to the primordial
necessity of order in the social life. Wide enough in all conscience
is the field of discretion that remains. [Quotation marks and
citations omitted.]
Thus, this Court does not alter the common law at its unchecked
discretion, much less at its whim. Rather, we are bound to tradition and
stability and continuity. By virtue of its overtly political and representa-
tive nature, the Legislature is bound by different considerations. The
barriers standing before this Court’s alteration of the common law are
significantly higher than those facing the Legislature.
21
Concomitantly, even if an individual values his or her property below
the market rate, the law does not reduce his or her tort damages by that
amount.
2013] P
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surable. Thus, when measured only in terms of eco-
nomic damages, the value of property is easily ascer-
tainable. Employing market prices in calculating
compensation for property damage eliminates the need
to engage in subjective determinations of property
value and enables the legal system to undertake com-
monplace and precise determinations of value. This
explains why, at least where the plaintiff has not
sustained physical injury, the cost of the property’s
replacement or repair has been the traditional standard
for making a plaintiff “whole” under the law. See
Valentine v Gen American Credit, Inc, 420 Mich 256,
261; 362 NW2d 628 (1984); Bernhardt, 249 Mich App at
279. This is so despite the fact that nearly every case
involves some measure of emotional harm—if only from
the stress of litigation—to victimized parties.
Third, limiting damages to the economic value of the
damaged or destroyed property limits disparities in
damage awards from case to case. Disparities in recov-
ery are inherent in legal matters in which the value of
what is in dispute is neither tangible nor objectively
determined, but rather intangible and subjectively de-
termined. Whereas under the present rule, all plaintiffs
suffering an identical harm to their properties are
compensated on a uniform basis, under the Court of
Appeals’ rule, there would be as many levels of compen-
sation as there are plaintiffs because no two plaintiffs
would likely react to the damage or destruction of their
properties in exactly the same fashion. Indeed, both
objective and subjective disparities would result. Objec-
tive disparities would arise because, even if noneco-
nomic harms were precisely quantifiable, identical in-
juries to identical properties could lead to severe mental
distress for one person, while causing only minor an-
noyance for another. Subjective disparities would arise
because noneconomic harms cannot be precisely quan-
262 493 M
ICH
238 [Mar
tified, so we must normally rely on juries to determine
(1) whether noneconomic harms were caused, (2) the
extent of such harms, and (3) the monetary value of
such harms. The disparity in assessing damages by
different fact-finders would presumably compound with
each step in this chain of conjecture.
Fourth, the present rule affords some reasonable
level of certainty to businesses regarding the potential
scope of their liability for accidents caused to property
resulting from their negligent conduct. As explained
earlier in this opinion, under the Court of Appeals’ rule,
those businesses that come into regular contact with
real property—contractors, repairmen, and fuel suppli-
ers, for example—would be exposed to the uncertainty
of not knowing whether their exposure to tort liability
will be defined by a plaintiff who has an unusual
emotional attachment to the property or by a jury that
has an unusually sympathetic opinion toward those
emotional attachments. Insurers would have a similarly
difficult time calculating the extent of the risks against
which they are insuring. Schwartz & Laird, Non-
economic damages in pet litigation: The serious need to
preserve a rational rule, 33 Pepp L R 227, 261 (2006)
(“When wild-card non-economic damages are added to
the equation, however, actuaries cannot accurately pre-
dict the likely costs of lawsuits.”), citing Huss, Valua-
tion in veterinary malpractice, 35 Loy U Chi L J 479,
532 (2004).
Once again, it is not our view that the common-law
rule in Michigan cannot be improved, or that it repre-
sents the best of all possible rules, only that the rule is
a reasonable one and has survived for as long as it has
because there is some reasonable basis for the rule and
that no compelling reasons for replacing it have been
set forth by either the Court of Appeals or plaintiff. We
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therefore leave it to the Legislature, if it chooses to do
so at some future time, to more carefully balance the
benefits of the current rule with what that body might
come to view as its shortcomings.
22
IV. CONCLUSION
The issue in this case is whether noneconomic dam-
ages are recoverable for the negligent destruction of
real property. No Michigan case has ever allowed a
plaintiff to recover noneconomic damages resulting
solely from the negligent destruction of property, either
real or personal. Rather, the common law of this state
has long provided that the appropriate measure of
damages in cases involving the negligent destruction of
property is simply the cost of replacement or repair of
the negligently destroyed property. We continue today
to adhere to this rule and decline to alter it. Accordingly,
we reverse the judgment of the Court of Appeals and
remand this case to the trial court for entry of summary
disposition in defendant’s favor.
Y
OUNG
, C.J., and M
ARY
B
ETH
K
ELLY
and Z
AHRA
,JJ.,
concurred with M
ARKMAN
,J.
C
AVANAGH
, J., took no part in the decision of this case
because of a familial relationship with counsel of record.
M
C
C
ORMACK
and V
IVIANO
, JJ., took no part in the
decision of this case.
22
Having reached this conclusion, we need not address defendant’s
additional claims on appeal.
264 493 M
ICH
238
ELBA TOWNSHIP v GRATIOT COUNTY DRAIN COMMISSIONER
Docket No. 144166. Argued January 9, 2013 (Calendar No. 6). Decided
April 9, 2013.
Elba Township brought an action in the Gratiot Circuit Court
against the Gratiot County Drain Commissioner seeking to enjoin
the commissioner from consolidating the drainage districts asso-
ciated with the No. 181-0 drain and its tributary drains. Elba
Township argued that the consolidation proceedings had violated
the Drain Code, MCL 280.1 et seq., because the No. 181-0 drain
petition for consolidation lacked the statutorily required number
of freeholder signatures and the notice of the hearing by the board
of determination had been deficient. David Osborn, Mark Crum-
baugh, Cloyd Cordray, and Rita Cordray (the Osborn plaintiffs)
intervened in the action, similarly seeking declaratory and injunc-
tive relief and claiming that the petition was defective and that the
notice of the meeting of the board of determination was defective,
resulting in a violation of their due process rights. With regard to
the due process claim, the Osborn plaintiffs’ primary complaint
was that some of the property that would be affected by the
drainage project lay outside the townships listed in the notice,
although the notice stated that it was being sent to persons liable
for an assessment. The drain commissioner moved for summary
disposition, arguing that the appropriate number of signatures
had been gathered and that the notice given appropriately in-
formed those affected by the proposed consolidation of the date,
time, and place of the board-of-determination hearing. Elba Town-
ship 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 Osborn plaintiffs appealed. The
Court of Appeals, M. J. K
ELLY
,P.J., and F
ITZGERALD
and W
HITBECK
,
JJ., affirmed the trial court’s exercise of equitable jurisdiction, but
reversed on the merits. 294 Mich App 310 (2011). The Supreme
Court granted the drain commissioner’s application for leave to
appeal. 491 Mich 924 (2012).
E
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In an opinion by Justice M
ARKMAN
, joined by Chief Justice
Y
OUNG
and Justices C
AVANAGH
,M
ARY
B
ETH
K
ELLY
,Z
AHRA
, and
M
C
C
ORMACK
, the Supreme Court held:
The remedy for a failure to comply with the requirements of
the Drain Code is certiorari review. Courts may exercise equitable
jurisdiction over disputes involving a failure to follow the require-
ments of the Drain Code only if the failure is so egregious that it
implicates constitutional concerns.
1. A party aggrieved by any part of the proceedings in estab-
lishing any drain and levying taxes for the drain may seek
certiorari review under MCL 280.161. A writ of certiorari (which
under MCR 3.302(c) has been replaced by the superintending
control order) for any error occurring before or in the final order
of determination must be issued within 10 days after a copy of the
final order is filed in the office of the drain commissioner, and for
any error occurring after the final order of determination, within
10 days after the day of review, or if an appeal has been taken,
within 10 days after the filing of the report of the board of review.
Under MCL 280.161, if no certiorari is brought within the time
prescribed by statute, the drain will be deemed to have been legally
established, and the taxes for the drain legally levied, and the
legality of the drain and the taxes may not thereafter be ques-
tioned in any suit at law or equity. Nevertheless, Michigan courts
have historically been permitted to exercise equitable jurisdiction
when a plaintiff alleges a constitutional infirmity in the proceed-
ings surrounding a drainage project. A failure to follow the
requirements of the Drain Code will not warrant the exercise of
equitable jurisdiction unless the failure is so egregious that it
implicates constitutional concerns, which will almost always in-
volve the deprivation of property without due process of law. The
remedy for failure to comply with the technical requirements of
the Drain Code is certiorari review, and any error in this case
concerning the signature requirements for the petition was ame-
nable to correction on certiorari review. Accordingly, certiorari was
the exclusive avenue of review for that claim, and both lower
courts erred by reaching the merits of the signature-requirement
issue.
2. True questions of due process may be heard in equity
because they implicate the constitutional exception to MCL
280.161. To comport with due process, notice, when required, must
be reasonably calculated under all the circumstances to apprise
interested parties of the pendency of the action and afford them an
opportunity to present their objections. In this case, while it was
within the lower courts’ equitable jurisdiction to address the
266 493 M
ICH
265 [Apr
notice issue, due process did not require that any notice be given
regarding the meeting of the board of determination because the
meeting did not pertain to deprivation of life, liberty, or property.
Rather, it pertained to the propriety of the drainage project under
the Drain Code, which requires that the project be necessary and
conducive to public health, convenience, or welfare. Property
owners who might be assessed for a drainage project are not
constitutionally entitled to notice regarding proceedings to deter-
mine the necessity and conduciveness of a drainage project; they
are constitutionally entitled, however, to notice regarding assess-
ment proceedings for the drainage project. Plaintiffs thus were
entitled to notice that the subsequent day of review concerning
apportionment of benefits of the project would be held, and they
received that notice.
Court of Appeals’ judgment reversed; trial court order granting
summary disposition in favor of defendant reinstated.
Justice V
IVIANO
took no part in the decision of this case.
1. D
RAINS —
D
RAIN
C
ODE —
V
IOLATIONS —
C
ERTIORARI
R
EVIEW —
E
QUITABLE
R
EMEDIES
.
The remedy for failure to comply with the technical requirements of
the Drain Code is certiorari review; a failure to follow the
requirements of the Drain Code will not warrant the exercise of
equitable jurisdiction unless the failure is so egregious that it
implicates constitutional concerns (MCL 280.1 et seq.).
2. D
RAINS —
D
RAINAGE
P
ROJECTS —
D
UE
P
ROCESS
.
After a petition for maintenance or improvement of a drain or the
consolidation of drainage districts is submitted, the county drain
commissioner may appoint a board of determination to determine
whether the maintenance or improvement or the consolidation is
necessary and conducive to public health, convenience, or welfare;
property owners who might be assessed for a drainage project are
not constitutionally entitled to notice regarding a hearing on the
necessity and conduciveness of the drainage project; they are
constitutionally entitled, however, to notice regarding assessment
proceedings for the drainage project (US Const, Am XIV; Const
1963, art 1, § 17; MCL 280.1 et seq.).
Smith Bovill, P.C. (by David B. Meyer and Elian E. H.
Fichtner), for Elba Township, David L. Osborn, Mark
Crumbaugh, Cloyd Cordray, and Rita Cordray.
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Clark Hill PLC (by James E. Brenner and Douglas R.
Kelly) and Fahey Schultz Burzych Rhodes PLC (by
Stacy L. Hissong and Stephen J. Rhodes) for the Gratiot
County Drain Commissioner.
Amici Curiae:
The Hubbard Law Firm, P.C. (by Michael G. Wood-
worth, Andria M. Ditschman, and N. Banu Colak), for
the Michigan Association of County Drain Commission-
ers.
Bauckham, Sparks, Lohrstorfer, Thall & Seeber, P.C.
(by John K. Lohrstorfer), for the Michigan Townships
Association.
M
ARKMAN
, J. The issues presented here are (1)
whether the lower courts properly exercised equitable
jurisdiction with regard to this case and, if so, (2)
whether the Drain Code requires 5 or 50 signatures for
a drainage-district consolidation petition, and (3)
whether the notice given regarding a drainage “board of
determination” hearing satisfied the constitutional re-
quirements of due process. We conclude that the lower
courts improperly exercised equitable jurisdiction over
the signature-requirement question but properly exer-
cised such jurisdiction over the question of notice. The
former question is purely statutory and, as such, there
were no grounds on which the lower courts could
properly exercise equitable jurisdiction. Though the
exercise of equitable jurisdiction over the latter ques-
tion was proper, we conclude that constitutional due
process did not entitle plaintiffs to receive notice of the
“board of determination” hearing. Accordingly, we re-
verse the judgment of the Court of Appeals and rein-
state the trial court’s order granting summary disposi-
tion for defendant.
268 493 M
ICH
265 [Apr
I. DRAIN CODE
The first drain laws were enacted before Michigan
became a state. See 2 Territorial Laws, Act of March 30,
1827, § 19, p 325. Amended frequently during the nine-
teenth and early twentieth centuries, our drain laws
have historically served the public purposes of promot-
ing the productive use of the state’s land resources and
combatting the spread of water- and mosquito-borne
diseases, such as cholera and malaria. See 1846 RS, ch
131, § 1 (stating that before a ditch may be constructed
through an individual’s land against his will, the town-
ship board must inquire whether the “marsh, swamp or
other lands [to be drained by the ditch] are a source of
disease to the inhabitants, and whether the public
health will be promoted by draining the same”); Ka-
plowitz & Popp, Occupying the same wetland: Michi-
gan’s Drain Code and the federal Clean Water Act,77U
Det Mercy L R 779, 781-785 (2000). In light of the
importance of these functions, those governmental of-
ficials charged at various stages of our state’s history
with overseeing the construction and maintenance of
drains have been accorded fairly sweeping powers sub-
ject only to limited judicial review. The present Drain
Code (the Code), based in large part on these early
statutes, retains these characteristics. MCL 280.1 et
seq. That the Code is based on these early statutes is
likely also one of the reasons why the Code constitutes
one of the more arcane portions of Michigan statutory
law. See Eyde v Lansing Twp, 109 Mich App 641, 645;
311 NW2d 438 (1981) (“[T]he Drain Code of 1956 [is] an
exceedingly complex statute, the provisions of which
apparently are known by few in the profession and
understood by far fewer.”) (citations and quotation
marks omitted) (emphasis omitted). Thus, before pro-
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ceeding to the facts and procedural history of this case,
we first discuss applicable portions of the Code.
Under the Code, a “drain” is essentially any water-
course (whether natural or artificial, above or below
ground) and the structures or mechanical equipment
used to control the flow of that watercourse (excluding
certain power-generating dams and the flowage rights
used in connection therewith). MCL 280.3. A “drainage
district” is the area in which the drain operates. It is “a
body corporate with power to contract, to sue and to be
sued, and to hold, manage and dispose of real and
personal property, in addition to any other powers
conferred upon it by law.” MCL 280.5. But the distinc-
tion between a drain and a drainage district is not as
clear as this definitional scheme might suggest. In fact,
the two terms are often used interchangeably. Both the
Court of Appeals and litigants at times use the terms
interchangeably, and even the Drain Code itself some-
times fails to distinguish between the two concepts. See,
e.g., MCL 280.446 (discussing consolidation of a “drain”
with a “consolidated drain” in chapter 19 of the Drain
Code, entitled “Consolidated Districts”).
When an existing drain needs maintenance or im-
provement, property owners “whose lands shall be
liable to an assessment for benefits of such work” may
petition for the work to be done. MCL 280.191. If
consolidation of drainage districts is sought, property
owners whose lands lie within the districts that would
be consolidated may also petition for consolidation.
MCL 280.441(1). In either situation, after the petition is
submitted, the county drain commissioner “may ap-
point a board of determination composed of 3 disinter-
ested property owners,” MCL 280.72(1) and MCL
280.441(1), to determine, in the case of proposed main-
tenance or improvement, whether the maintenance or
270 493 M
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improvement would be “necessary and conducive to
public health, convenience, or welfare,” MCL 280.72(3),
or in the case of proposed consolidation, the “necessity
of the consolidation,” MCL 280.441(1), and whether the
consolidation would likewise be “conducive to public
health, convenience, or welfare,” MCL 280.441(3).
1
If the “board of determination” (the Board) makes
the requisite findings of necessity and conduciveness,
then, in the case of a consolidation of drainage districts,
an order of consolidation is given to the county drain
commissioner, who files the order and gives the new
consolidated district a name or number. MCL
280.441(3). In the case of drain maintenance or im-
provement, once the Board has made its findings, the
county drain commissioner then files a final order of
determination specifying the precise work to be done.
MCL 280.151. The drain commissioner also then appor-
tions the benefit created by the maintenance and im-
provement among the benefitted properties on a per-
centage basis.
2
MCL 280.151. “All apportionments of
benefits... shall be upon the principle of benefits
derived.” MCL 280.152. The assessment of taxes to pay
for the drain work is then based on these percentage
apportionments. MCL 280.151.
Once this apportionment process is complete, each
person who owns property within the district to be
1
MCL 280.72 deals with the process by which new drains may be
sought and established. But MCL 280.191, which deals with the process
by which maintenance and improvement of drains may be sought and
effected, provides that the MCL 280.72 requirements for a “board of
determination” finding of necessity and conduciveness govern proceed-
ings under MCL 280.191 as well.
2
The commissioner also determines at this time the percentages of the
cost of the project that will be assessed against any “township, city, or
village,” any “highway then under control of the county or district road
commissioners,” and any “state trunk line highway.” MCL 280.151.
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assessed is given notice that a public meeting (i.e., a day
of review) will be held to review the apportionment of
benefits.
3
MCL 280.154(3) and MCL 280.191. Anyone
aggrieved by the apportionment may “appeal therefrom
and...make an application to the probate court...for
the appointment of a board of review....” MCL
280.155. A party aggrieved by any part of “[t]he pro-
ceedings in establishing any drain and levying taxes
therefor” can also seek certiorari review.
4
MCL 280.161.
But
[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...,andforanyerror occurring after
such final order of determination, within 10 days after the
day of review, or if an appeal has been taken within 10 days
after the filing of the report of the board of review. [MCL
280.161.]
No other avenue of review is contemplated by the
statute. “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[.]” Id. But by long-established prece-
dent, discussed more thoroughly later in this opinion,
aggrieved parties nevertheless have been permitted to
3
MCL 280.191 provides that, after the final order of determination has
been filed, and if the apportionment is not “the same as the last recorded
apportionments,” then “the commissioner shall proceed as provided in
[MCL 280.151 to MCL 280.161], including the notice of and the holding
of a day of review.” Otherwise, no day of review is necessary.
4
Though the Drain Code provides for “certiorari,” under MCR
3.302(C), “[a] superintending control order replaces the writ[] of certio-
rari... when directed to a lower court or tribunal.” To maintain
consistency with the statute and historical caselaw, however, “certiorari”
is used throughout this opinion.
272 493 M
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challenge drain proceedings in equity on the sole bases
of fraud or constitutional infirmity.
II. FACTS AND HISTORY
The No. 181-0 drain is a major, established drain
located in Gratiot County. It is fed by dozens of estab-
lished tributary drains, each of which lies within its own
separately established drainage district. Each of these
tributary-drain drainage districts in turn lies within the
boundaries of the separately established No. 181-0
drain drainage district. This appeal involves a challenge
to maintenance and improvements on the No. 181-0
drain and several of its tributaries, along with the
consolidation of all the tributary-drain drainage dis-
tricts and the No. 181-0 drain drainage district into a
single new drainage district.
In March 2009, Dennis Kellogg filed with defendant,
the Gratiot County Drain Commissioner (the Commis-
sioner), a petition signed by five property owners from
North Star Township. The Kellogg petition sought the
consolidation, maintenance, or improvement of the
“#181-0 Drain and all established tributary drains
located and established in the Townships of Northstar,
Washington & Elba, in the County of Gratiot, State of
Michigan.” Prior to receiving the Kellogg petition, the
Commissioner had received two petitions for consolida-
tion, maintenance, or improvement of two drains that
are tributaries to the No. 181-0 drain. A petition for
consolidation, maintenance, or improvement of yet an-
other tributary drain to the No. 181-0 drain was re-
ceived after the Kellogg petition. In response to these
petitions, and with the advice of a consultant hired to
study the situation, the Commissioner determined that
the best course of action was to undertake a major
maintenance and improvement project involving
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No. 181-0 and several of its tributaries and to consoli-
date all the separate drainage districts into a new
No. 181 consolidated drainage district. The Commis-
sioner appointed a Board to hear evidence and deter-
mine the propriety of the proposed actions, and the
Board held a hearing on May 4, 2010.
5
All municipalities located within the No. 181-0 drain
drainage district—including plaintiff Elba Township—
were notified of the date, time, and place of the hearing.
Additionally, a notice was sent to all the individual
property owners and published in the Gratiot County
Herald. It 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
[
6
]
Wolf
& Bear known as the #181-10 Wolf & Bear Drain,as
prayed for in the Petition for consolidating, cleaning out,
relocating, widening, deepening, straightening, tiling, ex-
tending or relocating along a highway, and all established
5
Because the May 4, 2010 hearing was held as part of the May 4, 2010
Board meeting, this opinion refers to the May 4, 2010 proceedings
variously as a “hearing” and a “meeting.”
6
The discrepancy between the notice, which refers to the No. 181-10
drain, and the petition, which referred to the No. 181-0 drain, has never
been satisfactorily explained by the parties. That the drainage system
was ultimately consolidated into a new drain known simply as No. 181
further complicates an already byzantine drain-and-drainage-district
identification scheme. On one hand, some information indicates that the
reference to No. 181-10 in the notice was a clerical error. According to the
Commissioner, “[t]he Notice printed ‘#181-10’ because it was generated
by commonly-used assessing software. The ‘10’ references 2010, which
was the latest year of assessment.” On the other hand, plaintiffs indicate
that No. 181-10 was the original focal point of the project and was a
tributary to the No. 181-0 drain.
274 493 M
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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.
[
7
]
Petition further
shows that...said consolidating, clearing out, relocating,
widening, deepening, 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 Washington Township(s). Dated March 23,
2009...andfortheprotection 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
altered.]
At the meeting, the Board voted 2-1 to approve the
project as necessary and conducive to public health,
convenience, or welfare. Following the meeting, the
Board prepared and filed an “ORDER OF NECES-
SITY” with the Commissioner’s office. The order listed
the “#181-10 drain 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....”
The Commissioner filed a final order of determina-
tion for the project on December 22, 2010.
8
On Janu-
7
That this crucial portion of the notice is not a grammatically
functional sentence makes interpretation of the notice more difficult.
8
Other events transpired between the Board’s filing of its initial order
of necessity and the Commissioner’s filing of his final order of determi-
nation. In September 2010, the Commissioner sent out notifications of
at-large assessments to all municipalities located within the new No. 181
consolidated-drain drainage district. According to the Commissioner,
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ary 5, 2011, the Commissioner mailed to each property
owner in the new No. 181 consolidated-drain drainage
district notice that a day of review would be held
regarding the apportionment of benefits from the
project. The day of review was held on February 14,
2011. No appeal to the probate court for a board of
review was taken, nor was certiorari review sought.
The present lawsuit was commenced after the initial
Board proceedings but before the Commissioner filed
the final order of determination. On November 8, 2010,
Elba Township (Elba) filed a complaint against the
Commissioner in the Gratiot Circuit Court. Elba al-
leged that the consolidation violated the Drain Code
because the petition for the action had been signed by
only 5 property owners, rather than the 50 that Elba
contended the Code required. Elba also asserted that
the notice of the May 4, 2010 Board hearing was defec-
tive and therefore did not comport with due process.
The Commissioner moved for summary disposition.
Then, David Osborn, Mark Crumbaugh, Cloyd Cordray,
and Rita Cordray (collectively, the Osborn plaintiffs)
moved to intervene as of right.
9
These individual prop-
erty owners filed a complaint alleging that the notice
after the notices were mailed, he determined that adding more land to the
new drainage district might be necessary. Thus, in November 2010, he
issued a notice of “RECONVENED BOARD OF DETERMINATION.”
Included in the notice this time around was a list of all 47 drainage
districts 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 recon-
vened hearing would be held on November 11, 2010, to determine the
necessity of adding lands to the No. 181 consolidated-drain drainage
district. The Commissioner sent the notice of the reconvened hearing to
all the municipalities and individual property owners within the drainage
district. The hearing was held and the additional land added by way of a
revised order of necessity.
9
Osborn moved to intervene individually and as trustee of the Osborn
Trust.
276 493 M
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265 [Apr
issued regarding the May 4, 2010 Board meeting failed
to properly inform them that their property was part of
the proposed project and thus the Commissioner had
violated the Drain Code and their due process rights.
The motion to intervene was granted, and the Commis-
sioner then moved for summary disposition of the
Osborn plaintiffs’ claims as well. Elba and the Osborn
plaintiffs (collectively, plaintiffs) filed a cross-motion for
summary disposition in their favor. The trial court
granted summary disposition for the Commissioner on
both the signature and notice issues.
The Court of Appeals affirmed the trial court’s exer-
cise of jurisdiction but reversed on the merits. It held
that a proper reading of the Drain Code required 50
signatures for a consolidation petition and that the
information contained in the notice of the May 4, 2010
hearing was misleading and thus violative of due pro-
cess. Though the Drain Code severely circumscribes the
avenues of relief available to plaintiffs, the Court of
Appeals held that the signature deficiency allowed it to
exercise equitable jurisdiction because the failure to
secure the needed signatures meant that there was an
“entire lack of jurisdiction” on the part of the Commis-
sioner to undertake the project. Elba Twp v Gratiot Co
Drain Comm’r, 294 Mich App 310, 341; 812 NW2d 771
(2011). The Commissioner applied for leave to appeal
here. We granted leave and heard oral argument. Elba
Twp v Gratiot Co Drain Comm’r, 491 Mich 924 (2012).
III. STANDARD OF REVIEW
We review de novo a trial court’s decision to grant or
deny summary disposition. Debano-Griffin v Lake Co,
493 Mich 167, 175; 828 NW2d 634 (2013). Whether due
process has been afforded is a constitutional issue that
is reviewed de novo. People v Wilder, 485 Mich 35, 40;
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780 NW2d 265 (2010). Likewise, whether a court has
subject-matter jurisdiction is a question of law reviewed
de novo. Lapeer Co Clerk v Lapeer Circuit Judges, 465
Mich 559, 566; 640 NW2d 567 (2002). Questions of
statutory interpretation are also reviewed de novo.
Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748
NW2d 221 (2008). Though our review of the issues
presented is thus de novo, we are also mindful of our
previous declaration that, in general, “[w]e...arenot
inclined to reverse [drain] proceedings... absent [a]
showing of very substantial faults.” In re Fitch Drain
No 129, 346 Mich 639, 647; 78 NW2d 600 (1956).
IV. ANALYSIS
A. PETITION SIGNATURES
Plaintiffs first contend that they are entitled to relief
because the Kellogg petition, which served as the basis
for the “board of determination” meeting at which the
maintenance, improvement, and consolidation project
was authorized, was signed by only 5 property owners,
not the 50 that plaintiffs say are mandated by the Drain
Code. There are three sections of the Drain Code
directly relevant to this issue. The first, MCL 280.191,
addresses maintenance and improvement of county
drains. It states, in part:
When a drain or portion thereof...needs cleaning out,
relocating, widening, deepening, straightening, tiling, ex-
tending, or relocating along a highway, or requires struc-
tures or mechanical devices that will properly purify or
improve the flow of the drain or pumping equipment
necessary to assist or relieve the flow of the drain, or needs
supplementing by the construction of 1 or more relief
drains which may consist of new drains or extensions,
enlargements, or connections to existing drains, or needs 1
or more branches added thereto, any 5 or at least 50% of the
278 493 M
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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.... [MCL
280.191 (emphasis added).]
Absent from MCL 280.191 is any reference to “consoli-
dation.” The second section, MCL 280.441, addresses
consolidation of drainage districts. It states, again in
part:
Two or more drainage districts located...inthesame
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....Thepetition shall be signed by at least 50
property owners within the proposed consolidated drainage
district. If in the proposed consolidated drainage district
there are less than 100 property owners, the petition shall
be signed by at least 50% of the property owners in the
proposed consolidated drainage district. [MCL 280.441(1)
(emphasis added).]
The Code thus provides distinct signature require-
ments for drain maintenance and improvement on
one hand and drainage-district consolidation on the
other. But MCL 280.194 muddles this apparent di-
chotomy a bit:
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, or for providing structures or mechanical devices
that will properly purify or improve the flow of the drain or
pumping equipment necessary to assist or relieve the flow
of the drain or needs supplementing by the construction of
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1 or more relief drains which may consist of new drains or
extensions, enlargements or connections to existing drains,
or needs 1 or more branches added thereto, and for any and
all such proceedings, only 1 petition and proceeding shall be
necessary. [Emphasis added.]
The trial court concluded that MCL 280.194 and
MCL 280.441 were irreconcilable, that the former pro-
vision prevailed, and that therefore only five signatures
are required when a petition, like the one at issue, deals
with consolidation as well as some other maintenance
or improvement delineated in MCL 280.194. The Court
of Appeals disagreed. It determined that, when a com-
bined consolidation and maintenance-or-improvement
petition is at issue, the 50-signature requirement re-
mains as to the consolidation.
Both lower courts, in our judgment, erred by reach-
ing the merits of this issue. As previously stated, MCL
280.161, governing the certiorari process, stipulates
that “[i]f no certiorari be brought within the [pre-
scribed time frame], 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[.]” It is undisputed that plaintiffs did
not seek certiorari and that the time for doing so has
expired. The statute contemplates that, once the period
during which certiorari may be sought has passed, no
other avenue of relief is available to challenge drain
proceedings. But this Court has consistently refused “to
accept the proposition that certiorari is an exclusive
remedy under the drain law....”Pere Marquette R Co
v Auditor General, 226 Mich 491, 494; 198 NW 199
(1924). Indeed, a review of our prior jurisprudence
demonstrates that we have historically exercised equi-
table jurisdiction, in spite of the prohibition in MCL
280.161, when a plaintiff alleges a constitutional infir-
280 493 M
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mity
10
in the proceedings surrounding a drainage
project.
11
See, e.g., Blades v Genesee Co Drain Dist No 2,
375 Mich 683, 693; 135 NW2d 420 (1965) (stating that
it was appropriate to exercise equitable jurisdiction
notwithstanding the certiorari process when denial of
“such opportunity is no more nor less than a denial of
constitutionally guaranteed due process”); Fuller v
Cockerill, 257 Mich 35, 39; 239 NW 293 (1932) (permit-
ting a challenge to drain proceedings because those
proceedings violated the constitution); Crandall v
McElheny, 146 Mich 191, 192; 109 NW 261 (1906)
(“Unless there is some constitutional objection to the
application of [the predecessor of MCL 280.161]...,it
prevents the maintenance of this suit.”).
12
10
Neither plaintiffs nor the Commissioner challenge the validity of this
exception to the MCL 280.161 prohibition.
11
We have also, in the past, indicated that exercise of equitable
jurisdiction notwithstanding the Drain Code’s prohibition may be appro-
priate in cases of fraud. See, e.g., Detroit Beach Betterment Committee v
Monroe Co Drain Comm’r, 355 Mich 292, 295; 93 NW2d 922 (1959)
(noting that the complaint contained “no allegations of fraud with
respect to the drain commissioner’s actions and proceedings entitling
plaintiffs to a review in equity”); Hudlemyer v Dickinson, 143 Mich 250,
256; 106 NW 885 (1906) (“If fraud in the proceedings is alleged and
pointed out...such charges may be investigated [in equity].”) (quotation
marks omitted). But because plaintiffs do not allege fraud here, we do not
pass on the validity of this exception, if indeed it even constitutes a
distinct exception to the MCL 280.161 prohibition.
12
Though many of these cases were decided under earlier iterations of
MCL 280.161 (which was not codified as such until 1956), all the earlier
iterations contained language regarding the exclusivity of certiorari
review that was substantially similar to the current statute. The earliest
version of this statute, enacted in 1897, provided that “[i]f no certiorari
be brought within the time herein prescribed, the drain shall be deemed
to have been legally established, and its legality shall not thereafter be
questioned in any suit at law or equity[.]” 1897 PA 254, ch V, § 3. This
language remained unchanged until 1927, when it was amended to its
current form: “If no certiorari be brought within the time herein
prescribed, the drain shall be deemed to have been legally established
and the taxes therefore legally levied, and the legality of said drain and the
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In Clarence Twp v Dickinson, 151 Mich 270; 115 NW
57 (1908), the township in which a drain was to be
extended and several property owners whose lands were
within the assessment district for the proposed drain-
age project brought a suit in equity, contending that the
project amounted to the construction of a new drain.
Under the statute in place at the time, a petition urging
construction of a new drain was to be signed by five
persons liable for an assessment for benefits from the
project. The petition under which the project at issue
was initiated had been signed by only three such
persons. Concluding that equitable relief is available to
plaintiffs challenging drainage proceedings in only ex-
tremely narrow circumstances, we stated that a “lack of
jurisdiction which will warrant relief in equity must
arise from a violation of the Constitution.” Clarence
Twp, 151 Mich at 272. Regarding the petition-signature
requirement, we held:
The Constitution does not require the petition to be
signed by five property owners liable to assessments for
benefits. That requirement is purely statutory. The legis-
lature might have dispensed with it altogether. It therefore
possessed ample constitutional authority to declare how
objections to its non-observance should be made. It had
authority to declare that objections not so raised should be
disregarded. It exercised that authority by the statute
under consideration. That statute is therefore constitu-
tional in its application to this case and it prevents com-
plainants maintaining this suit. [Id. at 273.]
We relied heavily on Clarence Twp in Stellwagen v
Dingman, 229 Mich 159, 161-162; 200 NW 983 (1924),
in which we held that the alleged failure of a petition to
“correctly stat[e] the purpose for which the cleaning out
taxes therefor shall not thereafter be questioned in any suit at law or
equity[.]” 1927 PA 331, ch VI, § 11 (emphasis added).
282 493 M
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of the drain was needed” did not rise to the level of a
constitutional violation allowing the exercise of equi-
table jurisdiction.
The slightly earlier case of Strack v Miller, 134 Mich
311; 96 NW 452 (1903), is to the same effect. In Strack,
the plaintiff sought to enjoin the construction of a new
drain on the grounds of insufficient petition signatures.
The relevant statute, it was contended, required that 5
of the 10 signatories to the petition requesting the work
own land that would be liable for an assessment of
benefits, but only 4 of the 10 signatories to the petition
at issue fit that description. We held that such a claim
was insufficient “to call for the interposition of a court
of equity.” Id. at 313. Rather, the plaintiffs’ proper
course would have been to seek certiorari review under
the statute. The certiorari statute, we said, offers
an opportunity to have a speedy hearing upon any question
of jurisdiction or any question of irregularity. If the com-
plainant had shown to the probate court that the applica-
tion [to construct the drain] was fatally defective, the
proceeding could have then been ended. The same result
could have been reached before a board of review. This
could have been accomplished without so much delay and
expense as is involved in a chancery proceeding. [Id.]
We are presented here with a situation virtually
identical to Clarence Twp and Strack.PerStrack,
plaintiffs could easily have brought their signature
complaint by way of certiorari review, at which time,
had they been able to show the court that the petition
“was fatally defective, the proceeding could have then
been ended” and their grievance would have been
satisfactorily addressed. Id. Their claim may not now be
reviewed in equity because whether a consolidation
petition must be signed by 5 property owners under
MCL 280.191 and MCL 280.194 or by 50 pursuant to
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MCL 280.441 is, in the words of Clarence Twp,a
“purely statutory” question regarding a “purely statu-
tory” requirement. Clarence Twp, 151 Mich at 273.
Upon concluding that MCL 280.441 was applicable
here and thus that 50 signatures were required for the
consolidation petition, the Court of Appeals, apparently
overlooking our decisions in Clarence Twp, Strack, and
Stellwagen, went on to determine whether the exercise
of equitable jurisdiction was appropriate. “Without the
requisite number of signatures attached to the...peti-
tion,” the Court of Appeals stated, “the Drain Commis-
sioner had no authority or jurisdiction to act, and the
proceedings establishing the No. 181 Consolidated
Drainage District were void.” Elba Twp, 294 Mich App
at 341. Thus, the Court of Appeals concluded the trial
court had properly exercised equitable jurisdiction over
the matter. Id. In so concluding, the Court of Appeals
neglected our holding in Clarence Twp, reaffirmed in
Fuller, that “[t]he lack of jurisdiction which will war-
rant relief in equity must arise from a violation of the
Constitution.” Fuller, 257 Mich at 39 (citation and
quotation marks omitted). Even if there was a signature
error, such error did not result in a lack of jurisdiction
arising out of a violation of the Constitution.
It simply cannot be that every failure by the Com-
missioner or others to comply with the detailed require-
ments of the Drain Code deprives the Commissioner of
jurisdiction in such a way as to permit invocation of the
equitable jurisdiction of the judiciary. If this were the
case, the exclusivity of certiorari review as set forth in
MCL 280.161 would not only be restricted by our
caselaw, but it would be of little general force. Clarence
Twp, Strack, and Stellwagen make clear that an error
regarding the number of petition signatures does not
implicate the Constitution. Though in some sense a
284 493 M
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265 [Apr
public official lacks jurisdiction every time he acts in a
way contrary to statutes prescribing the procedures he
must follow in carrying out his authority, “[t]here is a
difference between a want of jurisdiction and a mistake
in jurisdiction, or an error in the exercise of jurisdic-
tion.” Altermatt v Dillman, 269 Mich 177, 182; 256 NW
846 (1934). A failure to follow each and every require-
ment of the Drain Code does not warrant the exercise of
equitable jurisdiction unless the failure is so egregious
that it implicates constitutional concerns, which will
almost always involve the deprivation of property with-
out due process of law.
13
See id. at 186 (concluding, after
discussing several drain cases in which equitable juris-
diction had been exercised, that in all the cases, the
“taking of property without due process of law” was at
issue).
At this point, the objection might be raised that, as
long as property rights are imperiled by the action,
every failure to follow the letter of the Drain Code
amounts to a constitutional violation because it consti-
tutes a denial of due process of law. But it must be
remembered that the Drain Code, in fact, provides a
remedy for failure to comply with its technical
requirements-- certiorari review. The availability of this
remedy precludes a finding in circumstances such as a
failure to meet a statutory signature requirement that
deprivation of due process has occurred. Cf. Patrick v
Shiawassee Co Drain Comm’r, 342 Mich 257, 263; 69
NW2d 727 (1955) (concluding that when the drain
commissioner extended a project beyond the scope
13
Drainage-project proceedings like the instant ones do not result in a
deprivation of property implicating due process rights until the property
owner has actually been assessed for the project. Thus the rule, discussed
in the next subsection of this opinion, see part IV(B), that due process
does not even require notice of such proceedings until the assessment
stage.
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permitted by the order of determination, exercise of
equitable jurisdiction was appropriate because there
was no adequate opportunity to request certiorari re-
view of the issue).
In this case, the Court of Appeals reasoned that the
exercise of equitable jurisdiction was appropriate in part
because the signature error alleged here was not ame-
nable to correction on certiorari review. We disagree. If
there was an error, it was in fact easily correctable
through certiorari review. MCL 280.161 provides that if
“material defect be found in the proceedings for establish-
ing the drain, such proceedings shall be set aside.” Surely
this would have been an appropriate and adequate remedy
here. Indeed, this is the very relief sought by plaintiffs. As
we stated in Strack, certiorari is the exclusive avenue of
review for such a claim.
14
See Strack, 134 Mich at 313.
B. NOTICE
Plaintiffs also contend that the notice issued regard-
ing the May 4, 2010 Board meeting was defective and
14
In determining that the exercise of equitable jurisdiction was appropri-
ate here, the Court of Appeals relied in part on our decision in Grand Rapids
&IRCovRound, 220 Mich 475; 190 NW 248 (1922). In Round, we said
that a drain petition failed to confer jurisdiction because it did not allege, as
required by the statute in place at the time, that the signatures on the
petition included at least
1
/3 of the property owners whose lands were
traversed by the drain in question. But Round was brought as a petition for
certiorari; it was not an attempt to invoke equity. Contrary to the Court of
Appeals’ analysis, then, Round actually underscores that such errors are
properly addressed through certiorari review. Additionally, Round did not
assert that the error at issue amounted to a lack of jurisdiction that arose out
of a violation of the Constitution and thus does not imply that an exercise of
equitable jurisdiction would have been appropriate. Indeed, this require-
ment from Clarence Twp and Fuller, coupled with the reaffirmation of the
Strack and Clarence Twp principle in Stellwagen-- which was decided after
Round-- demonstrates that an error like that found in Round is insufficient
to permit the intervention of equity.
286 493 M
ICH
265 [Apr
amounted to a violation of their constitutional right to
due process. Their primary complaint regarding the
notice is that some of the property that would be
affected by the proposed project lay outside the town-
ships listed in the notice.
15
This, plaintiffs argue, led
some property owners who stood to be assessed for the
project but whose property did not lie within the listed
townships to conclude that, despite the opening lan-
guage of the notice, which stated that it was being sent
to persons “liable for an assessment,” their interests
would not be affected by the proceedings at the May 4,
2010 Board meeting. Thus, they argue, notice to these
persons regarding the meeting was ineffective and their
constitutional right to due process was violated.
Unlike the signature issue, true questions of due
process may be heard in equity because they implicate
the constitutional exception to MCL 280.161. See
Blades, 375 Mich at 693-694 (concluding that an argu-
ment that an assessment was arbitrarily and wrongly
imposed was a due-process claim that could be heard in
equity); Altermatt, 269 Mich at 186 (summarizing rel-
evant caselaw and concluding that drain proceedings
that amount to “taking of property without due process
of law” confer jurisdiction on courts of equity); Fuller,
257 Mich at 38-39 (concluding that an exercise of
equitable jurisdiction was appropriate when the defen-
dants were “wholly without authority” to construct a
drain because “the ultimate result of assessment of
benefits and the collection from plaintiffs of the drain
tax would be to deprive them of their property without
due process of any sort”).
To comport with due process, notice, when required,
must be “ ‘reasonably calculated, under all the circum-
15
The notice enumerated only those townships through which the
No. 181-0 drain actually runs.
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stances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present
their objections.’ ” Sidun v Wayne Co Treasurer, 481
Mich 503, 509; 751 NW2d 453 (2008), quoting Mullane
v Central Hanover Bank & Trust Co, 339 US 306, 314;
70 S Ct 652; 94 L Ed 865 (1950). To be sure, the notice
sent to plaintiffs in this case was no model of clarity. But
before analyzing the reasonableness of the notice, we
must ask the threshold question whether plaintiffs
were constitutionally entitled to any notice of the
May 4, 2010 Board meeting. We conclude that they were
not.
Under Michigan’s Constitution, “[n]o person shall...
be deprived of life, liberty or property, without due process
of law.” Const 1963, art 1, § 17. The United States Con-
stitution similarly provides that no state shall “deprive
any person of life, liberty, or property, without due process
of law[.]” US Const, Am XIV. The May 4, 2010 Board
meeting was held to determine the “necessity” of the
proposed drainage project. See MCL 280.72(3) and MCL
280.441(1). Simply put, the meeting did not pertain to
deprivation of life, liberty, or property, and thus the due
process right to notice was not implicated.
16
The meeting
dealt only with whether the drainage project was nec-
essary under the terms of the Drain Code and thus
whether it should proceed. As such, due process did not
require that any notice be given.
Chicago, M, St P,&PRCovRisty, 276 US 567; 48 S
Ct 396; 72 L Ed 703 (1928), bears a striking resemblance
to the present case. In Risty, the plaintiffs, receivers of a
16
Indeed, at the May 4, 2010 meeting, the Board was performing an
essentially legislative function-- determining whether to authorize a
public-works project. See Blankenburg v City of Northfield, 462 NW2d
417, 419 (Minn App, 1990) (holding that a hearing on the feasibility of
extension of sewer and water lines constitutes “a legislative function”).
288 493 M
ICH
265 [Apr
railway company, sought to enjoin the apportionment and
assessment of benefits against their land for the mainte-
nance of a drain constructed under South Dakota’s agri-
cultural drainage statutes. South Dakota law at the time,
like our own Code, prescribed a bifurcated system under
which an initial determination as to whether the drainage
project would be “conducive to the public health, conve-
nience, or welfare, or necessary or practical for draining
agricultural lands” was followed by separate proceedings
regarding the apportionment of benefits and assessment
of costs against property owners. Id. at 574 (citation and
quotation marks omitted). The plaintiffs challenged the
constitutionality of the proceedings “on the ground that
the notice of the hearing on the petition for the establish-
ment of the drainage project fell short of constitutional
requirements,” asserting that, because the notice of the
hearing on necessity described only the route to be taken
by the proposed drain “and the tract of country likely to be
affected thereby in general terms,” it was insufficient
“notice to any land owner other than those through whose
land the drainage ditch is to be constructed.” Id. at 573
(quotation marks omitted). The United States Supreme
Court rejected the argument, holding:
Due process of law does not require notice of a proceed-
ing to determine merely whether an improvement shall be
constructed without at the same time establishing the
boundaries of the assessment district. It is enough if land
owners who may be assessed are later afforded a hearing
upon the assessment itself. [Id. at 574.]
[
17
]
17
Risty implies that due process may require notice of the establish-
ment of an “assessment district.” An “assessment district” of the type
referred to in Risty should not be confused with the establishment (or, as
here, consolidation) of a “drainage district” under our Drain Code. Risty
explains that inclusion of lands within an “assessment district” as
contemplated in that case “depended wholly upon [the lands’] being
benefited by the proposed improvements” and therefore being assessed to
fund the project. Risty, 276 US at 575. By contrast, there is no indication
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Citing Risty, the United States Supreme Court held in
Utley v St Petersburg, 292 US 106, 109; 54 S Ct 593; 78
L Ed 1155 (1934), that “[t]here is no constitutional
privilege to be heard in opposition at the launching of a
project which may end in an assessment. It is enough
that a hearing is permitted before the imposition of the
assessment as a charge upon the land, or in proceedings
for collection afterwards.”
18
(Citations omitted.)
in the Drain Code that inclusion within a drainage district means that a
specific parcel of land will certainly be benefited by and assessed for the
costs of a given project. To the contrary, “[a]ll apportionments of
benefits... shall be upon the principle of benefits derived.” MCL
280.152. As Risty itself said, “It is enough if land owners who may be
assessed are later afforded a hearing upon the assessment itself.” Risty,
276 US at 574.
This understanding of Risty is supported by prior precedent of both
this Court and the United States Supreme Court. In Voigt v Detroit, 184
US 115; 22 S Ct 337; 46 L Ed 459 (1902), the plaintiff, a Michigander
challenging an assessment of taxes against his property to pay for the
construction of a road, contended that the Fourteenth Amendment had
been violated because he was not given notice of, or an opportunity to
contest, the setting of the boundaries of the district within which
property owners would be assessed to pay for the road because of the
benefit they received from the project. He was, however, given the
opportunity to contest the individual assessment ultimately levied
against his property. This Court affirmed the trial court’s dismissal of the
complaint. The United States Supreme Court in turn affirmed our
decision, holding, with regard to the Michigan statute that created this
system of assessment, that “[i]t would be difficult to find any provision
fairer than this in purpose and which so essentially satisfies every
requirement of due process of law.” Id. at 122.
18
Goodrich v Detroit, 184 US 432; 22 S Ct 397; 46 L Ed 627 (1902), is
to the same effect. There, the plaintiffs were ultimately assessed to pay
for part of a road project in Detroit. They asserted that their right to due
process had been violated where the statute at issue provided that,
regarding the initial proceedings to determine whether the project would
go forward, notice only had to be given to those property owners whose
property would be condemned in order to build the street. Those who
might be assessed were not given notice. This Court affirmed the trial
court’s dismissal of the plaintiffs’ claim, and the United States Supreme
Court affirmed, reasoning:
290 493 M
ICH
265 [Apr
Our own precedents are in accord with this position.
The plaintiff in Roberts v Smith, 115 Mich 5; 72 NW
1091 (1897), owned property subject to assessment for a
drainage project. He contended that the drain law in
place at the time violated constitutional due process
because it did not afford him an opportunity “to contest
the public necessity for the drain....” Id. at 8. We
rejected the argument, noting that the drain law “pro-
vide[d] for notice of the assessment, and an opportunity
to be heard thereon.” Id. We later reaffirmed this
principle in Hinkley v Bishop, 152 Mich 256, 259-260;
114 NW 676 (1908), in which we stated that “persons
liable to be assessed for benefits” have “no constitu-
tional right to be heard upon the necessity for the
drain,” citing Roberts. At the same time, we granted
relief to some of the Hinkley plaintiffs because they had
not been properly noticed regarding the assessment
proceedings. Id. at 262, 264-266.
Therefore, plaintiffs were not constitutionally en-
titled to notice regarding the hearing on the necessity
and conduciveness of the drainage project.
19
They were
It might be argued upon the same lines [as those advanced by
the plaintiffs] that, whenever the city contemplated a public
improvement of any description, personal notice should be given to
the taxpayers, since all such are interested in such improvements
and are liable to have their taxes increased thereby. It might easily
happen that a whole district or ward of a particular city would be
incidentally benefited by a proposed improvement, as, for instance,
a public school, yet to require personal notice to be given to all the
taxpayers of such ward would be an intolerable burden. Hence it
has been held by this court that it is only those whose property is
proposed to be taken for a public improvement that due process of
law requires shall have prior notice. [Id. at 438.]
19
Plaintiffs were, however, statutorily entitled to notice of the “board
of determination’s” hearing on necessity and conduciveness. But the
notice they received regarding that hearing met the statutory require-
ments. MCL 280.72(2), applicable via the terms of MCL 280.191, re-
quires, regarding individual property owners, that “[t]he drain commis-
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constitutionally entitled to notice regarding assess-
ment. That is, under the present circumstances, they
were entitled to notice that the day of review would be
held. They received such notice. Plaintiffs’ complaints
regarding the notice issued for the May 4, 2010 hearing,
even assuming they had merit, were remedied in the
notice issued for the February 14, 2011 day of review.
For these reasons, plaintiffs’ claim of inadequate notice
fails.
V. CONCLUSION
The lower courts improperly exercised equitable ju-
risdiction over the signature-requirement issue given
that the matter did not arise from a violation of the
Constitution. The lack of jurisdiction that will warrant
relief in equity must arise from a violation of the
Constitution. Because the exercise of equitable jurisdic-
tion over the signature-requirement issue was im-
proper, we do not reach the issue whether the Drain
Code requires 5 or 50 signatures for a drainage-district
consolidation petition. Finally, though it was within the
lower courts’ equitable jurisdiction to address the no-
tice issue, we conclude that constitutional due process
did not entitle plaintiffs to receive notice of the “board
of determination” hearing. Though constitutional due
process entitles affected property owners to notice of
sioner...send notice, by first class mail, of the time, date, and place of
the meeting, to each person whose name appears on the last city, village,
or township tax assessment roll as owning land within the special
assessment district, at the address shown on the roll.” Regarding
townships, notice “shall be served...ontheclerk of each township,...
personally or by registered mail, at least 10 days before the meeting.”
MCL 280.72(2). There is no indication that these provisions were not
complied with here. Further, for reasons already explained, a purely
statutory defect would not amount to a constitutional violation. The
proper remedy for any error in this regard would have been certiorari
review.
292 493 M
ICH
265 [Apr
proceedings concerning assessments for the costs of a
drainage project, there is no parallel right to notice of
proceedings to determine whether the project will be
undertaken in the first place. For these reasons, we
reverse the judgment of the Court of Appeals and
reinstate the trial court’s order granting summary
disposition in favor of the Commissioner.
Y
OUNG
, C.J., and C
AVANAGH
,M
ARY
B
ETH
K
ELLY
,Z
AHRA
,
and M
C
C
ORMACK
, JJ., concurred with M
ARKMAN
,J.
V
IVIANO
, J., took no part in the decision of this case.
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McPHERSON v McPHERSON
Docket No. 144666. Argued January 10, 2013. Decided April 11, 2013.
Ian McPherson brought an action in the Oakland Circuit Court
against Christopher McPherson, Progressive Michigan Insurance
Company, and others, seeking payment of personal protection
insurance benefits under the no-fault act, MCL 500.3101 et seq.
Plaintiff developed a neurological disorder as a result of injuries
sustained in a 2007 motor vehicle accident while he was a
passenger in a vehicle driven by Christopher McPherson. Subse-
quently, in 2008, while driving a motorcycle, he experienced a
seizure consistent with that disorder, lost control of the motor-
cycle, crashed into a parked car, and sustained a severe spinal cord
injury that left him quadriplegic. Plaintiff claimed entitlement to
no-fault benefits for the spinal cord injury, asserting that the 2008
spinal cord injury arose out of the 2007 accident for purposes of
MCL 500.3105(1). Progressive moved for partial summary dispo-
sition. The court, Rae Lee Chabot, J., denied the motion. On leave
granted, the Court of Appeals, M
ETER
and G
LEICHER
, JJ. (K. F.
K
ELLY
,P.J., dissenting), affirmed in an unpublished opinion per
curiam, issued January 10, 2012 (Docket No. 299618). Progressive
applied for leave to appeal. The Supreme Court ordered and heard
oral argument on whether to grant the application or take other
peremptory action. 493 Mich 853 (2012).
In a memorandum opinion signed by Chief Justice Y
OUNG
and
Justices M
ARKMAN
,M
ARY
B
ETH
K
ELLY
,Z
AHRA
, and M
C
C
ORMACK
, the
Supreme Court held:
Under MCL 500.3105(1), a provider of personal protection
insurance benefits is liable to pay benefits for accidental bodily
injury arising out of the ownership, operation, maintenance, or use
of a motor vehicle as a motor vehicle. An injury arises out of the
use of a motor vehicle as a motor vehicle when the causal
connection between the injury and the use of a motor vehicle as a
motor vehicle is more than incidental, fortuitous, or “but for.”
Given that plaintiff’s spinal cord was injured in the 2008 motor-
cycle crash, which was caused by his seizure, which was caused by
his neurological disorder, which was caused by his use of a motor
vehicle as a motor vehicle in 2007, the spinal cord injury was
294 493 M
ICH
294 [Apr
simply too remote and too attenuated from the earlier use of a
motor vehicle to permit a finding that the causal connection
between the 2008 injury and the 2007 accident was more than
incidental, fortuitous, or “but for.” The facts alleged by plaintiff
were insufficient to support a finding that the first injury caused
the second injury in any direct way. Absent the intervening
motorcycle accident, plaintiff’s spinal cord injury would not have
occurred as a direct result of the neurological disorder. The trial
court erred by failing to grant summary disposition in favor of
Progressive, and the Court of Appeals erred by affirming that
decision.
Court of Appeals’ judgment reversed; case remanded for entry
of summary disposition in favor of Progressive.
Justice C
AVANAGH
, dissenting, would not have granted summary
disposition in favor of Progressive. Because it is undisputed that
Progressive is responsible for first party no-fault benefits related
to the 2007 motor vehicle accident and plaintiff’s physician attrib-
uted the symptoms that plaintiff experienced in 2008 to the
disorder that arose out of the 2007 motor vehicle accident,
plaintiff’s fall during his 2008 seizure was not an intervening
cause. Rather, it was an inextricable aspect of his seizure disorder,
and any injuries sustained during the loss of consciousness and fall
in 2008 arose out of the 2007 motor vehicle accident that caused
the seizure disorder.
Justice V
IVIANO
took no part in the decision of this case.
Merrill H. Gordon for Ian McPherson.
Garan Lucow Miller, P.C. (by James L. Borin, Daniel
Saylor, and Robert D. Goldstein), for Progressive Michi-
gan Insurance Company.
M
EMORANDUM
O
PINION
. Plaintiff developed a neuro-
logical disorder as a result of injuries sustained in a
2007 motor vehicle accident. Subsequently, in 2008,
while driving a motorcycle, he experienced a seizure
consistent with that disorder, lost control of the motor-
cycle, crashed into a parked car, and sustained a severe
spinal cord injury that left him quadriplegic. Plaintiff
did not assert that he was entitled to no-fault benefits
2013] M
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C
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295
O
PINION OF THE
C
OURT
for the spinal cord injury as a result of the 2008 crash.
1
Rather, he claimed that he was entitled to no-fault
benefits for the spinal cord injury as a result of the 2007
accident, asserting that the spinal cord injury “ar[ose]
out of” the 2007 accident for purposes of MCL
500.3105(1). Defendant Progressive Michigan Insur-
ance Company moved unsuccessfully for partial sum-
mary disposition in the trial court, and the Court of
Appeals affirmed on leave granted.
2
We ordered and
heard oral argument on whether to grant Progressive’s
application for leave to appeal or take other peremptory
action.
3
Given that there is no dispute regarding the material
facts and that the parties agree that the 2007 accident
involved the use of a motor vehicle as a motor vehicle
and that plaintiff is entitled to personal protection
insurance (PIP) benefits from Progessive for all injuries
“arising out of” that accident, including the neurologi-
cal disorder, the only question here is whether the
spinal cord injury plaintiff suffered in the 2008 crash
“ar[ose] out of” the 2007 accident for purposes of MCL
500.3105(1).
Pursuant to MCL 500.3105(1), a PIP provider is
liable “to pay benefits for accidental bodily injury
1
Plaintiff apparently anticipated that he could not recover no-fault
benefits from the 2008 crash because a motorcycle is not a “motor
vehicle” for purposes of the no-fault act, MCL 500.3101(2)(e), and none of
the exceptions that allow recovery in an accident involving a parked
motor vehicle seem applicable, see MCL 500.3106.
2
McPherson v McPherson, unpublished opinion per curiam of the
Court of Appeals, issued January 10, 2012 (Docket No. 299618). Progres-
sive argued below that plaintiff could not recover first-party no-fault
benefits because he had no insurance for his motorcycle. This was the
basis for a Court of Appeals dissent. Progressive now concedes that there
was, in fact, insurance for the motorcycle and has abandoned this
argument.
3
McPherson v McPherson, 493 Mich 853 (2012).
296 493 M
ICH
294 [Apr
O
PINION OF THE
C
OURT
arising out of the ownership, operation, maintenance or
use of a motor vehicle as a motor vehicle....” In
Griffith v State Farm Mut Auto Ins Co, 472 Mich 521,
531 (2005), this Court explained this causal require-
ment:
[A]n insurer is liable to pay benefits for accidental bodily
injury only if those injuries “aris[e] out of” or are caused by
“the ownership, operation, maintenance or use of a motor
vehicle....” It is not any bodily injury that triggers an
insurer’s liability under the no-fault act. Rather, it is only
those injuries that are caused by the insured’s use of a
motor vehicle.
Regarding the degree of causation between the injury
and the use of the motor vehicle that must be shown, this
Court has established that an injury arises out of the use
of a motor vehicle as a motor vehicle when “the causal
connection between the injury and the use of a motor
vehicle as a motor vehicle is more than incidental,
fortuitous, or ‘but for.’ ” Thornton v Allstate Ins Co, 425
Mich 643, 659 (1986).
In this case, the causal connection between the 2008
spinal cord injury and the 2007 accident is insufficient
to satisfy the “arising out of” requirement of MCL
500.3105(1).
4
Plaintiff did not injure his spinal cord
while using the vehicle in 2007. Rather, he injured it in
the 2008 motorcycle crash, which was caused by his
seizure, which was caused by his neurological disorder,
which was caused by his use of a motor vehicle as a
4
Plaintiff’s focus on the “causal genesis” of the injury is particularly
misplaced. The question under Thornton is not whether the use of a
motor vehicle constitutes the “causal genesis” of an injury, but whether
the causal connection between the injury and the use of a motor vehicle
as a motor vehicle is more than incidental, fortuitous, or “but for.” This
not only requires that the motor vehicle be used “as a motor vehicle” in
the incident that gives rise to the injury, but also that the accidental
bodily injury “aris[e] out of” that vehicular use.
2013] M
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P
HERSON
297
O
PINION OF THE
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OURT
motor vehicle in 2007. Under these circumstances, we
believe that the 2008 injury is simply too remote and too
attenuated from the earlier use of a motor vehicle to
permit a finding that the causal connection between the
2008 injury and the 2007 accident “is more than inci-
dental, fortuitous, or ‘but for.’ ” Thornton, 425 Mich at
659.
5
We reject plaintiff’s argument that Scott v State Farm
Mut Auto Ins Co, 278 Mich App 578; 751 NW2d 51
(2008), is relevant to this case. The Court of Appeals
held in Scott that summary disposition was premature
because the plaintiff had raised a genuine issue of
material fact whether her hyperlipidemia occurred as a
direct result of an injury she had received in an auto-
mobile accident or was attributable to other factors.
That is, the issue was whether the evidence was suffi-
cient to support a finding that the first injury caused
the second injury in a direct way. In this case, plaintiff
claims as fact that his spinal cord injury occurred as a
result of the neurological disorder from the first acci-
dent in combination with the intervening motorcycle
accident. The facts alleged by plaintiff are insufficient
to support a finding that the first injury caused the
second injury in any direct way. Rather, the facts alleged
by plaintiff only support a finding that the first injury
5
The dissent erroneously focuses on the existence of a causal connec-
tion between the “seizure” and the “fall,” rather than on the causal
connection between the 2008 spinal cord injury and the 2007 accident.
Post at 302 (“Because plaintiff’s fall was an inextricable aspect of his
seizure, I believe that plaintiff can satisfy MCL 500.3105(1).”). Although
we agree with the dissent that for purposes of this appeal it is assumed as
fact that plaintiff’s second seizure and resultant fall came about as a
result of the neurological disorder suffered in the first accident, it does
not follow, as the dissent concludes, that “the 2008 injuries were an
inextricable result of [plaintiff’s] seizure disorder” as well. Post at 302
(emphasis added). Indeed, had plaintiff been in bed or on the couch when
he had the seizure, the “inextricable” injury would not have occurred.
298 493 M
ICH
294 [Apr
O
PINION OF THE
C
OURT
directly caused the second accident, which in turn
caused the second injury. Thus, the second injury al-
leged by plaintiff is too attenuated from the first acci-
dent to permit a finding that the second injury was
directly caused by the first accident. Though we are
troubled by Scott’s use of a causal-connection standard
this Court has never recognized—that “[a]lmost any
causal connection will do,” id. at 586—it is nonetheless
clearly distinguishable from this case because plaintiff
admits that, absent the intervening motorcycle acci-
dent, his spinal cord injury would not have occurred as
a direct result of the neurological disorder.
Because plaintiff’s spinal cord injury had only this
limited causal connection to the use of a motor vehicle
in 2007, the injury did not arise out of the use of a motor
vehicle for purposes of MCL 500.3105(1). Accordingly,
the trial court erred by failing to grant Progressive
summary disposition on that basis, and the Court of
Appeals erred by affirming that decision. In lieu of
granting Progressive’s application for leave to appeal,
we reverse the judgment of the Court of Appeals and
remand for entry of summary disposition in favor of
Progressive.
Y
OUNG
, C.J., and M
ARKMAN
,M
ARY
B
ETH
K
ELLY
,Z
AHRA
,
and M
C
C
ORMACK
, JJ., concurred.
C
AVANAGH
,J.(dissenting). I respectfully dissent be-
cause I believe that plaintiff is able to satisfy the
requirement in MCL 500.3105(1) that his 2008 injuries
“ar[ose] out of” his 2007 motor vehicle accident.
As the majority explains, there is no dispute that
plaintiff’s 2007 accident involved the use of a motor
vehicle as a motor vehicle and that Progressive Michi-
gan Insurance Company is statutorily obligated under
2013] M
C
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HERSON V
M
C
P
HERSON
299
D
ISSENTING
O
PINION BY
C
AVANAGH
,J.
MCL 500.3105(1) to provide personal protection insur-
ance (PIP) benefits for all injuries “arising out of” that
accident, including plaintiff’s seizure disorder.
This Court has explained that coverage under MCL
500.3105(1) is available “only where the causal connec-
tion between the injury and the use of a motor vehicle
as a motor vehicle is more than incidental, fortuitous, or
‘but for.’ ” Thornton v Allstate Ins Co, 425 Mich 643,
659; 391 NW2d 320 (1986). Thus, the motor vehicle
must be the “instrumentality” of the injury. Id. at 660.
Thornton’s application is relatively straightforward
when faced with an acute injury. For example, if an
insured suffers a broken arm while involved in a motor
vehicle accident, it is clear that the motor vehicle was
the instrumentality of the broken arm because that
injury occurred at the moment of the accident. Accord-
ingly, the causal connection between the broken arm
and the use of a motor vehicle as a motor vehicle is more
than incidental, fortuitous, or “but for.”
Although slightly more difficult, applying Thornton’s
logic to some chronic injuries is also fairly straightfor-
ward. For example, if an insured suffered a kidney
injury in a motor vehicle accident and, after a period of
time, required a kidney transplant because of the con-
tinuing deterioration of the kidney, it is clear that the
need for the transplant, although separated from the
accident by time, would nevertheless constitute a pro-
gression of the injury that occurred in the accident.
Accordingly, the causal connection between the need for
the kidney transplant and the use of the motor vehicle
as a motor vehicle would be more than incidental,
fortuitous, or “but for.”
This case, however, presents a difficult issue because
of the chronic, yet intermittent, nature of the injury
that plaintiff suffered in the 2007 motor vehicle acci-
300 493 M
ICH
294 [Apr
D
ISSENTING
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PINION BY
C
AVANAGH
,J.
dent. Accordingly, in order to properly apply Thornton
and MCL 500.3105(1), it is necessary to understand the
nature of a seizure disorder.
According to his physician, shortly after the 2007 acci-
dent plaintiff suffered a grand mal seizure. The physician
testified that “posttraumatic seizure can happen at any
time. You can have head trauma today, you can have a
seizure from posttrauma [sic] two days later, you can have
it a year later, you can have it the rest of your life.”
According to the Mayo Clinic, grand mal seizures have two
phases—tonic and clonic—that exhibit different symp-
toms. In the tonic phase, “[l]oss of consciousness occurs,
and the muscles suddenly contract and cause the person to
fall down.” Mayo Clinic, Grand Mal Seizure
<http://www.mayoclinic.com/health/grand-mal-seizure/
DS00222/DSECTION’symptoms> (accessed April 2,
2013) (emphasis added). In the clonic phase, “[t]he
muscles go into rhythmic contractions, alternately
flexing and relaxing. Convulsions usually last for less
than two minutes.” Id.
Thus, a person with a seizure disorder may go long
periods without exhibiting any signs of the disorder.
However, even during those nonsymptomatic periods,
the person nevertheless has a seizure disorder, and in
plaintiff’s case, the seizure disorder arose out of the use
of a motor vehicle as a motor vehicle. Unlike an insured
with a kidney injury whose condition consistently and
predictably worsens over time, plaintiff’s injury has
resulted in sudden, unpredictable symptomatic epi-
sodes. And during those sudden symptomatic episodes,
plaintiff’s seizure disorder causes him to unexpectedly
lose consciousness and muscle control and fall down.
As the majority’s analysis demonstrates, the inter-
mittent nature of plaintiff’s seizure disorder lends itself
to the conclusion that any subsequent injury is caused
2013] M
C
P
HERSON V
M
C
P
HERSON
301
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PINION BY
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AVANAGH
,J.
by an intervening accident rather than the seizure
disorder itself. Specifically, the majority focuses on the
activity that plaintiff was engaged in when he suffered
the 2008 seizure and concludes that the motorcycle
accident was an intervening event that caused plain-
tiff’s 2008 injury. However, once the nature of a seizure
disorder is properly understood, I believe the majority’s
analysis is incorrect. Plaintiff’s fall during his 2008
seizure was not an intervening cause; rather, it was an
inextricable aspect of his seizure disorder, and any
injuries sustained during the loss of consciousness and
fall arose out of the motor vehicle accident that caused
the seizure disorder. Simply put, loss of consciousness
and falling down is part of a seizure. While I agree that
the severity of the person’s injuries may be exacerbated
depending on what the person is doing at the time of a
seizure, that does not change the fact that a seizure
disorder caused the person to unexpectedly fall and
suffer an injury. Stated differently, plaintiff’s seizure
disorder cannot be separated from his 2008 fall and
attendant injuries in any meaningful way. Because
plaintiff’s fall was an inextricable aspect of his seizure,
I believe that plaintiff can satisfy MCL 500.3105(1).
In summary, I think that the 2007 motor vehicle
accident bore more than an incidental, fortuitous, or
“but for” connection to plaintiff’s 2008 injuries because
plaintiff’s 2008 injuries are directly related to the
seizure disorder, i.e., the 2008 injuries were an inextri-
cable result of his seizure disorder. Accordingly, I dis-
sent from the majority’s decision to grant summary
disposition in favor of Progressive.
V
IVIANO
, J., took no part in the decision of this case.
302 493 M
ICH
294
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PINION BY
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AVANAGH
,J.
WHITMAN v CITY OF BURTON
Docket No. 143475. Argued November 15, 2012 (Calendar No. 5). Decided
May 1, 2013.
Bruce Whitman brought an action in the Genesee Circuit Court
against the city of Burton and the mayor of the city, Charles
Smiley, alleging that defendants had violated the Whistleblowers’
Protection Act (WPA), MCL 15.361 et seq., when the mayor
declined to reappoint plaintiff as police chief for the city in
November 2007. Plaintiff alleged that he was not reappointed
because, in early 2004, he had threatened to pursue criminal
charges against the mayor if the city did not comply with a city
ordinance and pay plaintiff for the unused sick, personal, and
vacation leave time he had accumulated in 2003. Defendants
maintained that plaintiff, along with other city administrators,
had agreed to forgo any payout for accumulated leave in order to
avoid a severe budgetary shortfall and that plaintiff was not
reappointed because the mayor was dissatisfied with many aspects
of plaintiff’s performance as chief of police. A jury returned a
verdict in favor of plaintiff. The court, Geoffrey L. Neithercut, J.,
entered a judgment consistent with the verdict and thereafter
denied defendants’ motion for judgment notwithstanding the
verdict (JNOV) or a new trial. Defendants appealed. The Court of
Appeals, O’C
ONNELL
,P.J., and S
AAD
,J.(B
ECKERING
, J., dissenting),
reversed the circuit court’s denial of defendants’ motion for JNOV
and remanded the case for further proceedings, concluding that
plaintiff’s claim was not actionable under the WPA because, in
threatening to pursue criminal charges, plaintiff had acted to
advance his own financial interests and not out of an altruistic
motive of protecting the public. 293 Mich App 220 (2011). The
Supreme Court granted leave to appeal. 491 Mich 913 (2012).
In an opinion by Justice M
ARY
B
ETH
K
ELLY
, joined by Chief
Justice Y
OUNG
and Justices C
AVANAGH
,M
ARKMAN
, and Z
AHRA
, the
Supreme Court held:
The WPA protects an employee against an employer’s retaliatory
employment actions when the employee is engaged in protected
activity. To establish a prima facie case under the WPA, a plaintiff
must show that (1) he or she was engaged in protected activity as
W
HITMAN V
C
ITY OF
B
URTON
303
defined by the act, (2) he or she suffered an adverse employment
action, and (3) a causal connection exists between the protected
activity and the adverse employment action. The statutory language
does not address an employee’s primary motivation, nor does it imply
or suggest that any motivation must be proved as a prerequisite to
bringing a claim. Therefore, there is no statutory basis for imposing
a primary-motivation requirement, and judicial imposition of that
requirement would violate the fundamental rule of statutory con-
struction, which precludes judicial construction and interpretation
when the statutory language is clear and unambiguous. In Shallal v
Catholic Social Servs of Wayne Co, 455 Mich 604 (1997), the
Supreme Court considered an employee’s primary motivation for
pursuing a claim under the WPA and concluded that because the
employee had not threatened to report her employer out of an
altruistic motive of protecting the public, there was no causal con-
nection between the employee’s discharge and her protected activity.
Shallal, however, did not hold that an employee’s motivation is a
factor in determining whether the employee engaged in protected
activity. To the extent that Shallal has been interpreted as requiring
a specific motive, any language to that effect is disavowed as dicta. In
this case, plaintiff engaged in conduct protected under the WPA when
he reported the mayor’s violation of the local ordinance to the mayor
himself, to a city administrator, and to the city attorney. To recover
under the WPA, plaintiff therefore had to establish a causal connec-
tion between this protected conduct and the adverse employment
decision by demonstrating that defendants took the adverse employ-
ment action because of plaintiff’s protected activity. However, because
the Court of Appeals did not address the issue of causation when it
held that plaintiff’s WPA claim failed as a matter of law, this question
had to be resolved on remand for the purpose of determining whether
the circuit court’s denial of defendants’ motion for JNOV was proper.
Reversed and remanded to the Court of Appeals for consider-
ation of the remaining issues on appeal.
Justices M
C
C
ORMACK
and V
IVIANO
took no part in the decision of
this case.
M
ASTER AND
S
ERVANT —
L
ABOR
R
ELATIONS —
W
HISTLEBLOWERS
’P
ROTECTION
A
CT —
P
RIMA
F
ACIE
C
ASE
.
To establish a prima facie case under the Whistleblowers’ Protection
Act, MCL 15.361 et seq., a plaintiff must show that (1) he or she
was engaged in protected activity as defined by the act, (2) he or
she suffered an adverse employment action, and (3) a causal
connection exists between the protected activity and the adverse
employment action; a plaintiff’s motivation is not relevant to the
304 493 M
ICH
303 [May
issue whether the plaintiff has engaged in protected activity, and
proof of primary motivation is not a prerequisite to bringing a
claim under the act.
Tom R. Pabst, Michael A. Kowalko, and Jarrett M.
Pabst for plaintiff.
Plunkett Cooney (by Ernest R. Bazzana) for defen-
dants.
Amici Curiae:
Peter M. Bade, Corporation Counsel, and John Pos-
tulka, Assistant Corporation Counsel, for the city of Flint.
Garan Lucow Miller, P.C. (by Rosalind Rochkind), for
the Michigan Municipal League, the Michigan Town-
ships Association, and the Public Corporation Law
Section of the State Bar of Michigan.
Bogas, Koncius & Croson, PC (by Charlotte Croson),
for the Michigan Association for Justice.
M
ARY
B
ETH
K
ELLY
, J. This case involves the proper
interpretation of the Whistleblowers’ Protection Act
(WPA),
1
which protects an employee against an employ-
er’s retaliatory employment actions, including dis-
charge, when the employee is engaged in protected
activity. Specifically, we address whether this Court’s
decision in Shallal v Catholic Social Services of Wayne
County
2
requires an employee engaging in protected
conduct to have, as his or her primary motivation for
engaging in that conduct, a desire to inform the public
on matters of public concern, rather than personal
vindictiveness.
1
MCL 15.361 et seq.
2
Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604; 566 NW2d
571 (1997).
2013] W
HITMAN V
C
ITY OF
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URTON
305
Nothing in the statutory language of the WPA ad-
dresses the employee’s motivation for engaging in pro-
tected conduct, nor does any language in the act mandate
that the employee’s primary motivation be a desire to
inform the public of matters of public concern. Rather, the
plain language of MCL 15.362 controls, and we clarify that
a plaintiff’s motivation is not relevant to the issue
whether a plaintiff has engaged in protected activity and
that proof of primary motivation is not a prerequisite to
bringing a claim. To the extent that Shallal has been
interpreted to mandate those requirements, it is dis-
avowed. Accordingly, we reverse the judgment of the
Court of Appeals and remand this matter to that Court for
consideration of all remaining issues, including whether
the causation element of MCL 15.362 has been met.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff, Bruce Whitman, was employed by defen-
dant city of Burton as the chief of police from the time
of his appointment in March 2002 until November 2007
when codefendant Charles Smiley, the mayor of Burton
(the Mayor), declined to reappoint him. Whitman there-
after brought this action under the WPA, claiming that
the Mayor’s decision not to reappoint him was
prompted by Whitman’s repeated complaints to the
Mayor and the city attorney that the refusal to pay
Whitman’s previously accumulated unused sick and
personal leave time would violate a Burton ordinance.
Burton Ordinances 68-25C, § 8(I) (Ordinance 68C)
3
allows for unelected administrative officers, including
3
It appears that Burton’s ordinance numbering and policy regarding
unused leave time have changed since the time of the trial of this case.
Because those changes are not relevant to our analysis, this opinion
refers to the ordinance numbering and language as it was introduced
during trial.
306 493 M
ICH
303 [May
Whitman, to be compensated for unused sick, personal,
and vacation time on an annual basis.
4
Because of
significant budgetary problems in March 2003, the
Mayor and the city department heads made a “gentle-
man’s agreement” to forgo payments of unused sick,
personal, and vacation time as a budget-cutting mea-
sure, which was acknowledged in a memorandum dated
March 18, 2003. Although the agreement was memori-
alized, the city officials did not amend or rescind the
ordinance allowing compensation for the unused days.
On March 20, 2003, Whitman sent a letter to the Mayor
objecting to the austerity measures outlined in the
March 18th memorandum.
Despite receiving notice that he would not receive
compensation for the unused leave time, Whitman
continued to accumulate unused vacation, personal,
and sick days throughout 2003. In January 2004, Whit-
man undertook a series of actions to secure payment for
his 2003 unused days, repeatedly asserting that the city
was acting in violation of Ordinance 68C. Specifically,
on January 9, 2004, Whitman sent a letter to the Mayor
requesting payout for his 2003 unused days. In perti-
nent part, Whitman’s letter stated, “To ignore issues
specified in that ordinance would be a direct overt
violation of that ordinance and I fully intend to address
the violation should it occur.”
On January 12, 2004, Whitman attended a staff
meeting and advised that he had spoken to the city
attorney about the issue, and that refusing to pay
4
Ordinance 68C provided, in pertinent part:
Administrative Officers may accumulate unused sick/personal
days until a 90 day accumulation has been created. Vacation days
and unused holidays may also be credited for purpose of the
accumulation. At the option of any administrative officer, any
unused sick and/or personal, and/or vacation days may be paid in
January in the year after which they are accumulated.
2013] W
HITMAN V
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ITY OF
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URTON
307
employees for unused days was an ordinance violation
that needed to be addressed. On January 15, 2004,
Whitman wrote a letter to Dennis Lowthian, an admin-
istrative officer for the city who had been acting as a
spokesperson for all of the administrators. In this letter,
Whitman reiterated his concerns, stating, “I cannot
allow them to violate the ordinance by ‘forcing waivers’
of ordinance given rights. I believe it is my job as a
police officer to point the violation out and I will pursue
it as far as it needs to go.”
On January 23, 2004, Whitman once again wrote the
city attorney, reasserting that the failure of the city to pay
him for unused days was a violation of the ordinance.
Whitman stated, “[T]his is a violation of the ordi-
nance....IfIneed to re address [sic] through the council
I will, if you have any input on resolving this I would
appreciate it or I will be forced to pursue this as a violation
of the law and will address it as such.” On January 29,
2004, the city relented and, on the advice of the city
attorney that failure to pay Whitman would be in violation
of Ordinance 68C, authorized payments for all unused
days to Whitman and all other officers who had requested
it.
It was this series of actions that Whitman claims served
as the catalyst for the Mayor’s decision not to reappoint
him in 2007. According to Whitman, the Mayor’s conduct
after the city’s authorization of payment for his unused
vacation and sick days further substantiates the validity of
his WPA claim. Whitman alleges that in a letter dated
June 7, 2004, the Mayor stated that he was considering
removing Whitman as police chief, specifically citing Whit-
man’s actions in pursuing compensation for his unused
vacation and sick days as a basis for the Mayor’s claim
that he could not trust Whitman. During a meeting that
took place later that same day, Whitman claims that the
308 493 M
ICH
303 [May
Mayor was very angry at him and yelled, “[Y]ou tried
to put me in jail” over the Ordinance 68C issue.
Whitman also claims that the Mayor angrily pointed
his finger at him, stating, “I demand total allegiance
to me from my administrators[.]” A coworker who
was present during that meeting took handwritten
notes that stated, “Mayor = No Trust — 68-C (vaca-
tion) — lack of communication[.]”
Following his reelection in 2007, the Mayor declined
to reappoint Whitman. Shortly thereafter, the Mayor
attended a meeting with members of the police depart-
ment. Several officers in attendance at this meeting
reported that the Mayor stated that he and Whitman
“got off on the wrong foot” because of the Ordinance
68C issue and that Whitman’s conduct relating to the
ordinance got them off to a “bad start.” There were also
allegations by officers who stated that after the meet-
ing, the Mayor had indicated that “it all goes back to”
the Ordinance 68C issue, and that the Mayor had not
been happy with Whitman since shortly after his ap-
pointment because of the Ordinance 68C issue.
Defendants deny that the Mayor’s decision to appoint
another police chief in 2007 was in any way related to
Whitman’s complaints about the Ordinance 68C violation,
asserting that the decision was the result of the Mayor’s
dissatisfaction with Whitman’s performance. Specifically,
defendants claim there were numerous reasons for Smi-
ley’s decision not to reappoint Whitman, including Whit-
man’s alleged inadequate discipline of officers who inap-
propriately stopped the Mayor after the Mayor visited a
local bar, Whitman’s alleged e-mailing of inappropriate
messages using the city’s computer, Whitman’s alleged
discrimination against a female officer, and Whitman’s
alleged forgery of a signature on a budget memo. Whit-
man, however, asserts that his personnel file demon-
2013] W
HITMAN V
C
ITY OF
B
URTON
309
strates that his performance as a police chief was good,
that he had received numerous awards, and that there
were never any disciplinary actions against him. Whitman
further alleges that any performance issues cited by the
Mayor were merely a pretext.
5
Whitman thereafter brought this WPA action against
both the city of Burton and the Mayor in his individual
capacity. At trial, the jury found that Whitman had
engaged in protected conduct and that his protected
conduct made a difference in the Mayor’s decision not
to reappoint him as police chief. The jury awarded
Whitman total damages in the amount of $232,500.00,
and the circuit court subsequently entered a judgment
in that amount. Defendants then moved for judgment
notwithstanding the verdict (JNOV) or for a new trial,
which the circuit court denied.
The Court of Appeals reversed in a split published
opinion,
6
with the majority holding, as a matter of law,
that Whitman’s claim was not actionable under the
WPA because, “in threatening to inform the city council
or prosecute the mayor for a violation of Ordinance
68-C, plaintiff clearly intended to advance his own
financial interests. He did not pursue the matter to
inform the public on a matter of public concern.”
7
On
the basis of its belief that a “critical inquiry” in deter-
mining the validity of a claim under the WPA “is
whether the employee acted in good faith and with ‘a
desire to inform the public on matters of public con-
cern...,’”
8
the Court of Appeals concluded that Whit-
5
See Debano-Griffin v Lake Co, 493 Mich 167, 176; 828 NW2d 634
(2013).
6
Whitman v City of Burton, 293 Mich App 220; 810 NW2d 71 (2011).
7
Id. at 228-229.
8
Id. at 230, quoting Shallal, 455 Mich at 621 (emphasis added; citation
and quotation marks omitted).
310 493 M
ICH
303 [May
man had “acted entirely on his own behalf” such that
“[u]nder these facts, no reasonable juror could conclude
that plaintiff threatened to prosecute defendants ‘out of
an altruistic motive of protecting the public.’ ”
9
Accordingly, the Court of Appeals reversed the circuit
court’s denial of defendants’ motion for JNOV and
remanded the case for further proceedings. The major-
ity did not decide any of the remaining issues, including
causation. This Court granted leave to appeal.
10
II. STANDARD OF REVIEW
This case involves the interpretation and application
of a statute, which is a question of law that this Court
reviews de novo.
11
When interpreting a statute, we
follow the established rules of statutory construction,
the foremost of which is to discern and give effect to the
intent of the Legislature.
12
To do so, we begin by
examining the most reliable evidence of that intent, the
language of the statute itself.
13
If the language of a
statute is clear and unambiguous, the statute must be
enforced as written and no further judicial construction
is permitted.
14
Effect should be given to every phrase,
clause, and word in the statute and, whenever possible,
no word should be treated as surplusage or rendered
9
Whitman, 293 Mich App at 231, quoting Shallal, 455 Mich at 622.
10
We ordered the parties to brief “whether Shallal v Catholic Social
Servs of Wayne Co, 455 Mich 604 (1997), correctly held that the primary
motivation of an employee pursuing a whistleblower claim must be a
desire to inform the public on matters of public concern, as opposed to
personal vindictiveness.” Whitman v City of Burton, 491 Mich 913 (2012).
11
People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011); Miller-Davis
Co v Ahrens Constr, Inc, 489 Mich 355, 361; 802 NW2d 33 (2011).
12
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119
(1999).
13
Id.
14
Id.
2013] W
HITMAN V
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ITY OF
B
URTON
311
nugatory.
15
Only when an ambiguity exists in the lan-
guage of the statute is it proper for a court to go beyond
the statutory text to ascertain legislative intent.
16
III. ANALYSIS
A. THE WPA
The WPA was first enacted by the Michigan Legisla-
ture in 1980 to “provide protection to employees who
report a violation or suspected violation of state, local,
or federal law....”
17
The WPA furthers this objective
by removing barriers that may interfere with employee
efforts to report those violations or suspected viola-
tions,
18
thus establishing a cause of action for an em-
ployee who has suffered an adverse employment action
for reporting or being about to report a violation or
suspected violation of the law.
The relevant portion of the WPA, MCL 15.362, pro-
vides as follows:
An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee’s
compensation, terms, conditions, location, or privileges of
employment because the employee, or a person acting on
behalf of the employee, reports or is about to report,
verbally or in writing, a violation or a suspected violation of
a law or regulation or rule promulgated pursuant to law of
this state, a political subdivision of this state, or the United
States to a public body, unless the employee knows that the
report is false, or because an employee is requested by a
public body to participate in an investigation, hearing, or
inquiry held by that public body, or a court action.
15
Baker v Gen Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980).
16
Sun Valley, 460 Mich at 236.
17
Preamble, 1980 PA 469.
18
Dolan v Continental Airlines/Continental Express, 454 Mich 373,
378-379; 563 NW2d 23 (1997).
312 493 M
ICH
303 [May
To establish a prima facie case under the WPA, a
plaintiff need only show that (1) he or she was engaged in
protected activity as defined by the act, (2) he or she
suffered an adverse employment action, and (3) a causal
connection exists between the protected activity and the
adverse employment action.
19
Additionally, MCL 15.362
makes plain that protected conduct does not include
reports made by an employee that the employee knows are
false, or reports given because the employee is requested
to participate in an investigation by a public body.
Defendants argue that in order to assert an action-
able claim under the WPA, an employee’s primary
motivation for engaging in protected conduct must be
“a desire to inform the public on matters of public
concern.” However, MCL 15.362 does not address an
employee’s “primary motivation,” nor does the stat-
ute’s plain language suggest or imply that any motiva-
tion must be proved as a prerequisite for bringing a
claim. Further, the WPA does not suggest or imply, let
alone mandate, that an employee’s protected conduct
must be motivated by “a desire to inform the public on
matters of public concern” as a prerequisite for bring-
ing a claim. Therefore, we hold that, with regard to the
question whether an employee has engaged in conduct
protected by the act, there is no “primary motivation”
or “desire to inform the public” requirement contained
within the WPA. Because there is no statutory basis for
imposing a motivation requirement, we will not judi-
cially impose one. To do so would violate the fundamen-
tal rule of statutory construction that precludes judicial
construction or interpretation where, as here, the stat-
ute is clear and unambiguous.
20
19
Chandler v Dowell Schlumberger Inc, 456 Mich 395, 399; 572 NW2d
210 (1998); Shallal, 455 Mich at 610.
20
Sun Valley, 460 Mich at 236.
2013] W
HITMAN V
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ITY OF
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URTON
313
B. SHALLAL
In Shallal, this Court reviewed the requirements of
the WPA in a case in which the plaintiff, Janette Shallal,
attempted to use the WPA as an extortionate tool in
order to frustrate her employer’s decision to terminate
her for poor performance and misconduct. Shallal was
employed as an adoption department supervisor for
Christian Social Services (CSS), a nonprofit social ser-
vice agency that provided adoption services. During her
employment, Thomas Quinn was appointed as presi-
dent of the agency. Approximately one year after
Quinn’s appointment, Shallal learned of allegations
that Quinn had been drinking on the job and misusing
the agency’s funds. While Shallal discussed these alle-
gations with various coworkers, at no time did she
report Quinn’s violations to the board of directors or to
any other responsible body.
Shallal’s termination was precipitated by her inad-
equate response to a report of child abuse pertaining to
an adoption that she had previously supervised, which
ultimately resulted in catastrophic injuries to the child.
Upon learning of the child’s injuries, Shallal notified
the Department of Social Services (DSS), which faulted
both Shallal’s poor performance and CSS’s institutional
practices. DSS did not, however, recommend Shallal’s
dismissal. Indeed, according to Shallal, similar errors
did not result in the discharge of other employees. DSS
officials then met with Quinn to discuss their findings,
and Quinn subsequently addressed the matter with
Shallal. Their discussion became heated, with “Shallal
stat[ing] her intention to report Quinn’s abuses of
alcohol and agency funds if he failed to, in her words,
‘straighten up.’ ”
21
Ultimately, Quinn made the decision
21
Shallal, 455 Mich at 607-608.
314 493 M
ICH
303 [May
to discharge Shallal, citing the DSS’s findings as cause
for her termination and accusing her of gross miscon-
duct and negligence in supervising the adoption of the
child.
Shallal thereafter brought suit claiming that these facts
gave rise to a WPA claim, but the circuit court granted
summary disposition in favor of CSS because Shallal had
failed to show that she was “about to report” a violation.
22
The Court of Appeals affirmed on this basis, holding that
there was no immediacy to Shallal’s threatened reporting
of Quinn given that those threats were conditioned on
Quinn’s continued misconduct.
23
This Court disagreed,
concluding that Shallal had presented sufficient evidence
to create a question of fact with regard to whether she was
about to report a violation and, thus, whether she had
engaged in protected activity. Because this Court con-
cluded that Shallal’s “express threat to the wrongdoer
that she would report him if he did not straighten up,
especially coupled with her other actions, was more than
ample to conclude that reasonable minds could find that
she was ‘about to report’ a suspected violation of the law
to the DSS,”
24
it reversed that aspect of the lower courts’
decisions.
However, despite ruling that Shallal had engaged in
protected activity, this Court affirmed the grant of
summary disposition to CSS on the alternative basis of
causation. That is, this Court determined that Shallal
was unable to set forth a prima facie case under the
WPA because she “failed to establish a causal connec-
tion between her actions and her firing.”
25
To support
this holding, this Court observed that many courts have
22
MCL 15.362.
23
Shallal, 455 Mich at 608-609.
24
Id. at 621.
25
Id.
2013] W
HITMAN V
C
ITY OF
B
URTON
315
held that an employee’s bad faith will preclude recovery
under a whistleblower statute. It then cited, among
others, federal case Wolcott v Champion International
Corp
26
for the proposition that “[t]he primary motiva-
tion of an employee pursuing a whistleblower claim
‘must be a desire to inform the public on matters of
public concern, and not personal vindictiveness.’ ”
27
This Court then explained:
Where, however, an employee...keeps the matter quiet
for more than a year, eventually revealing it not to the
appropriate authorities or even to others for the purpose of
preventing public injury, but rather for some other limited
and private purpose, however laudable that purpose may
appear to the employee, no such protection is afforded.
[Otherwise] we would be discouraging disclosure and cor-
rection of unlawful or improper acts by encouraging em-
ployees to “go along” and then keep quiet reserving com-
ment or disclosure until a time best suited to the
advancement of their own interests.
[28]
Determining that Shallal had “used her own situation
to extort [CSS] not to fire her,” this Court held that there
was no causal connection between Shallal’s firing and the
protected activity when “no reasonable juror could con-
clude that [Shallal] threatened to report Quinn out of an
altruistic motive of protecting the public.”
29
Because
Quinn’s decision to fire Shallal preceded Shallal’s threat
to report him, and Shallal was aware that she was going to
be fired before threatening to report Quinn, this Court
concluded that Shallal “[could not] use the whistleblow-
ers’ act as a shield against being fired....”
30
26
Wolcott v Champion Int’l Corp, 691 F Supp 1052 (WD Mich, 1987).
27
Shallal, 455 Mich at 621, quoting Wolcott, 691 F Supp at 1065.
28
Shallal, 455 Mich at 621 (citation and quotation marks omitted;
alteration in original).
29
Id. at 622.
30
Id.
316 493 M
ICH
303 [May
C. THE COURT OF APPEALS’ APPLICATION OF SHALLAL
In this case, despite the marked absence of any
motivational element in the language of MCL 15.362,
the Court of Appeals majority held that, “as a matter of
law, plaintiff could not recover damages under the
WPA” given that, in threatening to report the Mayor’s
violation of Ordinance 68C, “plaintiff clearly intended
to advance his own financial interests” and “did not
pursue the matter to inform the public on a matter of
public concern.”
31
In reaching this conclusion, the ma-
jority relied on Shallal, which the majority interpreted
as holding that, “[i]n order to effectuate the purpose of
the WPA..., when considering a retaliation claim
under the act, a critical inquiry is whether the employee
acted in good faith and with ‘a desire to inform the
public on matters of public concern....’”
32
We dis-
agree with the Court of Appeals’ analysis because it is
not supported by the statutory text of MCL 15.362 nor
does it accurately characterize this Court’s holding in
Shallal.
As previously noted, in Shallal, this Court did con-
sider generally a whistleblower’s primary motivation
for pursuing a claim under the WPA and, relying on
federal caselaw that applied Michigan’s WPA, we con-
cluded that Shallal was precluded from using the WPA
to insulate herself from termination “where she knew
she was going to be fired before threatening to report her
supervisor.”
33
Therefore, it was because Shallal’s prior
knowledge of her impending termination incited her
subsequent threat to report Quinn that this Court held
that no reasonable juror could conclude that Shallal’s
31
Whitman, 293 Mich App at 228-229.
32
Id. at 230, quoting Shallal, 455 Mich at 621 (emphasis added;
citation and quotation marks omitted).
33
Shallal, 455 Mich at 622 (emphasis added).
2013] W
HITMAN V
C
ITY OF
B
URTON
317
threat was causally connected to her firing. There is,
however, nothing in the plain language of MCL 15.362
that supports a broader requirement that in order to
establish a viable claim under the WPA, a plaintiff must
proceed under the WPA “out of an altruistic motive of
protecting the public.”
34
Defendants argue that the “altruistic motive” re-
quirement articulated in the Court of Appeals opinion
in this case is consistent with the WPA’s underlying
purpose of providing protection to the public. Yet the
Court of Appeals relied on Shallal to judicially engraft
onto MCL 15.362 the requirement that a plaintiff’s
motivation for engaging in protected activity be altru-
istic, i.e., to prevent injury to the public, and not
self-serving, i.e., for the plaintiff’s own personal gain.
Indeed, the Court of Appeals majority’s opinion is
replete with references to Whitman’s self-serving moti-
vations, which, according to the Court of Appeals,
rendered his WPA claim nonactionable.
35
However, this
Court has explained that the WPA meets its objective of
protecting the public
34
Id.
35
For example, the Court of Appeals stated that Whitman could not
recover damages under the WPA because his threat to report the
Mayor was “clearly intended to advance his own financial interests”
and that “when considering a retaliation claim under the act, a critical
inquiry is whether the employee acted in good faith....”Whitman,
293 Mich App at 228-229, 230. The Court of Appeals also stated that
Whitman’s claim is not actionable under the WPA because he was
decidedly “acting...inthethoroughly personal and private interest
of securing a monetary benefit in order to maintain his ‘life style,’ ”
Whitman’s “complaint amounted to a private dispute over [his]
entitlement to a monetary employment benefit,” “plaintiff acted
entirely on his own behalf,” and “nowhere in the voluminous record is
there any indication that good faith or the interests of society as a
whole played any part in plaintiff’s [threatened] decision to go to the
authorities.” Id. at 230-231 (citation and quotiation marks omitted;
alteration in original).
318 493 M
ICH
303 [May
by protecting the whistleblowing employee and by remov-
ing barriers that may interdict employee efforts to report
violations or suspected violations of the law. Without em-
ployees who are willing to risk adverse employment conse-
quences as a result of whistleblowing activities, the public
would remain unaware of large-scale and potentially dan-
gerous abuses.
[
36
]
Therefore, as long as a plaintiff demonstrates a causal
connection between the protected activity and the ad-
verse employment action, the plaintiff’s subjective mo-
tivation for engaging in the protected activity in the
first instance is not relevant to whether the plaintiff
may recover under the act.
In sum, and contrary to the Court of Appeals major-
ity’s interpretation, Shallal does not hold that an
employee’s motivation is a factor in determining
whether the employee was engaged in protected activ-
ity. Indeed, it bears repeating that having a specific
primary motivation is neither a prerequisite for bring-
ing a WPA claim nor a factor to be considered in
determining whether a plaintiff had engaged in pro-
tected conduct. Accordingly, the statement in Shallal
that “[t]he primary motivation of an employee pursuing
a whistleblower claim ‘must be a desire to inform the
public on matters of public concern, and not personal
vindictiveness,’ ”
37
and Shallal’s suggestion that the
employee must act “out of an altruistic motive of
protecting the public” are disavowed as dicta.
D. APPLICATION
In this case, it is undisputed that the Mayor decided
to withhold payment of unused sick, personal, and
vacation time in violation of Ordinance 68C, a decision
36
Dolan, 454 Mich at 378-379.
37
Shallal, 455 Mich at 621-622, quoting Wolcott, 691 F Supp at 1065.
2013] W
HITMAN V
C
ITY OF
B
URTON
319
to which Whitman objected. It is also undisputed that
Whitman reported the Mayor’s violation of Ordinance
68C to the Mayor himself, city administrator Lowthian,
and the city attorney, and that following Whitman’s
reporting of this violation, he was discharged. Finally,
Whitman did not knowingly make a false report given
that the evidence reveals that the Mayor did in fact
violate Ordinance 68C, nor is there any indication that
a public body requested that Whitman participate in an
investigation. Accordingly, Whitman engaged in con-
duct protected under the WPA.
To recover under the WPA, Whitman must therefore
establish a causal connection between this protected con-
duct and the adverse employment decision by demonstrat-
ing that his employer took adverse employment action
because of his protected activity.
38
At trial, Whitman
presented evidence that his reporting of the Ordinance
68C violation made a difference in the Mayor’s decision
not to reappoint him and the Mayor, in turn, presented
evidence to the contrary. However, because the Court of
Appeals did not address the issue of causation when it
held that Whitman’s WPA claim failed as a matter of
law, this question must be resolved on remand for the
purpose of determining whether the circuit court’s
denial of defendants’ motion for JNOV was proper.
IV. CONCLUSION
We hold that the Court of Appeals majority erred in
finding that as a “matter of law, plaintiff could not
recover damages under the WPA” because he “did not
pursue the matter to inform the public on a matter of
public concern.”
39
Our review of the WPA, in particular
38
See Debano-Griffin, 493 Mich 167.
39
Whitman, 293 Mich App at 228-229.
320 493 M
ICH
303 [May
MCL 15.362, reveals that nothing in the statutory
language addresses an employee’s motivation for en-
gaging in protected conduct, nor does any language
mandate that the employee’s primary motivation for
pursuing a claim under the act be a desire to inform the
public of matters of public concern. Accordingly, the
plain language of MCL 15.362 controls, and we clarify
that a plaintiff’s motivation is not relevant to the issue
whether a plaintiff has engaged in protected activity
and proof of any specific motivation is not a prerequisite
to bringing a claim under the WPA. To the extent that
Shallal has been interpreted to mandate a specific
motive, any language to that effect is disavowed as dicta
unrelated to the essential holding of the case regarding
the causal connection between the protected activity
and the adverse employment decision.
Accordingly, we reverse the judgment of the Court of
Appeals and remand this case to the Court of Appeals
for consideration of all remaining issues on which that
court did not formally rule, including whether the
causation element of MCL 15.362 has been met.
40
Y
OUNG
, C.J., and C
AVANAGH
,M
ARKMAN
, and Z
AHRA
,JJ.,
concurred with M
ARY
B
ETH
K
ELLY
,J.
M
C
C
ORMACK
and V
IVIANO
, JJ., took no part in the
decision of this case.
40
The Court of Appeals shall consider the causation issue in light of
this Court’s recent decision in Debano-Griffin, 493 Mich 167.
2013] W
HITMAN V
C
ITY OF
B
URTON
321
O
RDERS IN
C
ASES
ORDERS ENTERED IN
CASES BEFORE THE
SUPREME COURT
Summary Disposition September 19, 2012:
P
EOPLE V
O
SBORNE
, No. 144737; Court of Appeals No. 307054. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals for consideration as on leave granted.
Leave to Appeal Granted September 19, 2012:
G
RANGE
I
NSURANCE
C
OMPANY OF
M
ICHIGAN V
L
AWRENCE
, No. 145206;
reported below: 296 Mich App 319. The parties shall include among the
issues to be briefed (1) whether a person, and in particular the minor
child of divorced parents, can have two domiciles for the purpose of
determining coverage under MCL 500.3114(1) of the Michigan no-fault
act; (2) whether, in answering the first issue, a court order determining
the minor’s custody has any effect; and (3) whether an insurance policy
provision giving preclusive effect to a court-ordered custody arrangement
is enforceable.
The Family Law and Probate and Estate Planning Law Sections of the
State Bar of Michigan are invited to file briefs amicus curiae. Other
persons or groups interested in the determination of the issues presented
in this case may move the Court for permission to file briefs amicus
curiae.
Order Granting Oral Argument in Case Pending on Application for Leave
to Appeal Entered September 19, 2012:
K
ENNEY V
B
OOKER
, No. 145116; Court of Appeals No. 304900. We direct
the Clerk to schedule oral argument on whether to grant the application
or take other action. MCR 7.302(H)(1). The parties shall submit supple-
mental briefs within 42 days of the date of this order addressing (1) what
standards should govern whether to grant habeas corpus relief; (2)
whether a claim of insufficient evidence in the context of a parole hearing
may provide a basis for habeas corpus relief; (3) whether evidence that a
parolee “should have known” of the presence of an item is sufficient to
establish possession of that item where possession of the item constitutes
a violation of parole; and (4) what standard of review applies to factual
decisions by the Parole Board. The parties should not submit mere
restatements of their application papers.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
O
RDERS IN
C
ASES
851
Leave to Appeal Denied September 19, 2012:
P
EOPLE V
I
DRIS
Y
OUNG
, No. 143579; Court of Appeals No. 297858.
P
EOPLE V
S
WEET
, No. 144128; Court of Appeals No. 304598.
P
EOPLE V
S
WEET
, No. 144161; Court of Appeals No. 304599.
P
EOPLE V
L
ACEY
, No. 144192; Court of Appeals No. 306072.
D
EPARTMENT OF
T
RANSPORTATION V
CBS O
UTDOOR
,I
NC
, No. 144440; Court
of Appeals No. 297016.
D
ETROIT
I
NTERNATIONAL
B
RIDGE
C
OMPANY V
D
EPARTMENT OF
T
RANSPORTA-
TION
, No. 144442; Court of Appeals No. 298276.
L
UCIO V
G
REAT
L
AKES
C
ASUALTY
I
NSURANCE
C
OMPANY
, No. 144603; Court
of Appeals No. 299786.
C
ONSTANTINO V
C
ITIZENS
I
NSURANCE
C
OMPANY OF
A
MERICA
, No. 144687;
Court of Appeals No. 300961.
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would grant leave to appeal.
P
EOPLE V
P
IONK
, No. 144698; Court of Appeals No. 307258.
P
EOPLE V
K
EVIN
J
ONES
, No. 144702; Court of Appeals No. 307309.
P
EOPLE V
L
OCKETT
and P
EOPLE V
T
ADARIUS
J
OHNSON
, Nos. 144724 and
144725; reported below: 295 Mich App 165.
P
EOPLE V
T
ADARIUS
J
OHNSON
, No. 144730; reported below: 295 Mich App
165.
P
EOPLE V
M
C
C
LAIN
, No. 144891; Court of Appeals No. 301040.
G
OODENOW V
P
UBLIC
S
CHOOL
E
MPLOYEES
’R
ETIREMENT
B
OARD
, No. 144956;
Court of Appeals No. 301553.
In re S
ASAK
, No. 144981; Court of Appeals No. 301696.
Rehearing Denied September 19, 2012:
H
OFFNER V
L
ANCTOE
, No. 142267. Reported at 492 Mich 450.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant rehearing.
Leave to Appeal Granted September 21, 2012:
H
ILLSDALE
C
OUNTY
S
ENIOR
S
ERVICES
C
ENTER
,I
NC V
H
ILLSDALE
C
OUNTY
, No.
144630; Court of Appeals No. 301607. The parties shall address (1)
whether the Michigan Tax Tribunal has jurisdiction, pursuant to MCL
205.731, over the plaintiffs’ claim for mandamus to enforce the terms of
the August 2008 Hillsdale County millage that levied an additional 0.5
mill for funding the Hillsdale County Senior Services Center, Inc., and (2)
whether a court has the constitutional authority to issue a writ of
mandamus to compel a municipality to levy and spend taxes.
852 493 M
ICHIGAN
R
EPORTS
Persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
Orders Granting Oral Argument in Cases Pending on Application for
Leave to Appeal Entered September 21, 2012:
In re C
ERTIFIED
Q
UESTION
F
ROM THE
U
NITED
S
TATES
D
ISTRICT
C
OURT FOR
THE
W
ESTERN
D
ISTRICT OF
M
ICHIGAN
(M
ATTISON V
S
OCIAL
S
ECURITY
C
OMMIS-
SIONER
), No. 144385. On order of the Court, the question certified by the
United States District Court for the Western District of Michigan is
considered. We direct the Clerk to schedule oral argument on whether to
answer the question. MCR 7.305(B). The parties shall file supplemental
briefs within 35 days of the date of this order addressing whether
Michigan’s afterborn heirs statute, MCL 700.2108, is determinative of
the question. They should avoid submitting mere restatements of the
arguments made in their briefs.
M
C
P
HERSON V
M
C
P
HERSON
, No. 144666; Court of Appeals No.
299618. We direct the Clerk to schedule oral argument on whether to
grant the application or take other action. MCR 7.302(H)(1). The parties
may file supplemental briefs within 35 days of the date of this order, but
they should not submit mere restatements of their application papers.
M
ICHIGAN
I
NSURANCE
C
OMPANY V
N
ATIONAL
L
IABILITY
&F
IRE
I
NSURANCE
C
OMPANY
, Nos. 144771 and 144792; Court of Appeals No. 301980. We
direct the Clerk to schedule oral argument on whether to grant the
applications or take other action. MCR 7.302(H)(1). At oral argument,
the parties shall address (1) whether the resident of the foster care
facility injured as a pedestrian in this case can be deemed a “family
member” under the definition provided in the policy issued to the facility
in this case; (2) if the resident was such a “ward,” whether the policy
coverage extended thereby established a priority for the payment of PIP
benefits higher than the priority established by MCL 500.3115(1); and (3)
whether the decision in United States Fidelity & Guaranty Co v Citizens
Ins Co, 241 Mich App 83 (2000), was correctly decided. The parties may
file supplemental briefs within 35 days of the date of this order, but they
should not submit mere restatements of their application papers.
S
MITH V
D
EPARTMENT OF
H
UMAN
S
ERVICES
D
IRECTOR
, Nos. 145612, 145613,
145622, and 145623; reported below: 297 Mich App 148. The motions for
immediate consideration and the motion to supplement record are
granted. The motion to strike is denied. The applications for leave to
appeal the June 26, 2012, judgment of the Court of Appeals are
considered. We direct the Clerk to schedule oral argument on whether to
grant the applications or take other action. At oral argument, the parties
shall address (1) whether the defendant properly implemented the
60-month limitation on Family Independence Program cash assistance
benefits without rulemaking under the Administrative Procedures Act
(MCL 24.201 et seq.), and (2) whether the defendant had the authority to
implement the 60-month limitation on Family Independence Program
O
RDERS IN
C
ASES
853
cash assistance benefits and whether this limitation conflicts with any
provisions of the Social Welfare Act (MCL 400.1 et seq.). The parties may
file supplemental briefs within 35 days of the date of this order, but they
should not submit mere restatements of their application papers.
The motion for leave to file a brief amicus curiae is granted. Other
persons or groups interested in the determination of the issues presented
in this case may move the Court for permission to file briefs amicus
curiae.
Leave to Appeal Denied September 21, 2012:
G
ANSEN V
P
HILLIPS
, No. 145431; Court of Appeals No. 304102.
In re G
ODBOLDO
-H
AKIM
, No. 145666; Court of Appeals No. 308040.
I
NTERNATIONAL
T
RANSMISSION
C
OMPANY V
B
EABER
,I
NTERNATIONAL
T
RANSMIS-
SION
C
OMPANY V
D
IXON
,I
NTERNATIONAL
T
RANSMISSION
C
OMPANY V
K
UHN
,I
NTER-
NATIONAL
T
RANSMISSION
C
OMPANY V
S
LAY
E
STATE
,I
NTERNATIONAL
T
RANSMISSION
C
OMPANY V
R
OGERS
,I
NTERNATIONAL
T
RANSMISSION
C
OMPANY V
L
EMKE
,I
NTERNA-
TIONAL
T
RANSMISSION
C
OMPANY V
S
MITH
, and I
NTERNATIONAL
T
RANSMISSION
C
OMPANY V
L
IOGGHIO
, Nos. 145808, 145809; 145810, 145811, 145812,
145813, 145814, and 145815; Court of Appeals Nos. 311949, 311988,
311989, 311990, 311991, 311992, 311993, and 311994.
Leave to Appeal Denied September 24, 2012:
P
EOPLE V
K
EONDO
T
AYLOR
, No. 143603; Court of Appeals No. 296915.
P
EOPLE V
V
ONHABSBURG
-L
OTHRINGEN
, No. 144211; Court of Appeals No.
305566.
P
EOPLE V
Z
AMORA
, No. 144218; Court of Appeals No. 299238.
R
UBY
&A
SSOCIATES V
G
EORGE
WS
MITH
&C
OMPANY
, PC, No. 144349;
Court of Appeals No. 297266.
B
LASER V
D
EVRIES
, No. 144375; Court of Appeals No. 297555.
P
REMIER
C
ENTER OF
C
ANTON V
N
ORTH
A
MERICAN
S
PECIALTY
I
NSURANCE
C
OMPANY
, No. 144394; Court of Appeals No. 297799.
P
EOPLE V
L
IGON
, No. 144402; Court of Appeals No. 303353.
P
EOPLE V
K
EVIN
A
LLEN
, No. 144428; Court of Appeals No. 305264.
C
OUNTRYWIDE
H
OME
L
OANS
,I
NC V
P
EOPLES
C
HOICE
H
OME
L
OAN
,I
NC
, No.
144435; Court of Appeals No. 298399.
In re P
AROLE OF
G
RIER
, No. 144489; Court of Appeals No. 304908.
P
EOPLE V
C
HRISTOPHER
M
OON
, No. 144515; Court of Appeals No. 300357.
P
EOPLE V
W
ADE
, No. 144557; Court of Appeals No. 305910.
854 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
G
RANAAS
, No. 144609; Court of Appeals No. 299576.
P
EOPLE V
E
CKFORD
, No. 144618; Court of Appeals No. 306003.
P
EOPLE V
T
ATE
, No. 144622; Court of Appeals No. 291123.
H
ATHAWAY
, J., not participating. Justice H
ATHAWAY
recuses herself and
will not participate in this case as she was the presiding trial court judge.
See MCR 2.003(B).
P
EOPLE V
D
AVID
S
MITH
, No. 144625; Court of Appeals No. 306869.
P
EOPLE V
A
RCHIE
T
HOMAS
, No. 144635; Court of Appeals No. 305367.
P
EOPLE V
Z
AVALETA
, No. 144637; Court of Appeals No. 305722.
P
EOPLE V
B
ASSO
, No. 144641; Court of Appeals No. 307298.
P
EOPLE V
M
ARQUIS
T
AYLOR
, No. 144642; Court of Appeals No. 306169.
P
EOPLE V
R
OCCA
, No. 144648; Court of Appeals No. 305915.
P
EOPLE V
K
ETOLA
, No. 144649; Court of Appeals No. 307205.
P
EOPLE V
S
CROGGINS
, No. 144697; Court of Appeals No. 307004.
P
EOPLE V
P
AUL
J
OHNSON
, No. 144718; Court of Appeals No. 300879.
P
EOPLE V
D
AVID
J
OHNSON
, No. 144723; Court of Appeals No. 305025.
P
EOPLE V
R
HIMES
, No. 144767; Court of Appeals No. 300966.
C
AVANAGH
, J., would grant leave to appeal to consider the constitution-
ality of MCL 786.27b.
P
EOPLE V
D
ON
T
URNER
, No. 144777; Court of Appeals No. 299906.
P
EOPLE V
W
INFIELD
, No. 144789; Court of Appeals No. 306374.
P
EOPLE V
H
ARVEY
F
AIRLEY
, No. 144812; Court of Appeals No. 307731.
P
EOPLE V
C
ASANAVE
, No. 144824; Court of Appeals No. 307681.
P
EOPLE V
T
IGHE
, No. 144837; Court of Appeals No. 307839.
P
EOPLE V
L
EE
, No. 144879; Court of Appeals No. 305958.
P
EOPLE V
J
IMMY
C
OLE
, No. 144882; Court of Appeals No. 307206.
P
EOPLE V
C
LOIS
B
ELL
, No. 144884; Court of Appeals No. 305556.
P
EOPLE V
R
OOSEVELT
W
ILLIAMS
, No. 144900; Court of Appeals No. 306246.
P
EOPLE V
L
OVETT
, No. 144905; Court of Appeals No. 300454.
C
AVANAGH
, J., would grant leave to appeal.
P
EOPLE V
G
RISHAM
, No. 144910; Court of Appeals No. 306966.
P
EOPLE V
F
REDERICK
W
ILLIAMS
, No. 144929; Court of Appeals No. 306136.
P
EOPLE V
J
ACK
S
MITH
, No. 144992; Court of Appeals No. 307815.
O
RDERS IN
C
ASES
855
C
ITY OF
R
OMULUS V
W
AYNE
C
OUNTY
, No. 144996; Court of Appeals No.
300844.
P
EOPLE V
D
URHAM
, No. 145015; Court of Appeals No. 302563.
P
EOPLE V
M
ARK
J
ENNINGS
, No. 145020; Court of Appeals No. 302403.
P
EOPLE V
J
EROME
W
ILSON
, No. 145032; Court of Appeals No. 307862.
A
RCHIE V
C
ITIMORTGAGE
, No. 145057; Court of Appeals No. 305596.
P
EOPLE V
T
WIETMEYER
, No. 145070; Court of Appeals No. 308294.
P
EOPLE V
A
LFORD
, No. 145085; Court of Appeals No. 308567.
P
EOPLE V
W
ATTS
, No. 145086; Court of Appeals No. 301371.
C
AVANAGH
, J., would grant leave to appeal.
P
EOPLE V
S
HELBY
, No. 145087; Court of Appeals No. 308521.
P
EOPLE V
M
ASLONKA
, No. 145107; Court of Appeals No. 305058.
P
EOPLE V
S
UDDUTH
, No. 145115; Court of Appeals No. 307085.
P
EOPLE V
R
ICKS
, No. 145128; Court of Appeals No. 301479.
P
EOPLE V
D
ARTON
R
EESE
, No. 145137; Court of Appeals No. 308049.
A
RENAC
P
ROPERTY
I
V
A
RENAC
C
OUNTY
T
REASURER
, No. 145141; Court of
Appeals No. 303766.
P
EOPLE V
S
OLOMON
, No. 145143; Court of Appeals No. 308782.
P
EOPLE V
E
RNEST
G
RAHAM
, No. 145151; Court of Appeals No. 301389.
P
EOPLE V
M
C
C
ARN
, No. 145162; Court of Appeals No. 308894.
P
EOPLE V
C
HANDLER
, No. 145163; Court of Appeals No. 308683.
P
EOPLE V
B
ROWNELL
, No. 145166; Court of Appeals No. 308526.
P
EOPLE V
W
ALLACE
, No. 145167; Court of Appeals No. 303036.
P
EOPLE V
C
ORRION
, No. 145168; Court of Appeals No. 310054.
O
LD
R
EPUBLIC
I
NSURANCE
C
OMPANY V
M
ICHIGAN
C
ATASTROPHIC
C
LAIMS
A
SSOCIATION
, No. 145173; Court of Appeals No. 302384.
H
ATHAWAY
, J., did not participate because she has a professional
relationship with a member of a law firm involved in this matter.
R
ODENHISER V
D
UENAS
, No. 145175; reported below: 296 Mich App 268.
P
EOPLE V
R
OWLS
, No. 145179; Court of Appeals No. 307555.
P
EOPLE V
H
ENDERSON
, No. 145180; Court of Appeals No. 308414.
P
EOPLE V
C
ECIL
M
OON
, No. 145183; Court of Appeals No. 308508.
P
EOPLE V
D
REW
C
ARTER
, No. 145194; Court of Appeals No. 301191.
856 493 M
ICHIGAN
R
EPORTS
U
TLEY V
W
ASHTENAW
C
OUNTY
B
OARD OF
C
OUNTY
R
OAD
C
OMMISSIONERS
, No.
145208; Court of Appeals No. 303572.
P
EOPLE V
R
ANDOLPH
, No. 145211; Court of Appeals No. 309332.
P
EOPLE V
T
ALBERT
, No. 145228; Court of Appeals No. 302807.
P
EOPLE V
D
ORSEY
, Nos. 145248, 145249, 145250, and 145251; Court of
Appeals Nos. 309116, 309117, 309118, and 309119.
P
EOPLE V
A
MERSEY
, No. 145258; Court of Appeals No. 306780.
K
UTZ V
K
UTZ
, No. 145262; Court of Appeals No. 300864.
P
EOPLE V
D
UNCAN
C
OLE
, No. 145264; Court of Appeals No. 301638.
P
EOPLE V
R
ICHMOND
C
OLE
, No. 145265; Court of Appeals No. 303806.
P
EOPLE V
A
NTHONY
M
ITCHELL
, No. 145267; Court of Appeals No. 308793.
P
EOPLE V
T
ODD
B
AKER
, No. 145268; Court of Appeals No. 302784.
F
IFTH
T
HIRD
B
ANK V
D
ANOU
T
ECHNICAL
P
ARK
, No. 145269; Court of
Appeals No. 302884.
P
EOPLE V
D
ELEON
, No. 145271; Court of Appeals No. 302761.
P
EOPLE V
K
EVIN
S
PEARS
, No. 145272; Court of Appeals No. 309630.
P
EOPLE V
V
ORE
, No. 145277; Court of Appeals No. 302638.
P
EOPLE V
P
AYNE
, No. 145284; Court of Appeals No. 296638.
P
EOPLE V
C
URRY
-H
OWARD
, No. 145289; Court of Appeals No. 302882.
P
EOPLE V
D
EQUARIUS
S
TEWART
, No. 145291; Court of Appeals No. 303780.
P
EOPLE V
B
EARDEN
, No. 145294; Court of Appeals No. 302140.
P
EOPLE V
H
UNT
, No. 145296; Court of Appeals No. 299560.
P
EOPLE V
R
UNION
, No. 145300; Court of Appeals No. 309273.
P
EOPLE V
J
OE
W
ILLIAMS
, No. 145301; Court of Appeals No. 302410.
P
EOPLE V
G
ILLEN
, No. 145307; Court of Appeals No. 304350.
P
EOPLE V
J
AMISON
, No. 145317; Court of Appeals No. 303882.
C
AVANAGH
, J., would grant leave to appeal.
P
EOPLE V
C
ANADA
, No. 145320; Court of Appeals No. 303476.
P
EOPLE V
G
ILES
, No. 145321; Court of Appeals No. 302839.
P
EOPLE V
G
LOVER
, No. 145327; Court of Appeals No. 302412.
P
EOPLE V
H
ENDERSON
, No. 145334; Court of Appeals No. 308415.
P
EOPLE V
M
ATTHEW
B
ROWN
, Nos. 145335, 145336, 145337, and 145338;
Court of Appeals Nos. 308003, 308004, 308005, and 308006.
O
RDERS IN
C
ASES
857
P
EOPLE V
S
EXTON
, No. 145353; Court of Appeals No. 309358.
P
EOPLE V
G
AINES
, No. 145359; Court of Appeals No. 299328.
P
EOPLE V
J
AMES
T
HOMAS
W
RIGHT
, No. 145362; Court of Appeals No.
297192.
P
UGH V
C
ROWLEY
, No. 145366; Court of Appeals No. 305315.
P
EOPLE V
S
PREEMAN
, No. 145376; Court of Appeals No. 308535.
T
ITAN
I
NSURANCE
C
OMPANY V
S
TATE
F
ARM
M
UTUAL
A
UTOMOBILE
I
NSURANCE
,
No. 145377; reported below: 296 Mich App 75.
Z
AHRA
, J., did not participate because earlier in these proceedings he
was on the Court of Appeals panel that addressed substantially the same
issue presented here.
P
EOPLE V
W
INSTON
, No. 145382; Court of Appeals No. 308322.
P
EOPLE V
E
LIE
, No. 145389; Court of Appeals No. 299605.
P
EOPLE V
M
C
I
LVEENE
, No. 145390; Court of Appeals No. 308901.
P
EOPLE V
L
OUGHNER
, No. 145399; Court of Appeals No. 308944.
P
EOPLE V
R
ONNIE
O
LIVER
, No. 145400; Court of Appeals No. 309976.
P
EOPLE V
B
YARS
, No. 145429; Court of Appeals No. 308865.
P
EOPLE V
C
HILDRESS
, No. 145447; Court of Appeals No. 299592.
B
EDFORD V
R
OGERS
, No. 145469; Court of Appeals No. 299783.
P
EOPLE V
S
WEET
, No. 145476; Court of Appeals No. 307821.
P
EOPLE V
L
OTZER
, No. 145564; Court of Appeals No. 309394.
P
EOPLE V
N
ETTEKOVEN
, No. 145566; Court of Appeals No. 309395.
M
ANZO V
M
ANZO
, No. 145648; Court of Appeals No. 307082.
Superintending Control Denied September 24, 2012:
G
HANNAM V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 145221.
H
AMMONDS V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 145273.
H
ATHAWAY
, J., did not participate because she has a professional
relationship with a member of a law firm involved in this matter.
C
HAPMAN V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 145309.
Reconsideration Denied September 24, 2012:
P
EOPLE V
D
ISNEY
, No. 144105; Court of Appeals No. 302386. Leave to
appeal denied at 491 Mich 941.
858 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
C
HILDS
, No. 144169; Court of Appeals No. 297692. Summary
disposition at 491 Mich 906.
P
EOPLE V
D
ON
T
OWNSEND
, No. 144340; Court of Appeals No.
306278. Leave to appeal denied at 491 Mich 942.
P
EOPLE V
G
ILMORE
, No. 144346; Court of Appeals No. 306437. Leave to
appeal denied at 492 Mich 853.
P
EOPLE V
C
RYSLER
, No. 144662; Court of Appeals No. 307264. Leave to
appeal denied at 491 Mich 943.
P
EOPLE V
K
EAN
, No. 144688; Court of Appeals No. 292312. Leave to
appeal denied at 491 Mich 944.
Summary Disposition September 26, 2012:
W
ELLS
F
ARGO
B
ANK V
C
HERRYLAND
M
ALL
L
IMITED
P
ARTNERSHIP
, No.
144578; reported below: 295 Mich App 99. Pursuant to MCR
7.302(H)(1), in lieu of granting leave to appeal, we remand this case to the
Court of Appeals for further proceedings. On remand, the Court of
Appeals shall reconsider its decision in light of the Legislature’s recent
passage of the Nonrecourse Mortgage Loan Act, 2012 PA 67, MCL
445.1591 et seq., which retroactively prohibits a post closing solvency
covenant from being used as a nonrecourse carveout or as a basis for any
claim against a borrower, guarantor, or other surety on a nonrecourse
loan. In all other respects, leave to appeal is denied. The motion to vacate
is denied.
We do not retain jurisdiction.
F
REMONT
I
NSURANCE
C
OMPANY V
I
ZENBAARD
, No. 144728; Court of Appeals
No. 300825. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we reverse the judgment of the Court of Appeals. In ascertaining
the meaning of a contract, we give the words used in the contract their
plain and ordinary meaning that would be apparent to a reader of the
instrument. Because the term “premises” is undefined in the insurance
contract at issue in this case, reference to dictionary definitions is
appropriate. Such definitions do not necessarily require a building to
exist on a particular piece of land in order to fall under the common
understanding of “premises,” which is a term that generally must be
interpreted in light of its surrounding context. See, e.g., Random House
Webster’s College Dictionary (“[A] tract of land including its buildings.”)
(emphasis added); Black’s Law Dictionary (6th ed) (“Land with its
appurtenances and structures thereon. Premises is an elastic and inclu-
sive term, and it does not have one definite and fixed meaning; its
meaning is to be determined by its context and is dependent on the
circumstances in which used, and may mean a room, shop, building, or
any definite area.”). The Court of Appeals erred in concluding that the
term “premises” as used in the insurance provision at issue in this case
must be defined as property that has a building on it; nothing in the
language or context of the insurance contract requires as much. We
O
RDERS IN
C
ASES
859
remand this case to the Court of Appeals to address the additional issue
raised, but not decided, below: whether the location of the accident was
used “in connection with” the insured residence.
We do not retain jurisdiction.
M
ICHIGAN
A
SSOCIATION OF
G
OVERNMENTAL
E
MPLOYEES V
S
TATE OF
M
ICHIGAN
,
No. 144850; Court of Appeals No. 304920. Pursuant to MCR 7.302(H)(1),
in lieu of granting leave to appeal, we remand this case to the Court of
Appeals for consideration as on leave granted.
P
EOPLE V
K
LAASEN
, No. 144978; Court of Appeals No. 308300. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand
this case to the Livingston Circuit Court for reconsideration of the
defendant’s motion to withdraw his guilty plea in light of this Court’s
decision in People v Cole, 491 Mich 325 (2012).
We do not retain jurisdiction.
In re D
UNCAN
, No. 145240; Court of Appeals No. 306821. Pursuant to
MCR 7.302(H)(1), in lieu of granting leave to appeal, we reverse the
judgment of the Court of Appeals, for the reasons stated in the Court of
Appeals dissenting opinion, and we remand this case to the Court of
Appeals for consideration of the issue raised by the respondent but not
addressed by that court during its initial review of this case.
We do not retain jurisdiction.
M
ARILYN
K
ELLY
, J., would deny leave to appeal.
Leave to Appeal Granted September 26, 2012:
P
EOPLE V
M
USSER
, No. 145237; Court of Appeals No. 301765. The
application for leave to appeal the February 21, 2012, judgment of the
Court of Appeals is considered and it is granted, limited to the issues (1)
whether statements in a recording of a police interview of a criminal
defendant that vouch for the credibility of a witness, which would be
inadmissible if stated by a trial witness, must be redacted from the
recording before the jury views it; or (2) if the jury is allowed to see such
a recording without redacting the vouching statements, what circum-
stances must be present and what, if any, protective measures must be in
place.
The Prosecuting Attorneys Association of Michigan, the Criminal
Defense Attorneys of Michigan, and the Criminal Law Section of the
State Bar of Michigan are invited to file briefs amicus curiae. Other
persons or groups interested in the determination of the issues presented
in this case may move the Court for permission to file briefs amicus
curiae.
Order Granting Oral Argument in Case Pending on Application for Leave
to Appeal Entered September 26, 2012:
A
DDISON
T
OWNSHIP V
B
ARNHART
, No. 145144; Court of Appeals No.
301294. We direct the Clerk to schedule oral argument on whether to
860 493 M
ICHIGAN
R
EPORTS
grant the application or take other action. MCR 7.302(H)(1). At oral
argument, the parties shall address whether the Court of Appeals erred
in Addison Twp v Barnhart, unpublished opinion per curiam of the Court
of Appeals, issued March 13, 2008 (Docket No. 272942) (Barnhart I),
when it held that, “to the extent that there was testimony to suggest that
defendant’s operation of a shooting range was for business or commercial
purposes, MCL 691.1542a(2)(c) does not provide freedom from compli-
ance with local zoning controls.” The parties may file supplemental briefs
within 35 days of the date of this order, but they should not submit mere
restatements of their application papers.
The motions for leave to file brief amicus curiae are granted. The
Michigan Municipal League and the Michigan Townships Association are
invited to file briefs amicus curiae. Other persons or groups interested in
the determination of the issues presented in this case may move the
Court for permission to file briefs amicus curiae.
Leave to Appeal Denied September 26, 2012:
P
EOPLE V
H
UNTER
L
ONG
, No. 144076; Court of Appeals No. 302411.
P
EOPLE V
S
CHERRET
, No. 144095; Court of Appeals No. 304315.
C
ITY OF
D
EARBORN V
M
ATTISON
, No. 144330; Court of Appeals No.
305565.
M
ARILYN
K
ELLY
, J., would grant leave to appeal.
P
EOPLE V
D
EVON
S
MITH
, No. 144368; Court of Appeals No. 303624.
M
ARILYN
K
ELLY
, J., would grant leave to appeal.
P
ONTIAC
S
CHOOL
D
ISTRICT V
P
ONTIAC
E
DUCATION
A
SSOCIATION
, No. 144629;
reported below: 295 Mich App 147.
P
EOPLE V
T
ODD
D
OUGLAS
, No. 144689; reported below: 295 Mich App
129.
C
OMMAND
O
FFICERS
A
SSOCIATION OF
M
ICHIGAN V
S
HELBY
T
OWNSHIP
, No.
144710; Court of Appeals No. 300999.
M
ARILYN
K
ELLY
, J., would grant leave to appeal.
P
EOPLE V
C
HARLES
P
ERRY
, No. 144809; Court of Appeals No. 306976.
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would remand this case to the trial
court for resentencing on the defendant’s carjacking and armed robbery
convictions.
Y
ERGEAU V
B
LEICH
, No. 144842; Court of Appeals No. 301400.
Y
ERGEAU V
B
LEICH
, No. 144844; Court of Appeals No. 301400.
M
ARBLE V
C
IVIL
S
ERVICE
C
OMMISSION
, No. 144925; Court of Appeals No.
305853.
P
EOPLE V
K
LAASEN
, No. 144980; Court of Appeals No. 308301.
M
ARILYN
K
ELLY
, J., would remand this case for resentencing.
O
RDERS IN
C
ASES
861
B
ABIARZ V
L
ESLIE
, No. 145119; Court of Appeals No. 301927.
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would grant leave to appeal.
Leave to Appeal Before Decision by the Court of Appeals Denied September
26, 2012:
J
OHN
G
UIDOBONO
, II, R
EVOCABLE
T
RUST
A
GREEMENT V
J
ONES
, No. 144799;
Court of Appeals No. 308855.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant leave to
appeal before a decision by the Court of Appeals and would affirm the
Livingston Circuit Court’s order dismissing this case.
Leave to Appeal Denied September 28, 2012:
F
IFTH
T
HIRD
M
ORTGAGE-
MI, LLC v H
ANCE
, No. 144319; Court of Appeals
No. 294698. The motion to seal the record is granted. The Court finds
that there is good cause to seal the record, consistent with the Oakland
Circuit Court’s September 27, 2006, protective order and the April 12,
2010, Court of Appeals order sealing the briefs and exhibits. There is no
less restrictive means to adequately and effectively protect the specific
interests asserted. See MCR 7.313(A), (D) and MCR 8.119(F)(1). The
application for leave to appeal the September 29, 2011, judgment of the
Court of Appeals is considered, and it is denied.
M
ARKMAN
,J.(concurring). I join in this Court’s order denying leave to
appeal, but write separately to address the Court of Appeals majority’s
departure from the principles of resolving allegedly ambiguous contract
provisions established in Klapp v United Ins Group Agency, Inc, 468 Mich
459 (2003). As this Court clarified in Klapp, “ ‘ “[t]he law is clear that where
the language of the contract is ambiguous, the court can look to such
extrinsic evidence as the parties’ conduct, the statements of its representa-
tives, and past practice to aid in interpretation.” ’ ” Id. at 470, quoting
Penzien v Dielectric Prod Engineering Co, Inc, 374 Mich 444, 449 (1965).
Only if ambiguity persists even after all other conventional means of
contract interpretation have been applied, and all relevant extrinsic evi-
dence considered, should the rule of contra proferentem (ambiguous con-
tracts to be construed against the drafting party) be applied, as it was in this
case. Klapp, 468 Mich at 474. Contrary to the analysis of the Court of
Appeals majority, the rule of contra proferentem is a rule of last resort. The
primary goal of contract interpretation is to honor the parties’ intent, and
the rule of contra proferentem does not further that goal; rather, it merely
ascertains “the winner and the loser in connection with a contract whose
meaning has eluded [the decision-maker] despite all efforts to apply conven-
tional rules of interpretation.” Id. at 474. That is, it is essentially a
tiebreaker. However, a tie cannot be declared without first considering
relevant extrinsic evidence. I concur with this Court’s order because,
although I believe that reasonable interpretations of the contract in dispute
have been offered by both sides, in the end, I agree with the result reached
by the Court of Appeals without finding the contract here to be ambiguous.
P
EOPLE V
Y
BARRA
, No. 144620; Court of Appeals No. 301243.
862 493 M
ICHIGAN
R
EPORTS
Z
AHRA
,J.(concurring). I concur in this Court’s order denying leave to
appeal in this matter. I write separately to address defendant’s argument
that he should be allowed to create an evidentiary record to support his
claim of ineffective assistance of counsel.
Following his jury conviction for armed robbery, defendant filed an
appeal of right in the Court of Appeals and moved to remand for an
evidentiary hearing on ineffective assistance of counsel. He appended to
his motion a signed but unnotarized statement, asserting that his trial
counsel had failed to inform him of the difference between the potential
sentencing guidelines recommendation for his jury trial convictions on
the three offenses charged and the more favorable sentencing guidelines
recommendation if he had accepted the offer to plead guilty to only one
offense. He claimed that if his trial counsel had so informed him, then he
would have accepted the plea offer. The Court of Appeals denied the
motion to remand “for failure to satisfy the requirements of MCR
7.211(C)(1).”
1
The Court of Appeals subsequently issued an unpublished opinion per
curiam, affirming defendant’s convictions and sentences.
2
In addressing
defendant’s ineffective-assistance claim on the plea-agreement issue, the
Court of Appeals recognized that a defense attorney’s failure to inform a
defendant of the sentencing consequences if the defendant is convicted at
trial as opposed to those of accepting a guilty plea can be the basis of an
ineffective-assistance-of-counsel claim.
3
However, the Court of Appeals
rejected defendant’s claim, stating that
defense counsel was not ineffective as there is nothing in the
record to show that defense counsel failed to inform [defendant] of
the sentencing consequences. Because [defendant] has not estab-
lished the factual predicate for his claim, he has not shown that
trial counsel’s performance fell below an objective standard of
reasonableness.
[
4
]
Defendant then sought leave to appeal in this Court.
MCR 7.211(C)(1) states that a motion to remand “must be supported
by affidavit or offer of proof regarding the facts to be established at a
hearing.” An offer of proof is “[a] presentation of evidence for the
record....”
5
An affidavit is defined as “[a] written or printed declara-
tion or statement of facts, made voluntarily, and confirmed by the oath or
1
People v Ybarra, unpublished order of the Court of Appeals, entered
July 12, 2011 (Docket No. 301243).
2
People v Ybarra, unpublished opinion per curiam of the Court of
Appeals, issued December 13, 2011 (Docket No. 301243).
3
Ybarra, unpub op at 3, citing People v McCauley, 287 Mich App 158,
162 (2010).
4
Ybarra, unpub op at 3 (citations omitted).
5
Black’s Law Dictionary (7th ed).
O
RDERS IN
C
ASES
863
affirmation of the party making it, taken before a person having
authority to administer such oath or affirmation.”
6
Although titled an “affidavit,” defendant’s unnotarized statement
fails to meet the procedural requirements of MCR 7.211(C)(1). That is,
not being notarized or otherwise having been taken before a person
having authority to administer an oath or affirmation, the document
carries no more weight than a letter outlining defendant’s complaints
about his trial counsel. And as such, defendant failed to make a sufficient
offer of proof of the evidence to be established at a hearing.
Because of defendant’s failure to comply with the clear standards for
obtaining an evidentiary hearing, the Court of Appeals correctly denied
his motion for remand. Neither this issue nor defendant’s remaining
claims of error warrant relief, so I therefore concur in the denial of
defendant’s application for leave.
In re R
USSELL
, No. 145716; Court of Appeals No. 303586.
P
EOPLE V
A
RMIJO
, No. 145897; Court of Appeals No. 308361.
Summary Disposition October 4, 2012:
P
EOPLE V
G
IOGLIO
, No. 145091; reported below: 296 Mich App 12. Pur-
suant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we vacate the
maximum sentences imposed by the Kalamazoo Circuit Court, and we
remand this case to the trial court for resentencing. The court failed to
recognize that it had discretion to set the maximum sentences under MCL
769.10. See People v Bonilla-Machado, 489 Mich 412 (2011); People v
Turski, 436 Mich 878 (1990). In all other respects, leave to appeal is denied.
A
QUILINA V
F
IFTH
T
HIRD
B
ANK
, No. 145210; Court of Appeals No.
300712. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we reverse the judgment of the Court of Appeals, for the reasons
stated in the Court of Appeals dissenting opinion, and we reinstate the
September 29, 2010, order of the Ingham Circuit Court granting sum-
mary disposition to the defendant.
Leave to Appeal Granted October 4, 2012:
M
ALPASS V
D
EPARTMENT OF
T
REASURY
, Nos. 144430, 144431, and 144432;
reported below: 295 Mich App 263. We further order that this case be
argued and submitted to the Court together with the cases of Wheeler
Estate v Department of Treasury (Docket Nos. 145367, 145368, 145369,
and 145370), at such future session of the Court as the cases are ready for
submission.
The Taxation Section of the State Bar of Michigan is invited to file a
brief amicus curiae. Other persons or groups interested in the determi-
6
Black’s Law Dictionary (6th ed).
864 493 M
ICHIGAN
R
EPORTS
nation of the issue presented in this case may move the Court for
permission to file briefs amicus curiae.
W
HEELER
E
STATE V
D
EPARTMENT OF
T
REASURY
,H
UZELLA V
D
EPARTMENT OF
T
REASURY
,W
RIGHT V
D
EPARTMENT OF
T
REASURY
, and W
HEELER V
D
EPARTMENT
OF
T
REASURY
, Nos. 145367, 145368, 145369, and 145370; reporter below:
297 Mich App 411. We further order that these cases be argued and
submitted to the Court together with the cases of Malpass v Department
of Treasury (Docket Nos. 144430, 144431, and 144432), at such future
session of the Court as the cases are ready for submission.
The Taxation Section of the State Bar of Michigan is invited to file a
brief amicus curiae. Other persons or groups interested in the determi-
nation of the issues presented in this case may move the Court for
permission to file briefs amicus curiae.
Order Granting Oral Argument in Case Pending on Application for Leave
to Appeal Entered October 4, 2012:
L
EFEVERS V
S
TATE
F
ARM
M
UTUAL
A
UTOMOBILE
I
NSURANCE
C
OMPANY
, No.
144781; Court of Appeals No. 298216. We direct the Clerk to schedule
oral argument on whether to grant the application or take other action.
MCR 7.302(H)(1). At oral argument, the parties shall address whether
the tailgate on the plaintiff’s dump trailer was “equipment permanently
mounted on the vehicle” for purposes of MCL 500.3106(1)(b), and, if so,
whether the plaintiff’s injury was “a direct result of physical contact
with” the tailgate. The parties may file supplemental briefs within 35
days of the date of this order, but they should not submit mere
restatements of their application papers.
M
ARILYN
K
ELLY
, J., would deny leave to appeal.
Leave to Appeal Denied October 4, 2012:
P
EOPLE V
W
HATMAN
, No. 142862; Court of Appeals No. 293732.
P
EOPLE V
JDR
OBINSON
, No. 144587; Court of Appeals No. 300060.
C
AVANAGH
, J., would grant leave to appeal.
In re A
TTORNEY
F
EES OF
A
TCHINSON AND
H
ARTMAN
(P
EOPLE V
M
ERRIMAN
),
No. 144733; Court of Appeals No. 292281.
M
ORRIS V
M
ORRIS
, No. 144752; Court of Appeals No. 305208.
P
EOPLE V
S
TANLEY
J
ONES
, No. 144797; Court of Appeals No. 297690.
T
HOM V
P
ALUSHAJ
, No. 144840; Court of Appeals No. 301568.
P
EOPLE V
R
YAN
, No. 144870; reported below: 295 Mich App 388.
P
EOPLE V
E
TCHIE
, No. 144872; Court of Appeals No. 301497.
P
EOPLE V
M
ANN
, No. 144880; Court of Appeals No. 307567.
O
RDERS IN
C
ASES
865
G
ROSSE
I
LE
T
OWNSHIP V
B
RITTAIN
, No. 144902; Court of Appeals No.
303792.
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would grant leave to appeal.
P
EOPLE V
C
ODY
N
ELSON
, No. 144909; Court of Appeals No. 301284.
C
AVANAGH
, J., would grant leave to appeal.
D
UFFIELD V
S
UBURBAN
M
OBILITY
A
UTHORITY FOR
R
EGIONAL
T
RANSPORTATION
,
No. 144916; Court of Appeals No. 305778.
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would grant leave to appeal.
P
EOPLE V
H
ARDGES
, No. 144963; Court of Appeals No. 293334.
B
RONSON
M
ETHODIST
H
OSPITAL V
A
UTO
O
WNERS
I
NSURANCE
C
OMPANY
, No.
144967; Court of Appeals No. 300229.
US M
OTORS V
G
ENERAL
M
OTORS
E
UROPE
, No. 145002; Court of Appeals
No. 299901.
K
OSS V
A
HEPA
371 II, I
NC
, No. 145003; Court of Appeals No. 301203.
C
HRYSLER
F
INANCIAL
S
ERVICES
A
MERICAS
,LLCvD
EPARTMENT OF
T
REASURY
,
No. 145037; Court of Appeals No. 302299.
P
EOPLE V
C
HEN
, No. 145270; Court of Appeals No. 301153.
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would grant leave to appeal.
Leave to Appeal Granted October 5, 2012:
In re B
RADLEY
E
STATE
, No. 145055; reported below: 296 Mich App
31. The parties shall address whether the Court of Appeals erred by
reversing the Kent Circuit Court’s ruling that the petitioner’s claim for
civil contempt indemnification damages under MCL 600.1721 is barred
by the government tort liability act, MCL 691.1401 et seq.
The motions for leave to file brief amicus curiae of the Michigan
Sheriffs’ Association, the Michigan Municipal League, the Michigan
Municipal League Liability & Property Pool, the Michigan Townships
Association, and the Public Corporation Law Section of the State Bar of
Michigan are granted. Other persons or groups interested in the deter-
mination of the issue presented in this case may move the Court for
permission to file briefs amicus curiae.
M
ARILYN
K
ELLY
, J., would deny leave to appeal.
Order Granting Oral Argument in Case Pending on Application for Leave
to Appeal Entered October 5, 2012:
H
OFFMAN V
B
ARRETT
, No. 144875; reported below: 295 Mich App
649. We direct the Clerk to schedule oral argument on whether to grant
the application or take other action. MCR 7.302(H)(1). At oral argument,
the parties shall address whether the plaintiff’s complaint should have
been dismissed with prejudice because her notice of intent did not comply
with MCL 600.2912b(4). The parties may file supplemental briefs within
866 493 M
ICHIGAN
R
EPORTS
35 days of the date of this order, but they should not submit mere
restatements of their application papers.
M
ARILYN
K
ELLY
, J., would deny leave to appeal.
Leave to Appeal Denied October 5, 2012:
P
EOPLE V
C
RAIGHEAD
, No. 144415; Court of Appeals No. 301465.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant leave to
appeal.
T
RIERWEILER V
G
ROSS
, No. 145758; Court of Appeals No. 308804.
Summary Disposition October 10, 2012:
P
EOPLE V
S
TANLEY
D
UNCAN
and P
EOPLE V
V
ITA
D
UNCAN
, Nos. 145974 and
145975; Court of Appeals Nos. 312637 and 312638. Pursuant to MCR
7.302(H)(1), in lieu of granting leave to appeal, we remand these cases to
the Court of Appeals for consideration as on leave granted. We direct the
Court of Appeals to expedite its consideration of these cases.
The motion for stay is granted. Trial court proceedings are stayed
pending the completion of this appeal. On motion of a party or on its own
motion, the Court of Appeals may modify, set aside, or place conditions on
the stay if it appears that the appeal is not being vigorously prosecuted or
if other appropriate grounds appear.
Leave to Appeal Denied October 12, 2012:
In re P
ALACIOS
, No. 145781; Court of Appeals No. 308447.
S
IMON V
S
IMON
, No. 145782; Court of Appeals No. 308528.
D
AVIS V
P
ARKER
, No. 145917; Court of Appeals No. 312064.
Summary Disposition October 22, 2012:
P
EOPLE V
M
ULL
, No. 145406; Court of Appeals No. 309452. Pursuant to
MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand this case
to the Court of Appeals for consideration as on leave granted.
Leave to Appeal Denied October 22, 2012:
H
ARDRICK V
A
UTO
C
LUB
I
NSURANCE
A
SSOCIATION
, No. 144421; reported
below: 294 Mich App 214.
P
EOPLE V
Z
OICA
, No. 144540; Court of Appeals No. 305338.
P
EOPLE V
H
AMIN
D
IXON
, No. 144546; Court of Appeals No. 300575.
O
RDERS IN
C
ASES
867
P
EOPLE V
G
REER
, No. 144551; Court of Appeals No. 305094.
P
EOPLE V
S
TALLWORTH
, No. 144567; Court of Appeals No. 306898.
P
EOPLE V
P
INDER
, No. 144624; Court of Appeals No. 306098.
W
ALGREEN
C
OMPANY V
RDC E
NTERPRISES
, LLC, No. 144651; Court of
Appeals No. 293608.
P
EOPLE V
D
UFRESNE
, No. 144653; Court of Appeals No. 305490.
P
EOPLE V
W
INSLOW
C
HAPMAN
, No. 144655; Court of Appeals No. 307263.
P
EOPLE V
M
URRAY
, No. 144663; Court of Appeals No. 306439.
P
EOPLE V
C
URRIE
, No. 144665; Court of Appeals No. 305882.
P
EOPLE V
P
HILLIP
T
OWNSEND
, No. 144761; Court of Appeals No. 303179.
P
EOPLE V
D
OTSON
, No. 144769; Court of Appeals No. 306233.
J
ACKSON V
J
ACKSON
, No. 144773; Court of Appeals No. 303916.
P
EOPLE V
C
ARL
D
IXON
, No. 144780; Court of Appeals No. 307048.
P
EOPLE V
W
HALEY
, No. 144802; Court of Appeals No. 304732.
P
EOPLE V
H
AROLD
R
OGERS
, No. 144820; Court of Appeals No. 306248.
P
EOPLE V
L
AMONT
D
IXON
, No. 144839; Court of Appeals No. 308055.
P
EOPLE V
K
EITH
J
ACKSON
, No. 144851; Court of Appeals No. 307648.
P
EOPLE V
B
OYKIN
, No. 144853; Court of Appeals No. 306990.
P
EOPLE V
S
ENSELY
, No. 144921; Court of Appeals No. 306152.
P
EOPLE V
R
ICHARD
S
ANDERS
, No. 144937; Court of Appeals No. 308814.
P
EOPLE V
M
ONTGOMERY
, No. 144948; Court of Appeals No. 308093.
P
EOPLE V
H
ARRIGER
, No. 144991; Court of Appeals No. 308260.
P
EOPLE V
M
ENDOZA
, No. 144998; Court of Appeals No. 308396.
P
EOPLE V
T
UCKER
, No. 144999; Court of Appeals No. 307491.
P
EOPLE V
B
RIAN
C
ARPENTER
, No. 145061; Court of Appeals No. 302231.
C
AVANAGH
, J., would grant leave to appeal.
P
EOPLE V
C
OFFIN
, No. 145123; Court of Appeals No. 306350.
P
EOPLE V
E
LLIS
M
ILLS
, No. 145124; Court of Appeals No. 307697.
P
EOPLE V
G
ANTT
, No. 145129; Court of Appeals No. 306345.
P
EOPLE V
B
URNETT
, No. 145138; Court of Appeals No. 307956.
P
EOPLE V
T
RENT
C
ARR
, No. 145149; Court of Appeals No. 307289.
868 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
O
VEGIAN
, No. 145155; Court of Appeals No. 308355.
A
NDERSON V
T
HOMPSON
, No. 145160; Court of Appeals No. 295317.
P
EOPLE V
P
ALMER
, No. 145169; Court of Appeals No. 302265.
R
AMSEY V
U
NIVERSITY OF
M
ICHIGAN
B
OARD OF
R
EGENTS
, No. 145171; Court
of Appeals No. 303794.
C
AVANAGH
, J., would grant leave to appeal.
P
EOPLE V
T
IMES
, No. 145184; Court of Appeals No. 307295.
P
EOPLE V
B
OWERS
, No. 145185; Court of Appeals No. 301811.
P
EOPLE V
W
ISE
, No. 145193; Court of Appeals No. 306507.
P
EOPLE V
C
UNNINGHAM
, No. 145195; Court of Appeals No. 306711.
P
EOPLE V
D
OSENBERRY
, No. 145198; Court of Appeals No. 309050.
P
EOPLE V
J
OHN
N
ORRIS
, No. 145200; Court of Appeals No. 306732.
P
EOPLE V
K
ALVIN
W
ASHINGTON
, No. 145213; Court of Appeals No. 305303.
P
EOPLE V
K
ERR
, No. 145215; Court of Appeals No. 308556.
P
EOPLE V
S
HULIE
J
ONES
, No. 145223; Court of Appeals No. 305551.
P
EOPLE V
L
ONGACRE
, No. 145232; Court of Appeals No. 308602.
P
EOPLE V
B
ERNARD
M
URPHY
, No. 145233; Court of Appeals No. 305255.
P
EOPLE V
C
ARLSON
, No. 145234; Court of Appeals No. 308583.
P
EOPLE V
W
ILLIAM
B
EDFORD
B
ROWN
, No. 145236; Court of Appeals No.
306543.
P
EOPLE V
H
ESLEY
, No. 145238; Court of Appeals No. 305576.
P
EOPLE V
T
READWELL
, No. 145246; Court of Appeals No. 306377.
P
EOPLE V
D
AVID
, No. 145281; Court of Appeals No. 308572.
P
EOPLE V
H
URTADO
-G
ARCIA
, No. 145293; Court of Appeals No. 304490.
P
EOPLE V
F
RIEDMAN
, No. 145295; Court of Appeals No. 308903.
P
EOPLE V
J
OHN
M
URPHY
, No. 145297; Court of Appeals No. 307390.
C
HAMBERLAIN V
M
ESSER
, No. 145302; Court of Appeals No. 307817.
P
EOPLE V
K
EITH
C
ARTER
, No. 145303; Court of Appeals No. 306919.
P
EOPLE V
D
UNIGAN
, No. 145304; Court of Appeals No. 300441.
P
EOPLE V
A
TCHISON
, No. 145305; Court of Appeals No. 303721.
P
EOPLE V
T
ILLERY
, No. 145306; Court of Appeals No. 305674.
B
URGLER V
S
NOW
, No. 145318; Court of Appeals No. 304073.
O
RDERS IN
C
ASES
869
P
EOPLE V
F
LORENCE
, No. 145322; Court of Appeals No. 306400.
MISS DIG S
YSTEM
,I
NC V
C
ITY OF
A
UBURN
H
ILLS
, No. 145323; Court of
Appeals No. 303059.
P
EOPLE V
C
HAUNCEY
P
HILLIPS
, No. 145324; Court of Appeals No. 309241.
P
EOPLE V
B
ROWNING
, No. 145326; Court of Appeals No. 306426.
P
EOPLE V
C
LAUSELL
, Nos. 145329, 145330, 145331, and 145332; Court of
Appeals Nos. 309665, 309666, 309667, and 309668.
P
EOPLE V
O
DOMS
, No. 145344; Court of Appeals No. 308188.
P
EOPLE V
A
NGELO
P
ARKS
, No. 145345; Court of Appeals No. 307550.
H
ERRY V
S
UBURBAN
M
OBILITY
A
UTHORITY FOR
R
EGIONAL
T
RANSPORTATION
,
No. 145348; Court of Appeals No. 303120.
P
EOPLE V
R
OBERT
W
ALKER
, No. 145355; Court of Appeals No. 304113.
P
EOPLE V
C
HARLES
S
MITH
, No. 145356; Court of Appeals No. 306914.
P
EOPLE V
W
ILCHER
, No. 145357; Court of Appeals No. 301487.
P
EOPLE V
N
ICHOL
, No. 145361; Court of Appeals No. 302400.
P
EOPLE V
M
ANOKU
, No. 145378; Court of Appeals No. 308018.
P
EOPLE V
R
AY
, No. 145380; Court of Appeals No. 307495.
P
EOPLE V
B
ETTS
, No. 145381; Court of Appeals No. 306629.
P
EOPLE V
R
IVET
, No. 145383; Court of Appeals No. 303531.
P
EOPLE V
R
ICHARDS
, No. 145384; Court of Appeals No. 308617.
P
EOPLE V
D
EVON
B
ELL
, No. 145402; Court of Appeals No. 295573.
P
EOPLE V
H
ALE
, No. 145405; Court of Appeals No. 309189.
P
EOPLE V
K
OWAL
, No. 145408; Court of Appeals No. 306365.
L
OWRY
H
OLDING
C
OMPANY
,I
NC V
G
EROCO
T
ECH
H
OLDING
C
ORP
, No.
145411; Court of Appeals No. 303694.
H
OME
D
EPOT
USA, I
NC V
S
TATE OF
M
ICHIGAN
, No. 145412; Court of
Appeals No. 301341.
P
EOPLE V
C
OLSON
, No. 145423; Court of Appeals No. 303545.
P
EOPLE V
A
L
-S
HARA
, No. 145427; Court of Appeals No. 303811.
P
EOPLE V
J
UMAR
A
LEXANDER
, No. 145430; Court of Appeals No. 302487.
M
OONEY V
A
RENDS
, No. 145440; Court of Appeals No. 302967.
P
EOPLE V
W
ILLIE
W
RIGHT
, No. 145441; Court of Appeals No. 302146.
P
EOPLE V
C
ALVIN
, No. 145443; Court of Appeals No. 303718.
870 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
H
ESS
, No. 145446; Court of Appeals No. 299753.
P
EOPLE V
K
EINONEN
, No. 145459; Court of Appeals No. 302102.
P
EOPLE V
R
EDMOND
, No. 145461; Court of Appeals No. 309642.
In re W
ATERS
D
RAIN
D
RAINAGE
D
ISTRICT
, No. 145470; reported below:
296 Mich App 214.
P
EOPLE V
D
USSEAU
, No. 145471; Court of Appeals No. 308979.
D
E
M
EYER V
S
HEETS
, No. 145479; Court of Appeals No. 303804.
P
EOPLE V
H
OOD
, No. 145483; Court of Appeals No. 302948.
P
EOPLE V
A
NTHONY
D
AVIS
, No. 145485; Court of Appeals No. 303716.
S
IMPSON V
JPM
ORGAN
C
HASE
B
ANK
, NA, No. 145493; Court of Appeals
No. 302800.
D
ANIEL V
P
UBLIC
S
TORAGE
I
NCORPORATED
, No. 145495; Court of Appeals
No. 301563.
P
EOPLE V
M
ORTON
, No. 145498; Court of Appeals No. 294823.
P
EOPLE V
R
OSSELL
, No. 145505; Court of Appeals No. 308039.
P
EOPLE V
I
NMAN
, No. 145523; Court of Appeals No. 308143.
P
EOPLE V
B
RIDGES
, No. 145524; Court of Appeals No. 301911.
P
EOPLE V
C
OUSINS
, No. 145525; Court of Appeals No. 310209.
P
EOPLE V
R
ICKY
M
OORE
, No. 145526; Court of Appeals No. 299287.
P
EOPLE V
D
EANDRAE
M
ILLER
, No. 145527; Court of Appeals No. 310064.
L
A
S
ALLE
B
ANK
N
ATIONAL
A
SSOCIATION V
M
URRAY
, No. 145541; Court of
Appeals No. 305218.
P
EOPLE V
B
ROUGHTON
, No. 145546; Court of Appeals No. 308288.
K
INCAID V
C
ITY OF
F
LINT
, No. 145550; Court of Appeals No. 310221.
P
EOPLE V
W
ENDELL
C
OOPER
, No. 145571; Court of Appeals No. 304043.
S
ALLIE V
F
IFTH
T
HIRD
B
ANK
, No. 145576; reported below: 297 Mich App
115.
V
AN
E
LSLANDER V
T
HOMAS
S
EBOLD
&A
SSOCIATES
,I
NC
, Nos. 145606 and
145644; reported below: 297 Mich App 204.
C
AVANAGH
, J., concurred in the denial of leave but would have
reinstated the trial court’s award of attorney fees and costs and brought
an end to this protracted litigation.
V
ICTOR V
R
OSCOMMON
C
OUNTY
J
UDGE
, No. 145655; Court of Appeals No.
308891.
O
RDERS IN
C
ASES
871
Superintending Control Denied October 22, 2012:
H
OUSTON V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 142994.
B
ALLARD V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 145487.
Reconsideration Denied October 22, 2012:
P
EOPLE V
F
ARNEN
, No. 144227; Court of Appeals No. 306121. Leave to
appeal denied at 492 Mich 852.
G
ENTRY V
W
AYNE
C
OUNTY
D
EPUTY
S
HERIFF
, No. 144355; Court of Appeals
No. 296580. Leave to appeal denied at 491 Mich 933.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant reconsid-
eration and, on reconsideration, would grant leave to appeal.
P
EOPLE V
S
TARKS
, No. 144433; Court of Appeals No. 304007. Leave to
appeal denied at 492 Mich 853.
ETM
AC
K
ENZIE
C
OV
RBS C
ONSTRUCTION
,I
NC
, No. 144499; Court of
Appeals No. 297406. Leave to appeal denied at 492 Mich 857.
P
EOPLE V
P
ENNY
, No. 144541; Court of Appeals No. 307301. Leave to
appeal denied at 492 Mich 865.
P
EPPLER V
P
EPPLER
A
GENCY
,I
NC
, No. 144815; Court of Appeals No.
300194. Leave to appeal denied at 492 Mich 855.
L
IVINGSTON V
H
UNTINGTON
M
ORTGAGE
, No. 144881; Court of Appeals No.
302075. Leave to appeal denied at 492 Mich 855.
P
EOPLE V
C
HARLES
B
ROWN
, No. 144940; Court of Appeals No.
299459. Leave to appeal denied at 492 Mich 856.
GE M
ONEY
B
ANK V
H
ADDAD
, No. 145010; Court of Appeals No.
306506. Leave to appeal denied at 492 Mich 857.
P
EOPLE V
W
ALTON
, No. 145120; Court of Appeals No. 305956. Leave to
appeal denied at 492 Mich 868.
Leave to Appeal Denied October 23, 2012:
P
EOPLE V
B
RAME
, No. 146004; Court of Appeals No. 311404.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would vacate that part of
the Macomb Circuit Court’s June 29, 2012, order addressing the prosecu-
tion’s evidence offered under MRE 404(b)(2) and would remand this case to
permit the trial court, at its discretion, to allow the prosecution to submit a
proper notice of intent to introduce other acts evidence.
Summary Disposition October 24, 2012:
P
EOPLE V
D
EDRICK
M
C
C
AULEY
, No. 140422; reported below: 287 Mich App
872 493 M
ICHIGAN
R
EPORTS
158. By order of January 12, 2011, the application for leave to appeal the
January 19, 2010, judgment of the Court of Appeals was held in abeyance
pending the decision in Lafler v Cooper, cert gtd 562 US ___; 131 S Ct 856
(2011). On order of the Court, the case having been decided on March 21,
2012, 566 US ___; 132 S Ct 1376; 182 L Ed 2d 398 (2012), the application
is again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting
leave to appeal, we reverse the judgment of the Court of Appeals, we
vacate the judgment of sentence of the Wayne Circuit Court, and we
remand this case to the trial court for consideration of an appropriate
remedy in light of Lafler. The trial court did not clearly err in concluding
that defense counsel was ineffective, and if the defendant had been
properly advised of the prosecutor’s aiding and abetting theory, that
there was a reasonable probability that the defendant would have
accepted the prosecutor’s plea offer. On remand, the prosecutor shall
reoffer the plea proposal, and once this has occurred, the trial court may
“exercise discretion in deciding whether to vacate the conviction from
trial and accept the plea or leave the conviction undisturbed.” Lafler, 566
US at ___; 132 S Ct at 1389. In exercising that discretion, the trial court
may consider the defendant’s willingness to accept responsibility for his
actions, and it may also consider any information concerning the crime
that was discovered after the plea offer was made to fashion a remedy
that does not require the prosecution to incur the expense of conducting
a new trial. Id. at ___; 132 S Ct at 1389.
In re TD, No. 143624; reported below: 292 Mich App 678. Pursuant to
MCR 7.302(H)(1), in lieu of granting leave to appeal, we vacate the
judgment of the Court of Appeals and dismiss this application as moot.
Respondent was removed from the sex offender registry by order of the
Washtenaw Circuit Court on September 14, 2011, and is no longer
required to register under the amended Sex Offenders Registration Act,
MCL 28.721 et seq. Accordingly, the issue whether it would be constitu-
tional to compel his registration has been rendered moot.
B
URRIS V
KAM T
RANSPORT
,I
NC
, No. 144386; Court of Appeals No.
303104. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration as
on leave granted.
M
ARILYN
K
ELLY
, J., would deny leave to appeal.
T
ITAN
I
NSURANCE
C
OMPANY V
A
UTO
-O
WNERS
I
NSURANCE
C
OMPANY
, No.
145007; Court of Appeals No. 302191. Pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we vacate the judgment of the Court of
Appeals, and we remand this case to the Court of Appeals for reconsid-
eration in light of Titan Ins Co v Hyten, 491 Mich 547 (2012).
P
EOPLE V
J
EFFREY
D
AVIS
, No. 145254; Court of Appeals No.
308922. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration as
on leave granted.
In re M
C
C
REE
, No. 145895. The Judicial Tenure Commission has
issued a decision and recommendation, to which the respondent, Honor-
O
RDERS IN
C
ASES
873
able Wade H. McCree, 3d Circuit Court Judge, consents. It is accompa-
nied by a settlement agreement, in which the respondent waived his
rights, stipulated to findings of fact and conclusions of law, and consented
to a sanction of public censure.
In resolving this matter, we are mindful of the standards set forth in
In re Brown, 461 Mich 1291, 1292-1293 (2000):
[E]verything else being equal:
(1) misconduct that is part of a pattern or practice is more
serious than an isolated instance of misconduct;
(2) misconduct on the bench is usually more serious than the
same misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration
of justice is more serious than misconduct that is prejudicial only
to the appearance of propriety;
(4) misconduct that does not implicate the actual administra-
tion of justice, or its appearance of impropriety, is less serious than
misconduct that does;
(5) misconduct that occurs spontaneously is less serious than
misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice
system to discover the truth of what occurred in a legal contro-
versy, or to reach the most just result in such a case, is more
serious than misconduct that merely delays such discovery;
(7) misconduct that involves the unequal application of justice
on the basis of such considerations as race, color, ethnic back-
ground, gender, or religion are more serious than breaches of
justice that do not disparage the integrity of the system on the
basis of a class of citizenship.
In the present case, those standards are being applied in the context
of the following stipulated findings of fact of the Judicial Tenure
Commission, which, following our de novo review, we adopt as our own:
1. Respondent is, and at all material times was, a judge of the
3rd Circuit Court in Detroit, Michigan.
2. As a judge, he is subject to all the duties and responsibilities
imposed on judges by the Michigan Supreme Court, and he is
subject to the standards for discipline set forth in MCR 9.104 and
MCR 9.205.
3. On Sunday, June 6, 2010, Respondent used his cell phone to
make a digital image of himself after completing a half-marathon
and captioned the photograph “2010 Dexter-Ann Arbor race. Fit in
my 50’s.”
4. A copy of the digital image is attached to the last page of the
Settlement Agreement.
5. Respondent showed the digital image to a number of people,
including his family, police officers, and deputies who worked in or
passed through his courtroom.
874 493 M
ICHIGAN
R
EPORTS
6. Corporal LaDawnn Malone, a 24-year veteran of the Wayne
County Sheriff’s Department, serves as a “floater,” filling in where
necessary at the Wayne County Circuit Court.
7. Corporal Malone received the digital image on her cell
phone.
8. Respondent believes he sent the digital image to Corporal
Malone either at her request or on his own after Corporal Malone
and Respondent discussed the image, approximately a year after it
was made, although he has no specific recollection of doing so.
9. If called as a witness, Corporal Malone would testify that she
retained the digital image as inspiration to motivate her to
improve her workouts and eating habits.
10. Corporal Malone’s husband provided a copy of the digital
image to Charlie LeDuff, a reporter for the Fox 2 television station.
11. On April 23, 2012, Mr. LeDuff interviewed Respondent in
Respondent’s chambers.
12. During the interview, Respondent conducted himself in a
flippant manner and did not give the interview the seriousness he
should have. As a result, he brought shame and obloquy to the
judiciary. For example, when discussing the digital image of him he
said, “There is no shame in my game.”
13. The interview, and the digital image, spread rapidly around
the internet and became the subject of jokes and ridicule.
14. The same week, Respondent issued a statement which
acknowledged, “Clearly, I made an extremely serious error in
judgment. I am embarrassed and totally sorry.”
We also adopt the commission’s conclusion that these facts demon-
strate, by a preponderance of the evidence, that respondent breached the
standards of judicial conduct in the following ways:
(a) Misconduct in office, as defined by the Michigan Constitu-
tion of 1963, as amended, Article 6, Section 30, and MCR 9.205;
(b) Failure to establish, maintain, enforce and personally
observe high standards of conduct so that the integrity and
independence of the judiciary may be preserved, contrary to the
Code of Judicial Conduct, Canon 1;
(c) Irresponsible or improper conduct which erodes public
confidence in the judiciary, in violation of the Code of Judicial
Conduct, Canon 2A;
(d) Conduct involving impropriety and the appearance of
impropriety, in violation of the Code of Judicial Conduct, Canon
2A;
(e) A failure to willingly and freely accept restrictions on
conduct, present due to constant public scrutiny, that might be
viewed as burdensome on the ordinary citizen, Canon 2A;
(f) Conduct which exposes the legal profession or the courts to
obloquy, contempt, censure, or reproach, in violation of MCR
9.104(2); and
O
RDERS IN
C
ASES
875
(g) A lack of personal responsibility for his own behavior,
contrary to MCR 9.205(A).
After reviewing the recommendation of the Judicial Tenure Commis-
sion, the settlement agreement, the standards set forth in Brown, and the
above findings of fact and conclusions of law, we accept the recommen-
dation of the commission and order that Honorable Wade H. McCree be
publicly censured. This order stands as our public censure.
H
ATHAWAY
, J., did not participate because she has a professional
relationship with a member of a law firm involved in this matter.
Leave to Appeal Granted October 24, 2012:
P
EOPLE V
J
OHNNY
W
ILLIAMS
, No. 144762; Court of Appeals No.
299484. On order of the Court, the application for leave to appeal the
January 19, 2012, judgment of the Court of Appeals is considered, and it
is granted, limited to the issue whether offense variable 19 (interference
with the administration of justice) was correctly scored.
We further order the Wayne Circuit Court, in accordance with
Administrative Order No. 2003-03, to determine whether the defendant
is indigent and, if so, to appoint Neil J. Leithauser, if feasible, to represent
the defendant in this Court. If this appointment is not feasible, the trial
court shall, within the same time frame, appoint other counsel to
represent the defendant in this Court.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issue
presented in this case may move the court for permission to file briefs
amicus curiae.
P
EOPLE V
J
EFFERY
D
OUGLAS
, No. 145646; reported below: 296 Mich App
186. The parties shall include among the issues to be briefed (1) whether
the Court of Appeals erred in concluding that the defendant was
prejudiced by his attorney’s failure to inform him of a mandatory
minimum sentence if convicted of the charged offense where the trial
court determined that the defendant refused plea offers because he
claimed to be innocent; (2) whether the remedy for ineffective assistance
of counsel may include re-offering a plea bargain to a lesser charge after
the defendant has testified at a trial that he did not commit an offense;
(3) under MRE 803A(3), what circumstances other than “fear” may
excuse the failure of a child to report sexual abuse immediately; (4)
whether a second corroborative statement concerning sexual abuse is
admissible under MRE 803A where the statement includes a different
allegation of sexual abuse than was provided in the declarant’s first
statement; and (5) whether a witness’s testimony that a child’s state-
ment was “substantiated” constitutes improper vouching. The motion for
bond is denied.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus curiae.
876 493 M
ICHIGAN
R
EPORTS
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
Leave to Appeal Denied October 24, 2012:
P
EOPLE V
E
BRAHIMI
, No. 145101; Court of Appeals No. 305747.
P
EOPLE V
I
VES
, No. 145148; Court of Appeals No. 302625.
P
EOPLE V
E
MORY
, No. 145152; Court of Appeals No. 303824.
P
EOPLE V
B
YNUM
, No. 145191; Court of Appeals No. 304004.
C
LIFTON V
J
OHNSON
, No. 145401; Court of Appeals No. 310760.
P
EOPLE V
K
LOOSTERMAN
, No. 145439; reported below: 296 Mich App 636.
P
EOPLE V
B
RANTLEY
, No. 145456; reported below: 296 Mich App 546.
L
EELANAU
C
OUNTY
S
HERIFF V
K
IESSEL
, No. 145691; reported below: 297
Mich App 285.
Rehearing Denied October 24, 2012:
A
TKINS V
S
UBURBAN
M
OBILITY
A
UTHORITY FOR
R
EGIONAL
T
RANSPORTATION
,
No. 140401. Reported at 492 Mich 707.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant rehearing.
Summary Disposition October 26, 2012:
C
ONVERSE V
A
UTO
C
LUB
G
ROUP
I
NSURANCE
C
OMPANY
, No. 142917; Court of
Appeals No. 293303. By order of September 6, 2011, the application for
leave to appeal the March 3, 2011, judgment of the Court of Appeals was
held in abeyance pending the decision in Joseph v ACIA (Docket No.
142615). On order of the Court, the case having been decided on May 15,
2012, Joseph v Auto Club Ins Ass’n, 491 Mich 200 (2012), the application
is again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting
leave to appeal, we reverse in part the judgment of the Court of Appeals.
For the reasons stated in the Court of Appeals dissenting opinion, the
Calhoun Circuit Court erred in dismissing plaintiff’s Michigan Consumer
Protection Act (MCPA) claims. MCL 445.911(7) of the MCPA provides, in
pertinent part:
An action under this section shall not be brought more than 6
years after the occurrence of the method, act, or practice which is
the subject of the action nor more than 1 year after the last
payment in a transaction involving the method, act, or practice
which is the subject of the action, whichever period of time ends at
a later date.
O
RDERS IN
C
ASES
877
Because plaintiff brought this action within one year of the last payment,
plaintiff’s action was timely filed and thus plaintiff can seek to recover
damages resulting from the methods, acts or practices violative of the
MCPA based on conduct by defendant occurring from July 29, 1992, to
March 28, 2001 (the effective date of MCL 445.904(3)). In all other
respects, leave to appeal is denied.
M
ARILYN
K
ELLY
, J., would reverse the lower court’s application of the
one-year-back rule in MCL 500.3145(1) for the reasons set forth in her
dissenting opinion in Joseph v Auto Club Ins Ass’n, 491 Mich 200,
223-226 (2012).
P
EOPLE V
C
RABTREE
, No. 145105; Court of Appeals No. 302583. In lieu
of granting leave to appeal, we reverse that part of the Court of Appeals’
judgment addressing the assessment of points for offense variable (OV) 1,
MCL 777.31, and OV 2, MCL 777.32, we vacate the sentence of the
Hillsdale Circuit Court, and we remand this case to the trial court for
resentencing in light of the Court of Appeals’ decision in People v Ball,
297 Mich App 121 (2012). In all other respects, leave to appeal is denied.
Order Remanding Case to the Judicial Tenure Commission Entered
October 26, 2012:
In re M
ORROW
, No. 145257. On order of the Court, the Judicial Tenure
Commission having filed a decision and recommendation on the basis of
an agreement between the commission and the respondent judge, we
reject the recommendation on the ground that the proposed discipline is
insufficient in light of the facts presented to the Court. The standards set
forth in In re Brown, 461 Mich 1291, 1292-1293 (2000), provide that
misconduct on the bench is usually more serious than the same miscon-
duct off the bench, that deliberate misconduct is more serious than
spontaneous misconduct, that misconduct prejudicial to the actual ad-
ministration of justice is more serious than conduct that is not, and that
conduct that undermines the ability of the justice system to discover the
truth of what occurred in a legal controversy is more serious than
conduct that merely delays such discovery. Here, respondent’s actions
occurred on the bench and, as found by the commission, were premedi-
tated, constituted misconduct actually prejudicial to the administration
of justice, and undermined the ability of the justice system to discover the
truth of what occurred in a legal controversy.
We remand this matter to the Judicial Tenure Commission for further
proceedings. The commission shall present either a new recommendation
or a status report to this Court within 42 days of the date of this order.
We retain jurisdiction.
C
AVANAGH
and H
ATHAWAY
, JJ., would enter an order of public censure
as recommended by the Judicial Tenure Commission.
Leave to appeal Denied October 26, 2012:
P
EOPLE V
A
MANDA
B
ALL
, No. 145668; reported below: 297 Mich App 121.
878 493 M
ICHIGAN
R
EPORTS
G
RIFFIN V
G
RIFFIN
, No. 145777; Court of Appeals No. 305889.
M
ILLER V
M
ILLER
, No. 145872; Court of Appeals No. 308215.
Summary Disposition October 31, 2012:
36
TH
D
ISTRICT
C
OURT V
M
ICHIGAN
A
MERICAN
F
EDERATION OF
S
TATE
,C
OUNTY
AND
M
UNICIPAL
E
MPLOYEES
C
OUNCIL
25, L
OCAL
917, No. 145147; reported
below: 295 Mich App 502. Pursuant to MCR 7.302(H)(1), in lieu of
granting leave to appeal, we reverse that portion of the Court of Appeals’
judgment that reversed the arbitrator’s award of reinstatement and back
pay for the grievants. The arbitrator and the Wayne Circuit Court
correctly found that MCR 3.106(C) does not preclude relief where the
collective bargaining agreement imposes a just cause standard for termi-
nation. In all other respects, leave to appeal is denied.
Leave to Appeal Granted October 31, 2012:
P
EOPLE V
S
MITH
-A
NTHONY
, No. 145371; reported below: 296 Mich App
413. The parties shall include among the issues to be briefed (1) whether the
evidence was sufficient to prove beyond a reasonable doubt that the crime of
larceny from the person, MCL 750.357, was committed within the “imme-
diate area of control or immediate presence” of the loss prevention officer
who witnessed the theft; (2) whether the 2004 amendment of the robbery
statute, 2004 PA 128 (amending MCL 750.530), altered the definition of
“presence” with respect to the larceny-from-the-person statute; and, if not
(3) whether the common-law definition of the phrase “from the person”
remains consistent with the common-law definition of “presence.”
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
P
EOPLE V
D
AVID
B
URNS
, No. 145604; Court of Appeals No. 304403. The
parties shall include among the issues to be briefed (1) whether the
trial court abused its discretion in admitting the complainant’s
out-of-court statements under the forfeiture-by-wrongdoing exception
to the hearsay rule set out in MRE 804(b)(6) and (2) whether the Court
of Appeals substituted its judgment for that of the trial court and, in
doing so, invaded the fact-finding authority vested in the trial court.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
Leave to Appeal Denied October 31, 2012:
P
EOPLE V
C
RUZ
-R
IVERA
, No. 144545; Court of Appeals No. 298786.
O
RDERS IN
C
ASES
879
B
RONSON
M
ETHODIST
H
OSPITAL V
H
OME
-O
WNERS
I
NSURANCE
C
OMPANY
and
B
RONSON
M
ETHODIST
H
OSPITAL V
A
UTO
-O
WNERS
I
NSURANCE
C
OMPANY
, Nos.
144858 and 144859; reported below: 295 Mich App 431.
P
EOPLE V
M
ALONE
, No. 144946; Court of Appeals No. 300433.
W
ESTFIELD
I
NSURANCE
C
OMPANY V
K
EN
’
S
S
ERVICE
, No. 144966; reported
below: 295 Mich App 610.
C
AVANAGH
and M
ARILYN
K
ELLY
, JJ., would grant leave to appeal.
H
ATHAWAY
, J., did not participate because she has a professional
relationship with a member of a law firm involved in this matter.
P
EOPLE V
M
AYEN
, No. 145049; Court of Appeals No. 301505.
M
ARILYN
K
ELLY
, J., would grant leave to appeal.
G
RIEVANCE
A
MINISTRATOR V
P
LANTS
, No. 145103.
N
ICHOLSON V
C
ITIZENS
I
NSURANCE
C
OMPANY OF
A
MERICA
and W
ILLOWBROOK
R
EHABILITATION
S
ERVICES V
L
ERNER
, Nos. 145225 and 145226; Court of
Appeals Nos. 300592 and 303885.
H
ATHAWAY
, J., did not participate because she has a professional
relationship with a member of a law firm involved in this matter.
S
ALEM
S
PRINGS,
LLCvS
ALEM
T
OWNSHIP
, No. 146002; Court of Appeals
No. 312497.
Summary Disposition November 7, 2012:
P
EOPLE V
G
RISSOM
, No. 140147. Reported at 492 Mich 296. On July 31,
2012, the Court issued an opinion reversing the judgment of the Court of
Appeals and remanding this case to the St. Clair Circuit Court for applica-
tion of People v Cress, 468 Mich 678 (2003), while directing the circuit court
to submit its determination to this Court within 60 days. People v Grissom,
492 Mich 296 (2012). On order of the Court, the circuit court’s opinion and
order granting the defendant’s motion for a new trial having been received,
we affirm the September 25, 2012 order of the St. Clair Circuit Court and we
remand this case to that court for further proceedings. We do not retain
jurisdiction.
Y
OUNG
, C.J., concurred in the result because the circuit court did not
abuse its discretion in granting the defendant’s motion for a new trial,
but continued to adhere to the analysis set forth in Justice Z
AHRA
’s
opinion in this case, People v Grissom, 492 Mich 296, 342 (2012) (Z
AHRA
,
J., concurring in part and dissenting in party).
Z
AHRA
, J., joined the statement of Y
OUNG
, C.J.
H
ARKINS V
D’A
GOSTINI
, No. 145288; Court of Appeals No. 301576. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we vacate that
portion of the Court of Appeals’ decision relating to plaintiffs D’Agostini’s
and Small’s (hereinafter plaintiffs) malpractice claims, and we remand this
case to the Wayne Circuit Court for further proceedings not inconsistent
with this order. Plaintiffs lack standing to pursue legal malpractice claims
predicated upon duties allegedly breached by defendants in representing
plaintiffs’ employer, the 48th District Court. See Beaty v Hertzberg Golden,
PC, 456 Mich 247, 253 (1997). On remand, the circuit court shall grant
defendants’ motion for summary disposition to the extent plaintiffs’ com-
plaint is based on allegations relating to claims the 48th District Court could
have brought and deny the motion for summary disposition to the extent
880 493 M
ICHIGAN
R
EPORTS
plaintiffs allege independent claims of legal malpractice. The application for
leave to appeal as cross-appellants is considered, and it is denied. We do not
retain jurisdiction.
C
AVANAGH
, J., did not participate due to a familial relationship with a
member of a law firm involved in this matter.
H
ATHAWAY
, J., did not participate because she has a professional
relationship with a member of a law firm involved in this matter.
P
EOPLE V
B
UCKNER
, No. 145328; Court of Appeals No. 308946. Pursuant
to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand this case
to the Court of Appeals for consideration as on leave granted.
Leave to Appeal Granted November 7, 2012:
W
OODBURY V
R
ES
-C
ARE
P
REMIER
,I
NC
, No. 144721; reported below: 295
Mich App 232. The parties shall include among the issues to be briefed (1)
whether the common law doctrines of de facto corporation, see, e.g., Bergy
Bros, Inc v Zeeland Feeder Pig, Inc, 415 Mich 286 (1982), and corporation
by estoppel, see, e.g., Stott v Stott Realty Co, 288 Mich 35, 48 (1939), survived
enactment of the Nonprofit Corporation Act, MCL 450.2101 et seq.; (2) if so,
whether plaintiff corporation, Center Woods, Inc., which was administra-
tively dissolved in 1993 under § 922 of the Nonprofit Corporation Act, MCL
450.2922, but reinstated in 2009 under § 925, MCL 450.2925, continued to
exist as a de facto corporation during the period of dissolution such that
defendant Ruth Averill, a member and shareholder of the corporation, was
required to provide notice to the corporation pursuant to its articles of
agreement of the pending sale of her property; and (3) whether Averill is
estopped to deny the existence of the corporation, see Estey Mfg Co v
Runnels, 55 Mich 130 (1884); Flueling v Goeringer, 240 Mich 372 (1927).
Leave to Appeal Denied November 7, 2012:
P
EOPLE V
A
LAN
T
HOMPSON
, No. 141956; Court of Appeals No. 292280.
P
EOPLE V
B
EVERLEY
, No. 142252; Court of Appeals No. 293279.
M
ARILYN
K
ELLY
, J., would grant leave to appeal.
P
EOPLE V
I
SADORE
D
EAN
, No. 143152; Court of Appeals No. 296183.
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would remand this case to the Court of
Appeals for reconsideration in light of People v Vaughn, 491 Mich 642
(2012).
P
EOPLE V
A
NDRE
E
DWARDS
, No. 143502; Court of Appeals No. 294826.
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would remand this case to the Court of
Appeals for reconsideration in light of People v Vaughn, 491 Mich 642
(2012).
P
EOPLE V
C
UMMINGS
, No. 143805; Court of Appeals No. 297809.
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would remand this case to the Court of
Appeals for reconsideration in light of People v Vaughn, 491 Mich 642
(2012).
P
EOPLE V
R
EED
, No. 144273; Court of Appeals No. 297053.
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would remand this case to the trial
court for reconsideration of the mandatory sentence of life without parole
in light of Miller v Alabama, 567 US ___; 132 S Ct 2455 (2012).
P
EOPLE V
P
RYOR
, No. 144593; Court of Appeals No. 300935.
O
RDERS IN
C
ASES
881
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would remand this case to the Court of
Appeals for reconsideration in light of People v Vaughn, 491 Mich 642
(2012).
P
EOPLE V
V
ICTOR
W
ILSON
, No. 144595; Court of Appeals No. 296307.
C
AVANAGH
and M
ARILYN
K
ELLY
, JJ., would grant leave to appeal.
P
EOPLE V
T
IMOTHY
F
IELDS
, No. 144596; Court of Appeals No. 305415.
P
EOPLE V
H
ETTINGER
, No. 144975; Court of Appeals No. 297237.
M
IHALOVITS V
SDW H
OLDINGS
C
ORPORATION
, No. 145164; Court of Ap-
peals No. 304186.
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would grant leave to appeal.
P
EOPLE V
R
ODNEY
R
OBINSON
, No. 145190; Court of Appeals No. 306707.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant leave to
appeal.
E
ASTBROOK
H
OMES
,I
NC V
D
EPARTMENT OF
T
REASURY
, No. 145192; reported
below: 296 Mich App 336.
B
AKER V
A
UTOMOBILE
C
LUB OF
M
ICHIGAN
, Nos. 145217 and 145217; Court
of Appeals Nos. 295812 and 296340.
M
ARILYN
K
ELLY
and H
ATHAWAY
, JJ., would grant leave to appeal.
P
EOPLE V
S
WANIGAN
, No. 145260; Court of Appeals No. 303385.
P
EOPLE V
J
OSHUA
S
PENCER
, No. 145261; Court of Appeals No. 304422.
M
ARILYN
K
ELLY
, J., would grant leave to appeal.
P
EOPLE V
H
AMILTON
, No. 145263; Court of Appeals No. 309304.
P
EOPLE V
A
NTONIO
R
AMSEY
, No. 145319; Court of Appeals No. 302569.
P
EOPLE V
T
HAYER
, No. 145388; Court of Appeals No. 306676.
P
EOPLE V
L
EVIGNE
and P
EOPLE V
M
C
N
EIGHT
, Nos. 145759 and 145760;
reported below: 297 Mich App 278.
M
ARILYN
K
ELLY
and Z
AHRA
, JJ., would grant leave to appeal.
Superintending Control Denied November 7, 2012:
A
DAIR V
C
OURT OF
A
PPEALS
, No. 145181.
M
ARILYN
K
ELLY
, J., would grant superintending control.
Summary Disposition November 9, 2012:
P
EOPLE V
H
EYZA
, No. 141031; Court of Appeals No. 296313. Pursuant to
MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand this case to
the Macomb Circuit Court. On remand, the trial court shall verify that the
judgment of sentence reflects the plea agreement that was entered into by
the defendant and the prosecutor and shall conduct a hearing to determine
the proper amount of restitution owed by the defendant. In all other
respects, leave to appeal is denied.
M
ARILYN
K
ELLY
,J.(dissenting). Defendant suffers from mental illness
and physical limitations, which include a chronic back problem that inhibits
his ability to work. When he and his wife divorced, he was ordered to pay
support for their child. He did not pay it and was charged with failure to pay
support under MCL 750.165.
882 493 M
ICHIGAN
R
EPORTS
Before the matter came to trial, the judge, relying on People v Adams,
1
ruled that defendant was barred from presenting evidence showing his
inability to pay support. In Adams, the Court of Appeals explicitly
prohibited the use of evidence of a defendant’s inability to pay court-
ordered support in a felony nonsupport case. After the trial judge’s
ruling, defense counsel stated that defendant would accept the prosecu-
tor’s offer of a plea agreement. During the plea hearing, defendant told
the judge, “I paid when I was able to pay, Judge. I’m disabled.” Because
defendant acknowledged that there was an order directing him to pay
support with which he failed to comply, the court accepted his guilty plea.
Before sentencing, defendant moved to withdraw his plea. The court
denied his motion and imposed a probationary sentence along with costs.
The plea agreement indicated that if defendant paid 50 percent of the
overdue support balance ($136,863.44) within two years, the charge
would be reduced to attempted failure to pay child support. If he paid 80
percent of the amount due within two years, the charge would be reduced
to a 93-day misdemeanor. If he paid all of the amount due, the case would
be dismissed. The trial court commented that defendant’s “hope of
complying with any of those conditions is like slim, none and zero.” The
Court of Appeals denied defendant’s application for leave to appeal.
In People v Likine, a bare majority of this Court held that a defendant
charged with felony nonsupport may, on making the requisite evidentiary
showing, establish impossibility to pay as a defense.
2
I dissented and
would have held that the proper defense, one available in every other
jurisdiction in the country, is inability to pay.
3
The majority disagreed
but, in holding that impossibility to pay is a valid defense to felony
nonsupport, implicitly overruled Adams, which had found that no
defense existed.
At the time defendant entered his plea in this case, he was barred by
Adams from raising any defense whatsoever. His conviction at trial was
a certainty and a plea bargain was his only real alternative. This Court
should not rule that defendant waived a defense not available to him at
the time he pled guilty. In the interest of justice, this case should be
remanded in light of Likine to allow defendant to withdraw his plea and
go to trial so that he may raise an impossibility-to-pay defense.
C
AVANAGH
and H
ATHAWAY
, JJ., joined the statement of M
ARILYN
K
ELLY
,J.
P
EOPLE V
V
AUGHN
M
ITCHELL
, No. 144239; Court of Appeals No.
293284. In lieu of granting leave to appeal, we reverse part II and part
(III)B of the Court of Appeals’ opinion. The trial court did not err in
denying defendant’s motion to suppress his confession. “[U]nlike in
[Missouri v Seibert, 542 US 600 (2004)], there is no concern here that
police gave [defendant] Miranda warnings and then led him to repeat an
earlier murder confession, because there was no earlier confession to
repeat.” Bobby v Dixon, 565 US ___; 132 S Ct 26, 31 (2011). In addition,
1
People v Adams, 262 Mich App 89 (2004).
2
People v Likine, 492 Mich 367, 398 (2012).
3
Id. at 420 (M
ARILYN
K
ELLY
, J., dissenting).
O
RDERS IN
C
ASES
883
“Miranda does not require that attorneys be producible on call, but only
that the suspect be informed, as here, that he has the right to an attorney
before and during questioning, and that an attorney would be appointed
for him if he could not afford one.” Duckworth v Eagan, 492 US 195, 198
(1989). Finally, an evidentiary hearing regarding Sergeant Firchau’s
testimony is unnecessary because (a) as the Court of Appeals recognized,
breaks in the chain of custody go to the weight of the evidence, not to its
admissibility; (b) the documentary evidence sufficiently establishes that
Sergeant Firchau did retrieve the bullets from the medical examiner; and
(c) admission of Sergeant Firchau’s testimony at defendant’s father’s
second trial that he was not at the autopsy would not make a different
result probable on retrial. Given the eyewitness testimony and defen-
dant’s confession, there is no doubt that a second jury would find
defendant guilty. The Court of Appeals having retained jurisdiction, we
remand this case to that court for further proceedings not inconsistent
with this order.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would deny leave to
appeal.
Order Granting Oral Argument in Case Pending on Application for Leave
to Appeal Entered November 9, 2012:
C
HERRYLAND
E
LECTRIC
C
OOPERATIVE V
B
LAIR
T
OWNSHIP
,C
HERRYLAND
E
LEC-
TRIC
C
OOPERATIVE V
E
AST
B
AY
T
OWNSHIP
, and C
HERRYLAND
E
LECTRIC
C
OOPERA-
TIVE V
G
ARFIELD
T
OWNSHIP
, Nos. 145340, 145341, and 145342; Court of
Appeals Nos. 296829, 296830, and 296856. We direct the Clerk to
schedule oral argument on whether to grant the application or take other
action. MCR 7.302(H)(1). At oral argument, the parties shall address
whether these cases involve a mutual mistake of fact within the meaning
of MCL 211.53a. They may file supplemental briefs within 42 days of the
date of this order, but they should not submit mere restatements of their
application papers.
Leave to Appeal Before Decision by the Court of Appeals Denied November
9, 2012:
AFT M
ICHIGAN V
S
TATE OF
M
ICHIGAN
and M
ICHIGAN
E
DUCATION
A
SSOCIA-
TION V
M
ICHIGAN
P
UBLIC
S
CHOOL
E
MPLOYEES
’R
ETIREMENT
S
YSTEM
, Nos.
145961 and 145962; Court of Appeals Nos. 312260 and 312261.
M
ARKMAN
,J.(dissenting). I respectfully dissent and would grant the
application to bypass the Court of Appeals. MCR 7.302(B)(4) provides
that, “in an appeal before decision by the Court of Appeals,” an applicant
for leave to appeal in this Court must show that
(a) delay in final adjudication is likely to cause substantial
harm, or
(b) the appeal is from a ruling that a provision of the Michigan
Constitution, a Michigan statute, a rule or regulation included in
the Michigan Administrative Code, or any other action of the
legislative or executive branch of state government is invalid[.]
884 493 M
ICHIGAN
R
EPORTS
Defendants, in my judgment, have made a substantial showing under
both (a) and (b). First, the temporary restraining orders (TROs) issued by
the trial court are likely to cause substantial harm in the form of
multi-million-dollar losses to the school employee pension and healthcare
funds. Defendants estimate that if the statute at issue here, 2012 PA 300,
does not go into effect, the Michigan Public School Employees’ Retire-
ment System (MPSERS) will be underfunded by $200 million in the
current fiscal year alone. Plaintiffs contend that allowing lower-court
review to run its course will not result in a full year of delays and that
defendants thus overstate the financial harm that will be caused by the
TROs. But even assuming a more expeditious resolution, MPSERS will
still be underfunded at a rate of more than $16 million a month. Second,
it is clear that the TROs have effectively invalidated—albeit
temporarily—a duly enacted statute of our Legislature. The trial court
judge has unilaterally suspended the enforcement of the selection period
prescribed by 2012 PA 300. Under both subrules (a) and (b) of MCR
7.302(B)(4), therefore, bypass review is appropriate. Indeed, it seems that
MCR 7.302(B)(4) was promulgated precisely for the purpose of expediting
review in cases like this one.
I also believe the trial court clearly erred in issuing the TROs. In
determining whether to issue a TRO, a trial court should consider four
factors: (1) whether the applicant will suffer irreparable harm if the TRO
is not granted, (2) the likelihood that the applicant will prevail on the
merits, (3) harm to the public interest if the TRO issues, and (4) whether
the harm to the applicant in the absence of a TRO outweighs the harm to
the opposing party if a TRO is granted. See Mich Coalition of State
Employee Unions v Civil Serv Comm, 465 Mich 212, 241 (2001).
There was really little danger of irreparable harm here. If 2012 PA
300 were allowed to go into effect, and then later invalidated, the
appropriate remedy for those school employees who had made benefits
elections under the statute would be to allow them to opt back out of the
healthcare and pension elections they had made. This would be accom-
plished by restoring their previous benefits and refunding any applicable
monies. The only harm to school employees would be financial and thus
fully compensable. In fact, the trial court judge acknowledged that
appropriate relief could be granted after the fact, noting that the courts
could “let [2012 PA 300 go into effect] and fix it later.”
Additionally, it is unlikely, in my view, that plaintiffs will prevail on
the merits. For starters, “[s]tatutes are presumed to be constitutional,
and courts have a duty to construe a statute as constitutional unless its
unconstitutionality is clearly apparent.” In re Request for Advisory
Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich 295, 307
(2011) (quotation marks and citation omitted). The Legislature enacted
2012 PA 300 in response to constitutional challenges brought against
2010 PA 75, which had itself amended the Public School Employees
Retirement Act, MCL 38.1301 et seq., to require all members of that
retirement system to contribute up to 3 percent of their salaries to a trust
fund for retiree healthcare. It appears that the Legislature took the
O
RDERS IN
C
ASES
885
constitutional challenges to 2010 PA 75 to heart and was particularly
determined to craft 2012 PA 300 in a way that would withstand
constitutional scrutiny. I believe the Legislature has probably succeeded.
In Studier v Mich Pub Sch Employees’ Retirement Bd, 472 Mich 642
(2005), we held that school employee retiree healthcare benefits are not
guaranteed by contract and do not constitute an accrued benefit pro-
tected from impairment or diminution by the pension clause of the state
constitution or the contract clauses in the state and federal constitutions.
Additionally, unlike 2010 PA 75, 2012 PA 300 gives school employees the
choice to either contribute 3 percent of their salaries to maintain
entitlement to healthcare coverage as a retiree or opt out of the
retirement healthcare coverage system.
Similarly, in regard to pensions, 2012 PA 300 gives school employees
a choice among three options (1) pay a percentage of their salaries in
order to continue receiving service credit at 1.5 percent per year, (2)
decline to make the salary-percentage payment and accrue credit at the
reduced rate of 1.25 percent a year, or (3) freeze their defined-benefit
entitlement as of December 1, 2012, and thereafter participate in a
defined-contribution system in which the employer matches contribu-
tions up to 4 percent of compensation. Under none of these scenarios do
the school employees lose any of the pension benefits already accrued to
them. Thus, the pension clause is not violated. “The deferred compensa-
tion protected as a contractual obligation by [Const 1963, art 9] § 24 [the
pension clause] is the pension payments themselves earned by the
retiree....”In re Advisory Opinion, 490 Mich at 317 (quotation marks
omitted; emphasis added).
I also do not see any constitutional infirmities in the implementation
schedule set forth in 2012 PA 300. School employees originally had 52
days between the enactment of 2012 PA 300 and the October 26, 2012,
deadline to make their decision as to which healthcare and pension
options to select. As defendants have pointed out, other recently enacted
retirement system reform legislation has utilized shorter windows of
time without ill effect. Of course, given the unfortunate procedural
developments in this case to date, new election deadlines will now have to
be set should 2012 PA 300 ultimately go into effect.
In short, I believe that 2012 PA 300 will ultimately be found
constitutional and that, at any rate, even if the statute is invalidated, no
irreparable harm will occur to plaintiffs if the statute is allowed to go into
effect in the meantime. Regarding the third and fourth TRO factors to be
considered by the trial judge, I believe the public has a strong interest in
ensuring that the statutes enacted by its elected Legislature are put into
effect. The public also has an interest in avoiding massive MPSERS
funding shortfalls. Finally, the potential harm to plaintiffs in the absence
of the TROs here—if indeed there is any legally cognizable harm to them
at all—does not outweigh the harm to defendants caused by the TROs.
Given all this, we should not allow a single trial court judge to
unilaterally halt the implementation of a statute duly enacted by the
Legislature (the democratic representatives of the entire state) and
signed by the Governor on such questionable grounds. Judicial interven-
tion in the affairs of the executive in a way that essentially forbids the
886 493 M
ICHIGAN
R
EPORTS
latter to exercise its executive power always “raises a question ‘of
considerable delicacy, as it requires one of the co-ordinate branches of the
government to pass its judgment on the acts of another, and the
presumption is that the executive department has the same desire to
keep within constitutional limits as either of the other two.’ ” Smith v
Dep’t of Human Servs Dir, 491 Mich 898, 898 (2012) (M
ARKMAN
,J.,
dissenting), quoting Dullam v Willson, 53 Mich 392, 397 (1884). When, as
here, a lone judge has acted to frustrate both the executive and legislative
branches and fails to present persuasive—let alone compelling—reasons
for doing so, this Court should intervene to correct such overreaching.
For these reasons, I respectfully dissent.
Leave to Appeal Denied November 9, 2012:
A
DER V
D
ELTA
C
OLLEGE
B
OARD OF
T
RUSTEES
, No. 143621; Court of
Appeals No. 290583. Leave to appeal granted at 490 Mich 1004. On
order of the Court, leave to appeal having been granted and the briefs and
oral arguments of the parties having been considered by the Court, we
vacate our order of February 1, 2012. The application for leave to appeal
the July 14, 2011 judgment of the Court of Appeals is denied.
M
ARKMAN
,J.(dissenting). I respectfully dissent from the denial of
leave because I believe the ‘standing’ doctrine set forth in Lansing Sch
Ed Ass’n v Lansing Bd of Ed, 487 Mich 349 (2010) (LSEA), violates the
constitutional separation of powers and should be overruled.
As a threshold matter, whether plaintiff’s standing is determined
under the rule of LSEA or the prior rule of Lee v Macomb Co Bd of
Comm’rs, 464 Mich 726 (2001), and Nat’l Wildlife Federation v Cleveland
Cliffs Iron Co, 471 Mich 608 (2004), is dispositive of the resolution of this
case. In this regard, it must be noted that both lower courts initially
decided that plaintiff lacked standing under Lee and Cleveland Cliffs.
Only after this Court remanded to the Court of Appeals for reconsidera-
tion in light of LSEA did the Court of Appeals reverse the trial court and
conclude that plaintiff had standing under LSEA. Moreover, the parties
themselves have both asserted that whether LSEA or Cleveland Cliffs
governs is dispositive. The issue of which of these alternative doctrines
governs standing in Michigan is squarely before this Court.
In Lee, this Court voted 6-1 to adopt the constitutionally based
standing test articulated by the United States Supreme Court in Lujan v
Defenders of Wildlife, 504 US 555, 559-560 (1992), which provides:
“Over the years, our cases have established that the irreducible
constitutional minimum of standing contains three elements.
First, the plaintiff must have suffered an ‘injury in fact’—an
invasion of a legally protected interest which is (a) concrete and
particularized, and (b) ‘actual or imminent, not “conjectural” or
“hypothetical.” ’ Second, there must be a causal connection be-
tween the injury and the conduct complained of—the injury has to
be ‘fairly...trace[able] to the challenged action of the defendant,
andnot...th[e] result [of] the independent action of some third
party not before the court.’ Third, it must be ‘likely,’ as opposed to
O
RDERS IN
C
ASES
887
merely ‘speculative,’ that the injury will be ‘redressed by a
favorable decision.’ ” [Lee, 464 Mich at 739, quoting Lujan, 504 US
at 559-560.]
This Court then reaffirmed Lee in Cleveland Cliffs. However, in LSEA,
this Court overruled the standing doctrine set forth in Lee and Cleveland
Cliffs and established in its place a “limited, prudential doctrine” that
uncoupled standing from its constitutional moorings, providing:
[A] litigant has standing whenever there is a legal cause of
action. Further, whenever a litigant meets the requirements of
MCR 2.605, it is sufficient to establish standing to seek a declara-
tory judgment. Where a cause of action is not provided at law, then
a court should, in its discretion, determine whether a litigant has
standing. A litigant may have standing in this context if the
litigant has a special injury or right, or substantial interest, that
will be detrimentally affected in a manner different from the
citizenry at large or if the statutory scheme implies that the
Legislature intended to confer standing on the litigant. [LSEA,
487 Mich at 372.]
Yet, as former Justice C
ORRIGAN
pointed out in her dissent in LSEA,
unlike the Lujan test, the LSEA test is “really no test at all[.]” Id.at388
(C
ORRIGAN
, J., dissenting). It is a “broad and amorphous principle that
promises to be nearly impossible to apply in a society that operates under
the rule of law.” Id. at 417. The LSEA test provides standing not only
where the Legislature has seen fit to confer standing, but also where it
may be inferred that the Legislature intended to confer standing.
However, the Legislature has no dispositive authority to confer standing
because standing is constitutionally based within the separation of
powers mandated by the Michigan Constitution.
The separation of powers is explicitly set forth in Const 1963, art 3, § 2,
which provides:
The powers of government are divided into three branches:
legislative, executive and judicial. No person exercising powers of
one branch shall exercise powers properly belonging to another
branch except as expressly provided in this constitution.
Our Constitution further provides that the Legislature is to exercise the
“legislative power” of the state, Const 1963, art 4, § 1, the Governor is to
exercise the “executive power,” Const 1963, art 5, § 1, and the judiciary is to
exercise the “judicial power,” Const 1963, art 6, § 1. As we explained in
Cleveland Cliffs, perhaps the most critical element of the “judicial power”
has been its traditional requirement of a genuine “case or controversy”
between the parties, one in which there is a real, not a hypothetical, dispute,
and one in which the plaintiff has suffered a particularized or personal
injury. Absent such an injury, little stands in the way of the judicial branch
becoming “intertwined in every matter of public debate.” Cleveland Cliffs,
888 493 M
ICHIGAN
R
EPORTS
471 Mich at 615. Through this intertwining, the interests of the other
branches of government would necessarily be implicated, particularly the
interests of the executive branch in administering the law. That is, if the
Legislature is permitted at its discretion to confer jurisdiction upon this
Court, unconnected with any genuine case or controversy, this Court would
be transformed in character and empowered to decide matters that have
historically been within the exclusive purview of the Governor and the
executive branch. Unless there is an individual who has personally and
particularly been injured by the administration of the laws, it is not the role
of the judicial branch to monitor the work of the executive and determine
whether it is carrying out its responsibilities in an acceptable fashion. That
role is left to the people through their right to petition the Governor, and
through their right to vote. The judiciary of this state does not act as a
superadministrator of the law.
Given the final authority of the judicial branch to accord meaning to
the Constitution, the term “judicial power” cannot ultimately be defined
by the Legislature any more than “unreasonable searches and seizures”
or the “equal protection of the laws” can ultimately be defined by the
Legislature. That a broadening and redefinition of the “judicial power”
comes in this case, as in Cleveland Cliffs, not from the judiciary itself,
usurping a power that does not belong to it, but from the Legislature
purporting to confer new powers upon the judiciary, the exercise of such
power is no less improper. In either case, the separation of powers
prevents the reallocation of executive power to the judiciary.
Because I believe that ‘standing’ is perhaps the most vital doctrine in
limiting the “judicial power” to its proper purview, and because whether
the rule of LSEA or that of Lee and Cleveland Cliffs is applied in this case
is dispositive of its resolution, I would overrule LSEA, reverse the Court
of Appeals’ decision on remand, and reinstate the Court of Appeals’
initial decision.
Summary Disposition November 15, 2012:
M
AYOR OF THE
C
ITY OF
C
ADILLAC V
B
LACKBURN
, No. 146104; Court of
Appeals No. 312803. Pursuant to MCR 7.302(H)(1), in lieu of granting
leave to appeal, we reverse the order of the Court of Appeals and remand
this case to the Court of Appeals, which shall review the application for
leave to appeal and decide whether to grant, deny, or order other relief in
accordance with MCR 7.205(D)(2). The Court of Appeals has jurisdiction
over the petitioner’s application for leave to appeal pursuant to Const
1963, art 6, § 10, MCL 600.308(2)(e), and MCR 7.203(B)(1).
The motion to stay is granted, and the proceedings in the Wexford
Circuit Court are stayed pending the completion of this appeal. On
motion of a party or on its own motion, the Court of Appeals may modify,
set aside, or place conditions on the stay if it appears that the appeal is
not being vigorously prosecuted or if other appropriate grounds appear.
O
RDERS IN
C
ASES
889
Summary Disposition November 20, 2012:
P
EOPLE V
M
ANNERS
, No. 142997; Court of Appeals No. 294585. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand
this case to the Wayne Circuit Court. On remand, the trial court shall
amend the May 31, 2011, judgment of sentence to remove all references
to the defendant being sentenced as an habitual third offender. In all
other respects, leave to appeal is denied.
P
EOPLE V
R
ACE
, No. 145587; Court of Appeals No. 310210. Pursuant to
MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand this case
to the Court of Appeals for consideration as on leave granted.
N
ICHOLS V
H
OWMET
C
ORPORATION
, No. 145829; Court of Appeals No.
303783. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration as
on leave granted.
Leave to Appeal Denied November 20, 2012:
P
EOPLE V
W
ATKINS
, No. 142110; Court of Appeals No. 291520.
P
EOPLE V
N
IEMIEC
and In re N
IEMIEC
, Nos. 142431 and 142432; Court of
Appeals Nos. 298514 and 298689.
P
EOPLE V
A
NTHONY
H
OWARD
, No. 142492; Court of Appeals No. 300585.
P
EOPLE V
D
EMARCUS
Y
OUNG
, No. 143993; Court of Appeals No. 296725.
P
EOPLE V
P
EIKERT
, No. 144247; Court of Appeals No. 298999.
L
IV
K
OEHLER
, No. 144751; Court of Appeals No. 302244.
H
ATHAWAY
, J., did not participate because she has a professional
relationship with a member of a law firm involved in this matter.
P
EOPLE V
T
RACY
B
ARNES
, No. 144758; Court of Appeals No. 304011.
H
ATHAWAY
, J., did not participate. Justice H
ATHAWAY
recuses herself
and will not participate in this case as she was the presiding trial court
judge. See MCR 2.003(B).
P
EOPLE V
W
ILBURN
, No. 144994; Court of Appeals No. 307971.
P
EOPLE V
R
OACH
, No. 145017; Court of Appeals No. 308287.
P
EOPLE V
P
ILLETTE
, No. 145021; Court of Appeals No. 308680.
P
EOPLE V
C
ULBERSON
, No. 145022; Court of Appeals No. 307662.
P
EOPLE V
B
OYETT
, No. 145069; Court of Appeals No. 303075.
P
EOPLE V
H
EISLER
, No. 145073; Court of Appeals No. 308845.
P
EOPLE V
R
EYNOLDS
, No. 145150; Court of Appeals No. 303359.
H
ATHAWAY
, J., would grant leave to appeal.
890 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
H
ARRINGTON
, No. 145159; Court of Appeals No. 306364.
P
EOPLE V
B
ELCHER
, No. 145161; Court of Appeals No. 308796.
P
EOPLE V
W
YLIE
, No. 145170; Court of Appeals No. 307642.
P
EOPLE V
C
OOK
, No. 145247; Court of Appeals No. 306447.
P
EOPLE V
R
EGINALD
J
OHNSON
, No. 145255; Court of Appeals No. 307473.
P
EOPLE V
M
C
F
ERRIN
, No. 145280; Court of Appeals No. 307170.
P
EOPLE V
S
TEVEN
T
AYLOR
, Nos. 145282 and 145283; Court of Appeals
Nos. 306541 and 308690.
P
EOPLE V
C
HINN
, No. 145298; Court of Appeals No. 306485.
P
EOPLE V
L
AROCK
, No. 145308; Court of Appeals No. 306760.
P
EOPLE V
Q
UINN
, No. 145343; Court of Appeals No. 307275.
P
EOPLE V
G
UERRA
, No. 145347; Court of Appeals No. 307999.
P
EOPLE V
G
OODMAN
, No. 145350; Court of Appeals No. 306096.
P
EOPLE V
R
IDDLE
-B
EY
, No. 145352; Court of Appeals No. 307834.
P
EOPLE V
W
ELLMAN
, No. 145354; Court of Appeals No. 306861.
P
EOPLE V
J
EFFREY
H
OLMES
, No. 145358; Court of Appeals No. 307475.
M
USHOVIC V
B
LOOMFIELD
H
ILLS
S
CHOOL
D
ISTRICT
and F
ELLIN V
B
LOOMFIELD
H
ILLS
S
CHOOL
D
ISTRICT
, Nos. 145364 and 145365; Court of Appeals Nos.
303372 and 303374.
P
EOPLE V
E
BY
, No. 145372; Court of Appeals No. 303784.
P
EOPLE V
M
IDDS
, No. 145373; Court of Appeals No. 307800.
P
EOPLE V
J
UNKER
, No. 145379; Court of Appeals No. 309846.
P
EOPLE V
M
ICHAEL
P
ORTER
, No. 145385; Court of Appeals No. 304168.
P
EOPLE V
B
ATES
, No. 145391; Court of Appeals No. 307329.
P
EOPLE V
R
ASHOD
B
ROWN
, No. 145392; Court of Appeals No. 303099.
P
EOPLE V
P
HILIP
N
ORRIS
, No. 145393; Court of Appeals No. 307276.
P
EOPLE V
W
ESLEY
N
EAL
, No. 145394; Court of Appeals No. 307181.
P
EOPLE V
F
LEMMING
, No. 145397; Court of Appeals No. 309586.
P
EOPLE V
O
DOM
, No. 145398; Court of Appeals No. 306171.
P
EOPLE V
B
LACKSHERE
, No. 145403; Court of Appeals No. 307703.
P
EOPLE V
B
USS
, No. 145407; Court of Appeals No. 307688.
P
EOPLE V
W
ARD
, No. 145413; Court of Appeals No. 309823.
O
RDERS IN
C
ASES
891
P
EOPLE V
D
IONTAE
N
EAL
, No. 145419; Court of Appeals No. 307799.
P
EOPLE V
M
OSS
, No. 145420; Court of Appeals No. 307954.
P
EOPLE V
B
UGGS
, No. 145421; Court of Appeals No. 306102.
P
EOPLE V
F
RISBY
, No. 145424; Court of Appeals No. 308821.
P
EOPLE V
V
AN
Z
ANT
, No. 145428; Court of Appeals No. 305631.
P
EOPLE V
T
ERRY
M
C
D
ONALD
, No. 145432; Court of Appeals No. 307670.
P
EOPLE V
S
ELLERS
, No. 145444; Court of Appeals No. 309371.
G
RIEVANCE
A
DMINISTRATOR V
L
YGIZOS
, No. 145448.
P
EOPLE V
W
ILKINSON
, No. 145449; Court of Appeals No. 309064.
P
EOPLE V
P
LAMONDON
, No. 145450; Court of Appeals No. 310105.
P
EOPLE V
B
RYANT
, No. 145451; Court of Appeals No. 308054.
P
EOPLE V
M
C
C
OWAN
, No. 145452; Court of Appeals No. 306203.
P
EOPLE V
C
ARLOS
L
EWIS
, No. 145454; Court of Appeals No. 307273.
P
EOPLE V
A
LISON
M
ARTIN
, No. 145455; Court of Appeals No. 302071.
P
EOPLE V
G
ATISS
, No. 145457; Court of Appeals No. 307243.
P
EOPLE V
C
AUSLEY
, No. 145462; Court of Appeals No. 309871.
P
EOPLE V
D
ONALD
G
RAHAM
, No. 145463; Court of Appeals No. 308173.
P
EOPLE V
B
ARTULIO
, No. 145464; Court of Appeals No. 303284.
P
EOPLE V
W
ILLIE
F
IELDS
, No. 145465; Court of Appeals No. 309220.
P
EOPLE V
H
OARD
, No. 145466; Court of Appeals No. 303820.
P
EOPLE V
S
HANNON
T
HOMAS
, No. 145467; Court of Appeals No. 309175.
P
EOPLE V
R
IOS
, No. 145468; Court of Appeals No. 296158.
P
EOPLE V
O
TTO
H
ARRIS
, Nos. 145473 and 145474; Court of Appeals Nos.
304335 and 304336.
P
EOPLE V
A
DAM
, No. 145475; Court of Appeals No. 307427.
P
EOPLE V
D
AVID
J
ONES
, No. 145478; Court of Appeals No. 306988.
P
EOPLE V
B
ERNARD
A
LLEN
, No. 145480; Court of Appeals No. 307330.
P
EOPLE V
T
HATCHER
, No. 145481; Court of Appeals No. 308430.
P
EOPLE V
C
RUMP
, No. 145486; Court of Appeals No. 309364.
P
EOPLE V
A
NKNEY
, No. 145488; Court of Appeals No. 309109.
M
ARILYN
K
ELLY
, J., would grant leave to appeal for the reasons set forth in
her dissenting statement in People v Luckett, 485 Mich 1076, 1078 (2010).
892 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
C
HILDRESS
, No. 145489; Court of Appeals No. 307933.
P
EOPLE V
N
EFF
, No. 145492; Court of Appeals No. 301435.
P
EOPLE V
J
ETT
, No. 145494; Court of Appeals No. 308439.
P
EOPLE V
H
UBEL
, No. 145496; Court of Appeals No. 302794.
P
EOPLE V
M
C
C
ANTS
, No. 145499; Court of Appeals No. 303454.
P
EOPLE V
V
ILLARD
B
OGARD
, No. 145501; Court of Appeals No. 309044.
P
EOPLE V
W
OODS
, No. 145502; Court of Appeals No. 309012.
P
EOPLE V
B
URR
, No. 145504; Court of Appeals No. 309065.
P
EOPLE V
H
ANSEN
, Nos. 145506 and 145507; Court of Appeals Nos.
300603 and 300616.
P
EOPLE V
G
ONZALES
, No. 145508; Court of Appeals No. 308431.
P
EOPLE V
M
UHAMMAD
, No. 145509; Court of Appeals No. 301994.
P
EOPLE V
B
ULLOCK
, No. 145511; Court of Appeals No. 307053.
C
ITY OF
S
OUTHFIELD V
R
HODES
, No. 145512; Court of Appeals No.
310494.
P
EOPLE V
H
OWELL
, No. 145513; Court of Appeals No. 307259.
P
EOPLE V
R
ODERICK
S
PEARS
, No. 145516; Court of Appeals No. 309966.
P
EOPLE V
F
OSTER
, No. 145517; Court of Appeals No. 305874.
P
EOPLE V
D
E
B
ERRY
, No. 145518; Court of Appeals No. 308087.
M
C
C
LINTON V
C
HIPPEWA
C
ORRECTIONAL
F
ACILITY
W
ARDEN
, No. 145529;
Court of Appeals No. 308741.
P
EOPLE V
W
ILLIE
J
ONES
, No. 145533; Court of Appeals No. 307594.
P
EOPLE V
S
UTTON
, No. 145534; Court of Appeals No. 304035.
P
EOPLE V
M
C
K
ENZIE
, No. 145535; Court of Appeals No. 308208.
S
HARMA V
A
SCENSION
H
EALTH
,I
NC
, No. 145540; Court of Appeals No.
303913.
Z
UNICH V
M
ID
M
ICHIGAN
M
EDICAL
C
ENTER
-M
IDLAND
and Z
UNICH V
F
AMILY
M
EDICINE
A
SSOCIATES OF
M
IDLAND
, Nos. 145542 and 145543; Court of
Appeals Nos. 297456 and 297457.
C
AVANAGH
and H
ATHAWAY
, JJ., would grant leave to appeal.
P
EOPLE V
J
EFFREY
C
URRY
, No. 145545; Court of Appeals No. 302821.
P
EOPLE V
R
EGINALD
B
ELL
, No. 145548; Court of Appeals No. 308165.
P
EOPLE V
H
UFFMAN
, No. 145549; Court of Appeals No. 303942.
O
RDERS IN
C
ASES
893
P
EOPLE V
L
EWIS
F
AIRLEY
, No. 145552; Court of Appeals No. 309590.
P
EOPLE V
B
RANDON
W
ILLIAMS
, No. 145554; Court of Appeals No. 309174.
P
EOPLE V
W
ULFF
, No. 145555; Court of Appeals No. 303275.
P
EOPLE V
P
UCKETT
, No. 145556; Court of Appeals No. 310204.
P
EOPLE V
B
ARNHARD
, No. 145558; Court of Appeals No. 309621.
P
EOPLE V
C
HAD
A
DAMS
, No. 145559; Court of Appeals No. 309325.
P
EOPLE V
D
ANNIE
B
AKER
, No. 145560; Court of Appeals No. 308257.
P
EOPLE V
M
ARTINEZ
, No. 145561; Court of Appeals No. 307765.
M
C
C
REARY V
D
EPARTMENT OF
C
ORRECTIONS
, No. 145563; Court of Appeals
No. 307837.
P
EOPLE V
L
LOYD
, No. 145565; Court of Appeals No. 307732.
P
EOPLE V
I
RMON
W
ILLIAMS
, No. 145567; Court of Appeals No. 306767.
P
EOPLE V
R
ICHARDSON
, No. 145568; Court of Appeals No. 306427.
C
AVANAGH
, J., would grant leave to appeal.
P
EOPLE V
M
ORT
, No. 145569; Court of Appeals No. 309213.
P
EOPLE V
M
C
A
RTHUR
T
AYLOR
, No. 145570; Court of Appeals No. 301603.
P
EOPLE V
R
ICHARD
C
ARTER
, No. 145572; Court of Appeals No. 309159.
P
EOPLE V
R
ONALD
D
OUGLAS
, No. 145573; Court of Appeals No. 309895.
P
EOPLE V
L
EMONT
H
OPKINS
, No. 145574; Court of Appeals No. 310533.
P
EOPLE V
E
FREM
W
ILSON
, No. 145575; Court of Appeals No. 303751.
P
EOPLE V
W
EAVER
, No. 145586; Court of Appeals No. 307029.
C
ANTON
C
HARTER
T
OWNSHIP V
P
OLK
, No. 145588; Court of Appeals No.
306799.
W
ESTFIELD
I
NSURANCE
C
OMPANY V
A
LLSTATE
I
NSURANCE
C
OMPANY
, No.
145589; Court of Appeals No. 295486.
H
ATHAWAY
, J., did not participate because she has a professional
relationship with a member of a law firm involved in this matter.
P
EOPLE V
K
INDLE
, No. 145592; Court of Appeals No. 307486.
P
EOPLE V
G
ASKILL
, No. 145595; Court of Appeals No. 300896.
P
EOPLE V
T
ERRY
A
DAMS
, No. 145596; Court of Appeals No. 304468.
P
EOPLE V
M
C
C
LENDON
, No. 145601; Court of Appeals No. 310466.
P
EOPLE V
T
IMOTHY
T
HOMAS
, No. 145602; Court of Appeals No. 304576.
P
EOPLE V
P
RATER
, No. 145605; Court of Appeals No. 307336.
894 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
A
LMOND
, No. 145610; Court of Appeals No. 308309.
P
EOPLE V
R
USSELL
H
OPKINS
, No. 145611; Court of Appeals No. 308313.
P
EOPLE V
E
LIZONDO
, No. 145614; Court of Appeals No. 303333.
P
EOPLE V
W
ITT
, No. 145615; Court of Appeals No. 310151.
P
EOPLE V
S
TILLINGS
, No. 145616; Court of Appeals No. 308660.
P
EOPLE V
C
ECIL
H
AWKINS
, No. 145617; Court of Appeals No. 308167.
P
EOPLE V
D
EONDRA
’W
ILLIAMS
, No. 145618; Court of Appeals No. 302371.
P
EOPLE V
D
ANCY
, No. 145619; Court of Appeals No. 301663.
P
EOPLE V
P
ORTIS
, No. 145620; Court of Appeals No. 309965.
P
EOPLE V
M
C
D
ANIEL
, No. 145621; Court of Appeals No. 309792.
P
EOPLE V
L
ALONE
, No. 145626; Court of Appeals No. 303378.
P
EOPLE V
H
AYES
, No. 145629; Court of Appeals No. 310429.
P
EOPLE V
E
DMUND
B
ELL
, No. 145630; Court of Appeals No. 304893.
P
EOPLE V
T
ERRANCE
D
AWSON
, No. 145635; Court of Appeals No. 302650.
P
EOPLE V
P
ENO
W
ASHINGTON
, No. 145638; Court of Appeals No. 300630.
P
EOPLE V
H
AIRE
, No. 145640; Court of Appeals No. 309851.
P
EOPLE V
B
RASHER
, No. 145641; Court of Appeals No. 308423.
P
EOPLE V
S
ETH
R
OBINSON
, No. 145642; Court of Appeals No. 302966.
P
EOPLE V
R
OD
H
OLMES
, No. 145643; Court of Appeals No. 308034.
VMG, I
NC V
B
YRON
T
OWNSHIP
, No. 145645; Court of Appeals No.
303520.
P
EOPLE V
Z
IMMER
, No. 145647; Court of Appeals No. 309982.
P
EOPLE V
W
ALLAGER
, No. 145652; Court of Appeals No. 308675.
P
EOPLE V
P
ERCEL
W
ILLIAMS
, No. 145653; Court of Appeals No. 310319.
P
EOPLE V
BJT
HOMAS
, No. 145656; Court of Appeals No. 309193.
P
EOPLE V
W
ILLIE
H
UNTER
, No. 145660; Court of Appeals No. 310802.
P
EOPLE V
J
AMES
J
OHNSON
, No. 145661; Court of Appeals No. 308235.
P
EOPLE V
C
AMERON
, No. 145662; Court of Appeals No. 304094.
P
EOPLE V
B
ISKNER
, No. 145663; Court of Appeals No. 310337.
P
EOPLE V
R
OCCA
, No. 145664; Court of Appeals No. 308251.
P
EOPLE V
R
AGLAND
, No. 145665; Court of Appeals No. 306906.
O
RDERS IN
C
ASES
895
P
EOPLE V
A
LEX
P
ERRY
, No. 145667; Court of Appeals No. 303837.
P
EOPLE V
G
RANDERSON
, No. 145669; Court of Appeals No. 303616.
P
EOPLE V
D
ONALDSON
, No. 145670; Court of Appeals No. 309696.
P
EOPLE V
L
ITTLE
, No. 145671; Court of Appeals No. 309801.
P
EOPLE V
C
UTLER
-F
ERRO
, No. 145672; Court of Appeals No. 310317.
P
EOPLE V
N
AJEE
W
ILLIAMS
, No. 145673; Court of Appeals No. 303191.
P
EOPLE V
J
AMES
M
OORE
, No. 145674; Court of Appeals No. 309615.
P
EOPLE V
R
ICHEY
, No. 145680; Court of Appeals No. 307932.
P
EOPLE V
M
EADS
, No. 145681; Court of Appeals No. 304556.
P
EOPLE V
P
ETERS
, No. 145683; Court of Appeals No. 304359.
P
EOPLE V
H
ARVEY
, No. 145686; Court of Appeals No. 301531.
P
EOPLE V
P
HILLIP
P
OWELL
, No. 145689; Court of Appeals No. 310285.
P
EOPLE V
B
OSTICK
, No. 145690; Court of Appeals No. 308627.
P
EOPLE V
M
C
G
AHA
, No. 145697; Court of Appeals No. 301220.
P
EOPLE V
G
RIX
, No. 145699; Court of Appeals No. 310051.
P
EOPLE V
J
OHN
W
ILLIAMS
, No. 145700; Court of Appeals No. 309674.
P
EOPLE V
S
OLERNORONA
, No. 145701; Court of Appeals No. 299269.
O
RTIZ V
R
ICHARD
AH
ANDLON
C
ORRECTIONAL
F
ACILITY
W
ARDEN
, No.
145703; Court of Appeals No. 307829.
P
EOPLE V
P
ARKER
, No. 145704; Court of Appeals No. 310615.
P
EOPLE V
P
HIPPS
, No. 145705; Court of Appeals No. 309963.
P
EOPLE V
G
EOFFREY
L
AWSON
, No. 145709; Court of Appeals No. 302128.
P
EOPLE V
F
IZER
, No. 145711; Court of Appeals No. 310532.
P
EOPLE V
G
OODEN
, No. 145712; Court of Appeals No. 308312.
P
EOPLE V
P
OINDEXTER
, No. 145713; Court of Appeals No. 310316.
P
EOPLE V
D
UTTERER
, No. 145714; Court of Appeals No. 310603.
P
EOPLE V
E
SBAUGH
, No. 145723; Court of Appeals No. 309518.
P
EOPLE V
C
HARLES
M
ILLER
, No. 145728; Court of Appeals No. 310817.
P
EOPLE V
D
WYER
, No. 145729; Court of Appeals No. 301300.
P
EOPLE V
I
MLER
, No. 145734 ; Court of Appeals No. 309576.
P
EOPLE V
Z
ACHARY
E
LLIS
, No. 145740; Court of Appeals No. 308375.
896 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
H
UGUELY
, No. 145747; Court of Appeals No. 303436.
P
EOPLE V
E
RIC
B
ALL
, No. 145751; Court of Appeals No. 310739.
P
ORTER V
N
ISWONGER
, No. 145752; Court of Appeals No. 308010.
P
EOPLE V
K
ELLMAN
, No. 145756; Court of Appeals No. 307345.
A
DVANCE
S
TEEL
C
OMPANY V
O
ILFIELD
P
IPE
&S
UPPLY
,I
NC
, No. 145761;
Court of Appeals No. 302724.
J
ACKSON
-E
LV
S
PADA
, No. 145762; Court of Appeals No. 308847.
P
EOPLE V
R
ANDLE
, No. 145766; Court of Appeals No. 303947.
P
EOPLE V
C
HRISTIAN
, No. 145769; Court of Appeals No. 304265.
P
EOPLE V
E
ARLS
, No. 145770; Court of Appeals No. 281248.
E
LHADY V
C
ITI
M
ORTGAGE
,I
NC
, No. 145771; Court of Appeals No. 304745.
T
ECHNER V
G
REENBERG
, No. 145772; Court of Appeals No. 303859.
P
EOPLE V
G
IDDIS
, No. 145775; Court of Appeals No. 310730.
P
EOPLE V
P
ROFIT
, No. 145776; Court of Appeals No. 309473.
P
EOPLE V
H
EATH
, No. 145778; Court of Appeals No. 305364.
P
EOPLE V
B
OONE
, No. 145784; Court of Appeals No. 308974.
P
EOPLE V
M
ICHAEL
M
ARVIN
, No. 145785; Court of Appeals No. 302002.
P
EOPLE V
S
HIRLEY
O
LIVER
, No. 145786; Court of Appeals No. 310457.
P
EOPLE V
B
OOKER
, No. 145788; Court of Appeals No. 310785.
P
EOPLE V
M
AURICE
H
AYNES
, No. 145789; Court of Appeals No. 308858.
P
EOPLE V
F
RANKLIN
, No. 145791; Court of Appeals No. 309424.
P
EOPLE V
T
ACKETT
, No. 145793; Court of Appeals No. 305881.
S
ULOWSKA V
A
LBERT
T
ROSTEL
&S
ONS
C
OMPANY
, No. 145794; Court of
Appeals No. 304195.
P
EOPLE V
M
C
G
HEE
, No. 145803; Court of Appeals No. 309840.
P
EOPLE V
J
ENKINS
, Nos. 145806 and 145807; Court of Appeals Nos.
303917 and 304204.
P
EOPLE V
H
ORN
, No. 145817; Court of Appeals No. 304877.
P
EOPLE V
S
UTTON
, No. 145821; Court of Appeals No. 299262.
P
EOPLE V
P
LATZ
, No. 145823; Court of Appeals No. 302885.
P
EOPLE V
B
RAGG
, No. 145839; Court of Appeals No. 308628.
P
EOPLE V
V
ERDELL
R
EESE
, No. 145840; Court of Appeals No. 292153.
O
RDERS IN
C
ASES
897
P
EOPLE V
W
ILLIAM
H
ALL
, No. 145858; Court of Appeals No. 309507.
P
EOPLE V
S
ETTLES
, No. 145860; Court of Appeals No. 310009.
P
EOPLE V
D
UNN
, No. 145881; Court of Appeals No. 311927.
P
EOPLE V
H
ARDY
, No. 145890; Court of Appeals No. 309938.
P
EOPLE V
N
ULL
, No. 145891; Court of Appeals No. 308949.
P
EOPLE V
R
ICKY
V
AUGHN
, No. 145892; Court of Appeals No. 311400.
P
EOPLE V
R
OBERT
T
HOMPSON
, No. 145930; Court of Appeals No. 309354.
P
EOPLE V
T
ERPSTRA
, No. 146001; Court of Appeals No. 304437.
Superintending Control Denied November 20, 2012:
H
OPE
-J
ACKSON V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 145864.
Reconsideration Denied November 20, 2012:
P
EOPLE V
A
RTHUR
, No. 144035; Court of Appeals No. 302919. Leave to
appeal denied at 492 Mich 852.
B
URNSIDE V
G
ENESEE
C
IRCUIT
J
UDGE
, No. 144685; Court of Appeals No.
306913. Leave to appeal denied at 491 Mich 944.
P
EOPLE V
H
AWLEY
, No. 144847; Court of Appeals No. 307750. Leave to
appeal denied at 491 Mich 946.
P
EOPLE V
M
ARCELL
W
ILLIAMS
, No. 145074; Court of Appeals No.
306161. Leave to appeal denied at 491 Mich 947.
B
ONNER V
A
LLEN
, No. 145117; Court of Appeals No. 307802. Leave to
appeal denied at 492 Mich 868.
Summary Disposition November 21, 2012:
B
OERTMANN V
C
INCINNATI
I
NSURANCE
C
OMPANY
, No. 142936; Court of
Appeals No. 293835. On order of the Court, leave to appeal having been
granted and the briefs and oral arguments of the parties having been
considered by the Court, we reverse the March 8, 2011, judgment of the
Court of Appeals, and we remand this case to the Macomb Circuit Court
for entry of an order granting summary disposition to defendant. MCL
500.3105(1) provides, “Under personal protection insurance an insurer is
liable to pay benefits for accidental bodily injury arising out of the
ownership, operation, maintenance or use of a motor vehicle as a motor
vehicle, subject to the provisions of this chapter.” An injury arises out of
the use of a motor vehicle as a motor vehicle when “the causal connection
between the injury and the use of a motor vehicle as a motor vehicle is
more than incidental, fortuitous, or ‘but for.’ ” Thornton v Allstate Ins
898 493 M
ICHIGAN
R
EPORTS
Co, 425 Mich 643, 659 (1986). Here, as tragic as the motor vehicle
accident that caused the death of plaintiff’s son was, the causal connec-
tion between plaintiff’s injury, i.e., posttraumatic stress disorder, and the
“use of a motor vehicle as a motor vehicle” is not “more than incidental,
fortuitous, or ‘but for.’ ” Any injury suffered by plaintiff was too
attenuated to be compensable. Plaintiff herself was in no way involved in
the motor vehicle accident; she was not on the motorcycle with her son,
nor was she in the vehicle that struck her son; and she was not struck by
the motorcycle or by the vehicle that struck her son. Instead, just as with
the plaintiff in Keller v Citizens Ins Co of America, 199 Mich App 714
(1993), plaintiff was simply a bystander who very unfortunately wit-
nessed an accident that resulted in her son’s death. Accordingly, just as
with the plaintiff in Keller, plaintiff is not entitled to no-fault benefits.
H
ATHAWAY
,J.(dissenting). I believe that the Court of Appeals correctly
analyzed this matter and reached the correct result. Accordingly, I would
affirm the Court of Appeals.
C
AVANAGH
and M
ARILYN
K
ELLY
, JJ., joined the statement of H
ATHAWAY
,J.
Application for Leave to Appeal Dismissed on Stipulation November 30,
2012:
AFSCME L
OCAL
25vW
AYNE
C
OUNTY
, Nos. 146119 and 146120; re-
ported below: 297 Mich App 489.
Summary Disposition December 5, 2012:
In re C
ARROLL
, No. 143202; reported below: 292 Mich App 395. By
order of April 18, 2012, the application for leave to appeal the April 26,
2011, judgment of the Court of Appeals was held in abeyance pending the
decisions in Johnson v Recca (Docket No. 143088) and Douglas v Allstate
Ins Co (Docket No. 143503). The cases having been decided on July 30,
2012, Johnson, 492 Mich 169 (2012), and Douglas, 492 Mich 241 (2012),
the application is again considered and, pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we vacate the judgment of the Court of
Appeals and remand this case to the Court of Appeals for reconsideration
in light of our decisions in Johnson and Douglas.
In re C
ONSERVATORSHIP OF
C
ISNEROS
, No. 144316; Court of Appeals No.
298922. By order of April 18, 2012, the application for leave to appeal the
September 27, 2011, judgment of the Court of Appeals was held in
abeyance pending the decisions in Johnson v Recca (Docket No. 143088)
and Douglas v Allstate Ins Co (Docket No. 143503). The cases having
been decided on July 30, 2012, Johnson, 492 Mich 169 (2012), and
Douglas, 492 Mich 241 (2012), the application is again considered and,
pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we
vacate the judgment of the Court of Appeals and remand this case to the
Court of Appeals for reconsideration in light of our decisions in Johnson
and Douglas.
O
RDERS IN
C
ASES
899
P
EOPLE V
G
OSSELIN
, No. 145212; Court of Appeals No. 308923. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand
this case to the Wayne Circuit Court for correction of the judgment of
sentence to delete the requirement that the defendant pay one-third of
her restitution obligation before she may be released on parole. The trial
court had no authority to impose the restitution obligation as a condition
of parole. See People v Greenberg, 176 Mich App 296, 310-311 (1989). In
all other respects, leave to appeal is denied.
L
EMIN V
J
OHN
M
ICHAEL
G
ARRETT
, MD, PC, No. 145500; Court of Appeals
No. 307539. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration as
on leave granted in light of Hoffner v Lanctoe, 492 Mich 450 (2012).
H
ATHAWAY
, J., would grant leave to appeal.
Leave to Appeal Granted December 5, 2012:
A
NDRIE
,I
NC V
D
EPARTMENT OF
T
REASURY
, No. 145557; reported below:
296 Mich App 355. On order of the Court, the motions for immediate
consideration and the motion to stay the precedential effect of the
published Court of Appeals opinion are granted. The application for leave
to appeal the April 26, 2012, judgment of the Court of Appeals is
considered, and it is granted. The parties shall address (1) whether the
Court of Appeals correctly determined that a retail transaction in
Michigan subject to the sales tax, MCL 205.51 et seq., is not subject to the
use tax, MCL 205.91 et seq.; (2) whether a retail purchaser is entitled to
a presumption that sales tax is paid on retail transactions in Michigan;
and (3) whether the exemption in MCL 205.94(1)(a) applies in this case.
Leave to Appeal Denied December 5, 2012:
P
EOPLE V
G
RANT
, No. 142378; Court of Appeals No. 300556.
M
ARILYN
K
ELLY
, J., would remand this case to the trial court to allow
defendant to withdraw his plea.
Z
AHRA
, J., did not participate because he was on the Court of Appeals
panel.
P
EOPLE V
P
ROCHOWSKI
, No. 143040; Court of Appeals No. 302568.
M
ARILYN
K
ELLY
, J., would remand this case to the trial court to allow
defendant to withdraw his plea.
P
EOPLE V
J
ERRY
M
ATTHEWS
, No. 143440; Court of Appeals No. 296889.
L
EMERAND V
U
NIVERSITY OF
M
ICHIGAN
R
EGENTS
, No. 144186; Court of
Appeals No. 298637.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant leave to
appeal.
P
EOPLE V
D
AVID
H
UDSON
, No. 144930; Court of Appeals No. 307968.
900 493 M
ICHIGAN
R
EPORTS
S
EXTON
-W
ALKER V
G
REAT
E
XPRESSIONS
D
ENTAL
C
ENTERS
, PC, No. 145274;
Court of Appeals No. 302513.
H
ATHAWAY
, J., would grant leave to appeal.
P
EOPLE V
J
AMERSON
, No. 145299; Court of Appeals No. 303507.
P
EOPLE V
J
AMES
T
AYLOR
, No. 145333; Court of Appeals No. 307168.
M
ARILYN
K
ELLY
, J., would vacate the defendant’s sentence and remand
this case for resentencing.
M
ARSHALL V
B
OYNE
USA, I
NC
, No. 145339; Court of Appeals No. 301725.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would reverse the
judgment of the Court of Appeals and reinstate the trial court’s order
denying defendant’s motion for summary disposition.
P
EOPLE V
J
AMES
M
ICHAEL
W
RIGHT
, No. 145410; Court of Appeals No.
309911.
C
AVANAGH
, J., would grant leave to appeal.
G
RIEVANCE
A
DMINISTRATOR V
W
IDENBAUM
, No. 145418.
Z
AHRA
, J., would grant leave to appeal.
H
ATHAWAY
, J., did not participate because she has a professional
relationship with a member of a law firm involved in this matter.
P
EOPLE V
W
ILLS
, No. 145434; Court of Appeals No. 309029.
B
UHALIS V
T
RINITY
C
ONTINUING
C
ARE
S
ERVICES
, Nos. 145436 and 145437;
reported below: 296 Mich App 685.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant leave to
appeal.
P
EOPLE V
G
ONSER
, No. 145442; Court of Appeals No. 298252.
C
AVANAGH
, J., would grant leave to appeal.
P
EOPLE V
S
EAMAN
, No. 145515; Court of Appeals No. 310010.
A
NDRIE
,I
NC V
D
EPARTMENT OF
T
REASURY
, No. 145553; reported below:
296 Mich App 355.
C
AVANAGH
and M
ARILYN
K
ELLY
, JJ., would grant leave to appeal.
M
ATTEI V
O
TT
, Nos. 145732 and 145733; Court of Appeals Nos. 303966
and 304090.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant leave to
appeal.
Summary Disposition December 7, 2012:
P
EOPLE V
K
ITCHEN
, No. 145737; Court of Appeals No. 310796. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we vacate the
defendant’s sentence in Case No. 11-000462-FH, and remand this case to
the Ingham Circuit Court for further proceedings. There is no dispute
that the trial judge deviated from the plea agreement, which included a
O
RDERS IN
C
ASES
901
prosecutorial sentencing recommendation pursuant to People v Kille-
brew, 416 Mich 189 (1977), but then failed to give the defendant the
opportunity to withdraw his plea. On remand, the trial judge shall impose
sentence in accordance with the agreement, or conduct a resentencing, or
give the defendant the opportunity to withdraw his plea.
We further order the trial court to determine, in accordance with
Administrative Order No. 2003-03, whether the defendant is indigent
and, if so, to appoint counsel to represent him in connection with the
remand proceedings.
We do not retain jurisdiction.
Finally, we remind the trial judge of her obligations under Canon 3 of
the Code of Judicial Conduct and caution her against engaging in any
further ex parte communication with a party in violation of that canon.
Order Granting Oral Argument in Case Pending on Application for Leave
to Appeal Entered December 7, 2012:
C
UMMINGS V
L
EWIS
, No. 145445; Court of Appeals No. 303386. We
direct the Clerk to schedule oral argument on whether to grant the
application or take other action. MCR 7.302(H)(1). At oral argument, the
parties shall address whether (1) the plaintiff’s no contest plea to
resisting arrest bars her remaining claims pursuant to Heck v Humphrey,
512 US 477, 487 (1994); (2) accepting the plaintiff’s version of events,
defendant Seth Lewis nevertheless acted reasonably, as a matter of law,
under all of the circumstances; and (3) the defendant is entitled to
governmental immunity for the plaintiff’s remaining claims. The parties
may file supplemental briefs within 42 days of the date of this order.
Leave to Appeal Before Decision by the Court of Appeals Denied
December 7, 2012:
V
AN
S
LEMBROUCK V
H
ALPERIN
, No. 145153; Court of Appeals No.
309680.
Leave to Appeal Denied December 7, 2012:
In re G
OLDIE
, No. 146085; Court of Appeals Nos. 307219.
In re G
OLDIE
, No. 146096; Court of Appeals Nos. 307218.
R
ODRIGUEZ V
B
ANK OF
A
MERICA
, No. 146215; Court of Appeals No. 312626.
C
ITY OF
B
RIGHTON V
B
ONNER
, No. 146216; Court of Appeals No. 312770.
Order Imposing Costs in Judicial Tenure Commission Proceeding En-
tered December 7, 2012:
In re J
AMES
, No. 143942.
On order of the Court, the Judicial Tenure Commission’s bill of costs is
considered, and the respondent, Sylvia A. James, is ordered to pay costs of
$16,500 to the commission.
902 493 M
ICHIGAN
R
EPORTS
Summary Disposition December 12, 2012:
H
ALL V
S
TARK
R
EAGAN
, PC, Nos. 143909 and 143911; reported below:
294 Mich App 88. Leave to appeal having been granted, and the briefs
and oral argument of the parties having been considered by the Court, we
reverse that part of the September 13, 2011, judgment of the Court of
Appeals holding that this matter was not subject to arbitration, and we
reinstate the October 1, 2009, order of the Oakland Circuit Court
granting summary disposition in favor of the defendants. The dispute in
this case concerns the motives of the defendant shareholders in invoking
the separation provisions of the Shareholders’ Agreement, Article 8.1
and/or Article 9.1, with respect to the plaintiffs. This is a “dispute
regarding interpretation or enforcement of...the parties’ rights or
obligations” under the Shareholders’ Agreement, and is therefore subject
to binding arbitration pursuant to Article 14.1 of the Agreement. Because
the dispute between these parties is subject to binding arbitration, it was
unnecessary for the Court of Appeals to reach the issue of standing under
the Civil Rights Act, MCL 37.2101 et seq., and we vacate that part of the
judgment of the Court of Appeals. For the same reason, we decline to
address the remaining issues raised on appeal.
C
AVANAGH
,J.(dissenting). I respectfully dissent from the majority’s
decision to reverse the judgment of the Court of Appeals, reinstating the
trial court’s grant of summary disposition for defendants and compelling the
arbitration of plaintiffs’ claim under Michigan’s Civil Rights Act (CRA),
MCL 37.2101 et seq. I agree with Justice M
ARILYN
K
ELLY
’s dissenting
statement that a dispute regarding defendants’ motivations for terminating
plaintiffs’ employment does not fall within the scope of the parties’ arbitra-
tion clause. Thus, I would affirm the result reached by the Court of Appeals,
including its holding that plaintiffs have standing under the CRA.
However, even if the parties’ dispute fell within the scope of the
arbitration clause, for the reasons I stated in Heurtebise v Reliable Business
Computers, Inc, 452 Mich 405, 414-438 (1996) (opinion by C
AVANAGH
, J.), the
arbitration clause in this case is not enforceable because an employee’s
prospective waiver of the constitutional right to litigate a civil rights claim in
a judicial forum is contrary to the Legislature’s intent when it enacted the
CRA and the people’s intent when they adopted the Michigan Constitution
in 1963, see id. at 426-436. The right to pursue employment is secured by an
individual’s direct access to judicial remedies; therefore, the majority abases
this right by enforcing a prospective waiver of the right to a judicial forum.
The foregoing provides additional justification for why this Court should
affirm the result reached by the Court of Appeals, although on different
grounds.
H
ATHAWAY
, J., joined the statement of C
AVANAGH
,J.
M
ARILYN
K
ELLY
,J.(dissenting). I dissent from the majority’s decision
to reverse in part the Court of Appeals’ judgment and reinstate summary
disposition in favor of defendants. The majority concludes that plaintiffs’
civil rights claims constitute a “dispute regarding interpretation or
enforcement of any of the parties’ rights or obligations” under the
shareholders’ agreement. I disagree.
O
RDERS IN
C
ASES
903
As the Court of Appeals majority observed, the only “rights or
obligations” addressed in the shareholders’ agreement involved entitle-
ment to stock ownership and restrictions on stock transfer.
1
Plaintiffs
have advanced no argument that defendants violated any of those
provisions. Rather, plaintiffs claim that although defendants complied
with all provisions in the agreement, their reasons for divesting plaintiffs
of their stock violated the Civil Rights Act.
2
There is a significant difference between challenging the motives for
divesting plaintiffs of their stock and the mechanics by which the
divestiture occurred. The latter is clearly within the scope of the
shareholders’ agreement because that agreement sets forth the specific
mechanics by which such divestiture may occur. But the shareholders’
agreement is silent with respect to the former. Accordingly, I cannot
conclude that plaintiffs’ claims involve any “rights or obligations” arising
under that agreement.
For this reason, I dissent from the order and would affirm the Court
of Appeals’ judgment in its entirety.
H
ATHAWAY
, J., joined the statement of M
ARILYN
K
ELLY
,J.
P
EOPLE V
R
HODES
, No. 145068; Court of Appeals No. 308107. Pursuant
to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals for consideration of whether the defendant’s
delayed application for leave to appeal was timely filed by virtue of the
prison mailbox rule, MCR 7.205(A)(3).
We do not retain jurisdiction.
P
EOPLE V
L
ASKI
, No. 145874; Court of Appeals No. 310485. Pursuant to
MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand this case
to the Court of Appeals for consideration as on leave granted.
M
ARILYN
K
ELLY
, J., would deny leave to appeal.
P
EOPLE V
W
EBB
, No. 145969; Court of Appeals No. 305017. Pursuant to
MCR 7.302(H)(1), in lieu of granting leave to appeal, we reverse in part the
judgment of the Court of Appeals to the extent that the Court of Appeals
vacated the defendant’s convictions. We do not disturb the Court of Appeals’
determination that the lack of an expert witness deprived the defendant of
an opportunity to present a defense to the charged crimes, or its ruling that
the defendant is entitled to funds to retain a DNA expert. However, the error
in denying funds may have been harmless and, at this point in the
proceedings, it would be premature to vacate the defendant’s convictions
before the results of independent DNA testing are known. We remand this
case to the Saginaw Circuit Court for further proceedings not inconsistent
with this order. The trial court shall provide funds sufficient to permit the
defendant to obtain independent DNA testing. Testing shall proceed forth-
with, and the results shall be provided to both parties as soon as reasonably
possible. Within 56 days of receiving the test results, the defendant may seek
further relief, if appropriate, in the trial court.
We do not retain jurisdiction.
1
Hall v Stark Reagan, PC, 294 Mich App 88, 96 (2011).
2
MCL 37.2101 et seq.
904 493 M
ICHIGAN
R
EPORTS
Order Declining to Authorize Certification of Question Entered December
12, 2012:
In re E
XECUTIVE
M
ESSAGE OF THE
G
OVERNOR
(B
ROWN V
G
OVERNOR
), No.
143563. The Executive Message of the Governor pursuant to MCR
7.305(A) was received on August 12, 2011, requesting that this Court
direct the Ingham Circuit Court to certify certain questions for
immediate determination by this Court. On order of the Court, the
motion for leave to file a brief amicus curiae by the American
Federation of State, County & Municipal Employees, AFL-CIO, is
granted. The Executive Message of the Governor is considered, and
the Court respectfully declines the request for certification as moot.
Leave to Appeal Denied December 12, 2012:
A
WAD V
G
ENERAL
M
OTORS
A
CCEPTANCE
C
ORPORATION
, No. 145202; Court
of Appeals No. 302692.
M
ARILYN
K
ELLY
, J., would grant leave to appeal.
MSX I
NTERNATIONAL
P
LATFORM
S
ERVICES
,LLCvH
URLEY
, No. 145395;
Court of Appeals No. 300569.
H
ATHAWAY
, J., would grant leave to appeal.
H
UNTINGTON
N
ATIONAL
B
ANK V
F
IRST
A
MERICAN
T
ITLE
I
NSURANCE
C
OMPANY
,
No. 145414; Court of Appeals No. 303496.
Z
AHRA
, J., would grant leave to appeal.
P
EOPLE V
W
HITNEY
, No. 145460; Court of Appeals No. 303399.
P
EOPLE V
C
OMELLA
, No. 145510; reported below: 296 Mich App 643.
P
EOPLE V
R
IVARD
, No. 145514; Court of Appeals No. 303854.
C
ITY OF
H
UNTINGTON
W
OODS V
O
RCHARD
,H
ILTZ
&M
C
C
LIMENT
,I
NC
, No.
145603; Court of Appeals No. 301987.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant leave to
appeal.
P
EOPLE V
C
ROFF
, No. 145607; Court of Appeals No. 302088.
S
ELDON V
S
UBURBAN
M
OBILITY
A
UTHORITY FOR
R
EGIONAL
T
RANSPORTATION
,
No. 145627; reported below: 297 Mich App 427.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant leave to
appeal.
P
EOPLE V
R
OEDER
, No. 145637; Court of Appeals No. 310212.
M
ARILYN
K
ELLY
, J., would remand this case to the Court of Appeals for
consideration of whether there was an adequate factual basis to support
the defendant’s guilty plea.
P
EOPLE V
H
AMAMA
, No. 145708; Court of Appeals No. 304527.
O
RDERS IN
C
ASES
905
H
OFFMAN V
C
ONSUMERS
E
NERGY
C
OMPANY
, Nos. 145730 and 145731;
Court of Appeals Nos. 300577 and 301977.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant leave to
appeal.
P
EOPLE V
C
ORDARRELL
S
IMS
, No. 145744; Court of Appeals No. 292529.
L
IPNEVICIUS V
L
IPNEVICIUS
, No. 145909; Court of Appeals No. 304520.
Summary Disposition December 14, 2012:
S
MITH V
S
UBURBAN
M
OBILITY
A
UTHORITY FOR
R
EGIONAL
T
RANSPORTATION
,
No. 142515; Court of Appeals No. 294311. Pursuant to MCR 7.302(H)(1),
in lieu of granting leave to appeal, we reverse the judgment of the Court
of Appeals, for the reasons stated in the Court of Appeals dissenting
opinion, and we reinstate the September 9, 2009, order of the Wayne
Circuit Court. See Atkins v Suburban Mobility Auth for Regional Transp,
492 Mich 707 (2012).
M
ARILYN
K
ELLY
, J., would deny leave to appeal for the reasons set forth
in her dissenting opinion in Atkins v Suburban Mobility Auth for
Regional Transp, 492 Mich 707, 723 (2012).
H
ATHAWAY
, J., did not participate due to a familial relationship with
counsel of record.
Order Granting Oral Argument in Case Pending on Application for Leave
to Appeal Entered December 14, 2012:
P
EOPLE V
J
OHNNY
H
ARRIS
, No. 145833; Court of Appeals No. 296631. We
direct the Clerk to schedule oral argument on whether to grant the
application or take other action. MCR 7.302(H)(1). At oral argument, the
parties shall address whether the defendant was prejudiced by the admission
of Dr. Carrie Ricci’s diagnosis that the complainant was the victim of child
sexual abuse and whether the defendant is entitled to a new trial. The
parties shall file supplemental briefs within 42 days of the date of this order.
Leave to Appeal Denied December 14, 2012:
In re H
UGHES
, No. 146111; Court of Appeals No. 309415.
Summary Disposition December 18, 2012:
L
YON
C
HARTER
T
OWNSHIP V
M
C
D
ONALD
’s USA, LLC, No. 143342; re-
ported below: 292 Mich App 660. On order of the Court, leave to appeal
906 493 M
ICHIGAN
R
EPORTS
having been granted and the briefs and oral arguments of the parties
having been considered by the Court, we hereby vacate part II(B) and the
first sentence of part IV of the Court of Appeals May 24, 2011, majority
opinion, which are unnecessary to the decision in this case. The appel-
lant’s request for relief is denied in all other respects.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., concurred in the result.
Z
AHRA
,J.(dissenting). I would reverse the Court of Appeals majority
decision and reinstate the trial court’s award to defendant-appellant
Milford Road East Development Associates, L.L.C. (defendant) of just
compensation under the Uniform Condemnation Procedures Act
(UCPA), MCL 213.51 et seq., in the amount of $1.5 million.
This case involves review of a verdict rendered after a bench trial in
a condemnation action. Defendant is the developer of Lyon Towne
Center, located in plaintiff Lyon Charter Township, south of I-96 and east
of Milford Road. A related company, Milford Road West Development
Associates, L.L.C. (MRWDA) has the same owners as defendant and is the
developer of Lyon Crossing, a development also south of I-96, but west of
Milford Road. Defendant and MRWDA entered into two nearly identical
planned development agreements with plaintiff to develop the approxi-
mately 115 acres of vacant land. The developments were phased devel-
opments collectively known as Lyon Centers. Defendant expended ap-
proximately $10 million to construct a ring road called Lyon Center Drive
to connect Lyon Towne Center and Lyon Crossing and bring public sewer
and water service to Lyon Centers. Before the development was com-
pleted, plaintiff exercised its right of eminent domain to access these
water and sewer lines to benefit a neighboring private property owner.
Claiming that it merely desired “to expand its municipal public
services, water and sewer, to that portion of the township north of 1-96,”
plaintiff asked McDonald’s USA, L.L.C., which had purchased a unit in
the condominium development, to grant it an easement over its property.
When defendant originally sold the unit to McDonald’s, defendant,
pursuant to the Lyon Towne Center Master Deed and Bylaws, “reserve[d]
for the benefit of itself...permanent easements to use, tap into, enlarge
or extend all utility facilities in the Condominium and servient es-
tates....”Defendant also reserved for itself the right to approve or
disapprove all future developments and improvements, including utili-
ties. McDonald’s thus refused to grant plaintiff the requested easement.
Plaintiff then filed this action against McDonald’s to condemn an
easement for permanent subsurface water and sewer utilities under the
condominium unit within Lyon Towne Center owed by McDonald’s.
Defendant moved to intervene, noting that it retained the above-
mentioned property rights to the common elements of the Lyon Center
under the master deed and bylaws. In response, plaintiff maintained that
defendant had no property interest in the affected property and that no
common elements are involved. Plaintiff maintained this position
throughout the proceedings.
The trial court awarded defendant $1.5 million as just compensation
under the UCPA. The Court of Appeals reversed the judgment in a 2-1
decision, concluding in part that the trial court had wrongly awarded
O
RDERS IN
C
ASES
907
damages to defendant for being “outpositioned” in the market place.
1
The Court of Appeals majority further concluded that the trial court’s
award constituted a “new theory of compensation” that would “seriously
hinder future economic growth, particularly in commercial and industrial
markets.”
2
Like most condemnation actions, this case is factually intense. Omit-
ted from the Court of Appeals majority opinion are some undisputed facts
that plainly influenced the trial court’s decision and are, in my view,
pertinent to appellate review. For example, the automobile dealership
that benefitted from plaintiff’s exercise of eminent domain had previ-
ously been under contract to purchase property within defendant’s
development. The object of this contract never came to fruition because
plaintiff withheld its approval to place the dealership within defendant’s
development. At the same time, plaintiff rezoned nearby property to
accommodate placement of an automobile dealership on that property.
After the dealership purchased the rezoned property, it was discovered
that the land would not percolate water,
3
thereby making it impossible to
use septic tanks. The dealership could be constructed in its new location
only if the water and sewer lines that defendant had paid approximately
$10 million to extend to its property were further extended to the rezoned
parcel. Plaintiff was reluctant to exercise its power of eminent domain
and agreed to do so only after the dealership and its developer agreed to
indemnify and hold plaintiff harmless for its condemnation action. The
trial court observed that plaintiff not only prevented defendant from
developing its property in accordance with the phased development plan,
but also diverted at least two would-be purchasers of property within
defendant’s development to land that could be developed only because of
plaintiff’s exercise of eminent domain.
In my view, this Court’s order vacating “part II(B) and the first
sentence of part IV of the Court of Appeals May 24, 2011, majority opinion,
which are unnecessary to the decision in this case,” but otherwise denying
relief is troubling for several reasons. The order vacates the portion of the
Court of Appeals majority opinion relating to its interpretation of “parcel”
under the UCPA but otherwise denies relief and thus, by implication,
accepts the Court of Appeals majority’s conclusion that, even if it had
property rights that were affected by the taking, defendant is simply not
entitled to just compensation. In my view, while the order properly leaves in
place the Court of Appeals majority’s determination that defendant has a
property interest in the property that was taken, it improperly lets stand
the clearly erroneous determination that this property interest was
limited because the master deed or bylaws specify that any development
was “subject to plaintiff’s approval.” That plaintiff’s approval was
1
Lyon Charter Twp v McDonald’s USA, LLC, 292 Mich App 660, 675
(2011).
2
Id. at 673-674.
3
“Percolating water” is “[w]ater that oozes or seeps through soil
without a defined channel....”Black’s Law Dictionary (7th ed), p
1585.
908 493 M
ICHIGAN
R
EPORTS
required merely acknowledges that plaintiff has the right to regulate all
development. Though plaintiff could veto a project approved by the
developer, it did not have the right under the master deed or bylaws to
compel an extension of the public utilities as done here without paying
defendant just compensation. In other words, there is little dispute that
defendant possessed property rights under the master deed and bylaws
that were affected by plaintiff’s taking.
The order also leaves unaddressed the significant issue of defining the
“parcel” of property affected by the taking under the UCPA. The UCPA
defines a “parcel” as “an identifiable unit of land, whether physically
contiguous or not, having substantially common beneficial ownership, all
or part of which is being acquired, and treated as separate for valuation
purposes.”
4
The Court of Appeals majority held that because the “com-
mon beneficial ownership between defendant and Milford Road West
Development Associates is extraneous to the deeds,” it “is insufficient to
grant an interest in the McDonald’s easement to the common owners.”
5
However, as explained by amicus curiae Michigan Chamber Litigation
Center,
[t]he legislature did not limit the relevant ‘parcel’ for valuation
purposes in a condemnation case to the individually deeded lots
within a development; instead, it defined the relevant “parcel” to
include the development as a whole, so long as it is an “identifiable
unit of land” subject to “substantially common beneficial owner-
ship.”
The Court of Appeals majority clearly erred by relying on the fact that the
“common beneficial ownership between defendant and Milford Road
West Development Associates is extraneous to the deeds” to conclude
that Lyon Centers is not the pertinent “parcel.”
6
In essence, the Court of
Appeals majority engrafted on the definition of “parcel” additional
requirements not contained within it. Property under common, but
separate, ownership is often developed in phases, and it is foreseeable
that, in future condemnations, a taking from one phase of a commonly
owned series of developments may have significant effects on the value of
property used in later (or simply other) phases of the development. The
Legislature expressly provided that parcels having substantially common
ownership might be deemed to be a single parcel, even when they, as in
this case, are not contiguous.
In my view, the erroneous interpretation of the term “parcel” also
infected the Court of Appeals majority decision in regard to the amount
of just compensation. On one hand, the Court of Appeals majority
“assume[d], without deciding,” that Lyon Centers was an identifiable
unit of land with common ownership, yet on the other hand held that,
4
MCL 213.51(g).
5
Lyon Charter Twp, 292 Mich App at 670.
6
Id.
O
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909
because the right of control defendant relied on derived from the master
deed for the Lyon Towne Center, which created no rights within Lyon
Crossing, defendant could not recover for any impairment of the value of
Lyon Crossing.
7
Had the Court of Appeals majority truly assumed
without deciding that Lyon Centers was an identifiable unit of land with
common ownership, the Court of Appeals majority would have recognized
that the easement within Lyon Centers must necessarily also be subject
to common ownership.
Last, and most troubling, is that this Court’s order leaves in place a
rule of law barring just compensation awards when a condemning
governmental entity characterizes a loss of a property’s market value as
attributable to being “outpositioned” in the market place. While plaintiff
correctly notes that no case directly supports this proposition, plaintiff
concedes that no case directly contravenes this proposition either. Indeed,
no Michigan court has previously addressed the question of just compen-
sation under these particular circumstances. However, this does not
mean that the trial court abused its discretion by awarding defendant
just compensation under these particular circumstances. Instead, one
may reasonably conclude that the trial court’s award merely compen-
sated defendant for plaintiff’s taking of defendant’s property rights in a
manner that is wholly consistent with the well-established principle that
“[w]hen only part of a larger parcel is taken, as is the case here, the owner
is entitled to recover not only for the property taken, but also for any loss
in the value to his or her remaining property.”
8
In other words, although
these precise circumstances may never have been addressed by this Court
before, or perhaps more likely may never have been specifically identified
in the language of “outpositioning,” or “lost competitive disadvantage,”
the broader principles relied on by the trial court have certainly been
addressed by this Court on many occasions. Just as traditional principles
of free speech apply in a countless array of new circumstances regularly
arising in courts throughout the land, e.g., hate crimes, campaign finance
restrictions, regulatory prohibitions on commercial speech, antiharass-
ment laws, etc., traditional principles of just compensation apply in a
countless array of new circumstances regularly arising in those same
courts.
It is well established that the “proper measure of damages in a
condemnation case involving a partial taking consists of the fair market
value of the property taken plus severance damages to the remaining
property if applicable.”
9
“The purpose of just compensation is to put
property owners in as good a position as they would have been had their
7
Id. at 669-670.
8
M Civ JI 90.12.
9
Dep’t of Transp v VanElslander, 460 Mich 127, 130 (1999) (citations and
quotation marks omitted); see also 13 Powell, Real Property, § 79F.04[3][a],
p 79F-66.1 (“The law is well settled that takings of a part of an owner’s land
require not only that the owner be paid for the portion of the property that
is taken, but also for any diminution in value to the property that re-
mains.”).
910 493 M
ICHIGAN
R
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property not been taken from them.”
10
Accordingly, “the proper amount
of compensation for property takes into account all factors relevant to
market value.”
11
[A] guiding principle when awarding just compensation in a
condemnation suit is to “neither enrich the individual at the
expense of the public nor the public at the expense of the
individual” but to leave him “in as good a position as if his lands
had not been taken.” Thus, in a partial taking, the formula to
calculate the fair market value of the remainder parcel must
account for the fact that damages will vary from case to case,
depending on the unique circumstances of each taking. Restoring
the individual to his position before the taking will require a
flexible, case-by-case approach to damages.
[12]
Just compensation
“may perhaps depend on the effect which the appropriation may
have on the owner’s interest in the remainder, to increase or
diminish its value, in consequence of the use to which that taken
is to be devoted, or in consequence of the condition of the condition
[sic] in which it may leave the remainder in respect to convenience
ofuse....”
[
13
]
“In considering the effect of the taking upon the remainder, the after
value must take into account the proposed use of the project and the
effect of that use upon the remainder.”
14
“Damages to the remainder that
are to be reasonably anticipated from use of the property for the purpose
for which the condemnation is made, are relevant in determining the
compensation to be awarded for the taking.”
15
“Further, in valuing what
is left after the taking, you must assume that the [condemning authority]
will use its newly acquired property rights to the full extent allowed by
the law.”
16
Defendant’s appraiser testified that the value of the remain-
10
VanElslander, 460 Mich at 129 (citations and quotation marks
omitted).
11
Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 379
(2003) (emphasis added); see also VanElslander, 460 Mich at 129 (“Just
compensation means the full monetary equivalent of the property
taken.”) (emphasis added) (citations and quotation marks omitted).
12
Dep’t of Transp v Tomkins, 481 Mich 184, 198 (2008) (citation
omitted).
13
Tomkins, 481 Mich at 207, quoting 1 Cooley, Constitutional Limita-
tions (1st ed), p 565.
14
4A Nichols, Eminent Domain (3d ed), § 14A.06[3], p 14A-127.
15
Id., p 14A-129.
16
M Civ JI 90.12.
O
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C
ASES
911
der was reduced by $3 million as a result of the taking.
17
Plaintiff failed
to offer an alternative estimate. As mentioned, plaintiff took the position
throughout the proceedings that defendant’s property rights were not
affected by the taking.
18
Further, the Court of Appeals majority wholly failed to apply the
correct standard of review in this case. A trial court’s award of just
compensation is reviewed for an abuse of discretion: “The amount of
damages to be recovered by the property owner is generally left to the
discretion of the trier of fact after consideration of the evidence pre-
sented.”
19
“The determination of value and just compensation in a
condemnation case is not a matter of formula or artificial rules, but of
sound judgment and discretion based upon a consideration of all of the
evidence....”
20
An abuse of discretion occurs when the trial court
chooses an outcome falling outside the range of principled outcomes.
21
The standard is only once mentioned by the Court in a passing reference
to Oakland County Board of County Road Commissioners v Bald Moun-
tain West,
22
in which the Court of Appeals held that the trial court did not
abuse its discretion by admitting the defendant’s appraiser’s testimony.
The Court of Appeals majority in this case simply did not review the trial
court’s decision to determine whether the trial court had abused its
discretion. Rather, the Court of Appeals majority struck down the trial
court’s decision as a matter of law even though, as mentioned, no
Michigan court has previously addressed the question of just compensa-
tion under these circumstances.
The trial court relied on the principles discussed earlier and the
Michigan Civil Jury Instructions to calculate the award. M Civ JI 90.12
provides that, in valuing property left after a partial taking, the fact-
finder should take into account the following factors:
(1) its reduced size, (2) its altered shape, (3) reduced access, (4)
any change in utility or desirability of what is left after the taking,
17
See 13 Powell, § 79F.04[3][b][ii], p 79F-66.2 (“[S]everance damages
equal the difference between the value of the entire tract before the
taking and the value of the remainder after the taking.”).
18
It should be noted that plaintiff did argue that any property interest
was not affected because, as a practical matter, the water and sewer lines
would be installed underground with directional boring and would not
disrupt the surface of the property. Plaintiff obviously cannot support the
proposition that property rights are only affected by a physical disruption
to the property.
19
VanElslander, 460 Mich at 129.
20
M Civ JI 90.05.
21
People v Babcock, 469 Mich 247, 269 (2003).
22
Oakland Co Bd of Co Rd Comm’rs v Bald Mountain West, unpub-
lished opinion per curiam of the Court of Appeals, issued February 14,
2008 (Docket No. 275230).
912 493 M
ICHIGAN
R
EPORTS
(5) the effect of the applicable zoning ordinances on the remaining
property, and (6) the use which the [condemning authority] intends
to make of the property it is acquiring and the effect of that use upon
the owner’s remaining property.
[
23
]
The trial court applied these factors in arriving at its award.
Only defendant submitted evidence to the trial court regarding just
compensation. Defendant’s appraisal expert did not base his opinion on
the increased value of the otherwise useless land owned by the dealer-
ship. Rather, the expert focused on the value of defendant’s parcel. The
expert concluded that defendant’s parcel was reduced in value by $3
million as a result of the taking. Significantly, the trial court noted that
plaintiff submitted no alternative appraisal report. In determining the
value after the taking, defendant’s expert accounted for the loss of
desirability, loss of marketability, the purpose for which plaintiff was
going to use the property taken (to create a commercial enterprise on
property that otherwise could not be developed), and the effect of that use
on the owner’s remaining property. The expert opined that the remaining
unsold and unoccupied property in defendant’s development directly
suffered as a result of the act of governmental taking.
As a consequence of the Court of Appeals majority decision, and our
limited action here, defendant, whose property rights were undisputedly
taken by the government, receives nothing. For this reason, I question
the Court of Appeals majority’s conclusion that affirming the award in
favor of defendant “would seriously hinder future economic growth,
particularly in commercial and industrial markets.”
24
What developer
will invest multiple millions of dollars to develop unused land knowing
that the government can take the developer’s property rights to the
benefit of a private sector competitor without compensating the devel-
oper for the resulting diminution in the value of the property?
Further, I question the validity of the Court of Appeals majority’s
policy argument that “[t]o allow an award for lost competitive advantage
would be to allow the first developer in a geographic area to monopolize
real estate by placing unreasonably high cost barriers for competitors to
tap into public utility lines.”
25
First, the competitor ran the risk that
public utility lines would not be available when it purchased property for
which the competitor believed it would not need to tap into public utility
lines. Second, the competitor here did not negotiate the extension of
public utilities with defendant. Rather, the competitor unilaterally lob-
bied plaintiff to condemn an easement. Third, any monopolization of
public utility lines could have been avoided had plaintiff at all indicated
a desire to extend those public utility lines north of I-96 through Lyon
Centers. Plaintiff expressly agreed to a submitted “utility and grading
plan,” a “storm water management” plan, and various other design
documents incorporated within the planned development agreements.
23
Emphasis added.
24
Lyon Charter Twp, 292 Mich App at 673-674.
25
Id. at 675.
O
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C
ASES
913
There is no evidence that any of these documents considered the
possibility of extending utility lines outside of Lyon Crossing. Only after
defendant installed utility lines at significant cost to benefit its condo-
minium units and the condominium project in general did plaintiff
consider extending the utility lines in this manner. In my view, plaintiff
was in the best position to prevent any so-called monopolistic effect by
negotiating the extension of utility lines over private property in the
planned development agreements.
After taking these property rights, plaintiff in essence gave these
rights to a private entity, no doubt with the expectation of generating
additional tax revenue for the very taking it had facilitated. All this was
done while being indemnified and held harmless by the private entity
that benefitted from plaintiff’s actions. The trial court did not err by
concluding that Lyon Centers was the relevant parcel and that defendant
had property rights that were affected by plaintiff’s taking. Further, the
trial court did not abuse its discretion in awarding defendant just
compensation. I would reverse the judgment of the Court of Appeals and
reinstate the trial court’s judgment.
M
ARKMAN
and M
ARY
B
ETH
K
ELLY
, JJ., joined the statement of Z
AHRA
,J.
P
EOPLE V
V
EILLEUX
, No. 145142; Court of Appeals No. 302335. On
November 14, 2012, the Court heard oral argument on the application for
leave to appeal the March 29, 2012, judgment of the Court of Appeals. On
order of the Court, the application is again considered. MCR 7.302(H)(1).
In lieu of granting leave to appeal, we reverse the judgment of the Court
of Appeals and we remand this case to the Oakland Circuit Court for it to
correct the judgment of sentence by striking those provisions making the
sentences for contempt consecutive to each other and consecutive to
defendant’s sentence for the underlying felony. “A consecutive sentence
may be imposed only if specifically authorized by statute.” People v Lee,
233 Mich App 403, 405 (1999). Contrary to the lower courts’ holdings,
MCL 768.7a(1) does not specifically authorize the consecutive sentences
imposed here. MCL 768.7a(1) only applies to “[a] person who is incar-
cerated in a penal or reformatory institution in this state, or who escapes
from such an institution.” When defendant committed the contempts of
court at issue here, he was not at the time incarcerated in a penal or
reformatory institution and he was not an escapee. Finally, we are not
persuaded that defendant waived the issue of whether his contempt
sentences were properly imposed consecutively to each other by not
raising it when he was originally sentenced. After defendant was origi-
nally sentenced, the order appointing appellate counsel only referenced
defendant’s drug sentence; it did not mention the contempt sentences
and appellate counsel withdrew from the case without addressing the
contempt sentences. The ex parte motion to rescind the order appointing
him does not suggest that he discussed anything involving the contempt
sentences with defendant. However, after defendant was sentenced for
his probation violation and the contempt sentences were reimposed, the
order appointing new appellate counsel did mention the contempt
sentences, and defendant’s attorney did challenge such sentences. Given
these circumstances, we hold that the challenges to the contempt
sentences have been properly preserved. Because we hold that the trial
914 493 M
ICHIGAN
R
EPORTS
court erred in imposing consecutive sentences under MCL 768.7a(1),
1
and because defendant has already served his concurrent sentences, it is
unnecessary for us to address whether under the circumstances of this
case the trial court acted properly in holding defendant in contempt
multiple times.
Summary Disposition December 20, 2012:
I
LE V
F
OREMOST
I
NSURANCE
C
OMPANY
, No. 143627; reported below: 293
Mich App 309. On order of the Court, leave to appeal having been
granted and the briefs and oral arguments of the parties having been
considered by the Court, we reverse the July 14, 2011, judgment of the
Court of Appeals and we remand this case to the Wayne Circuit Court for
entry of summary disposition in favor of the defendant. The Court of
Appeals erroneously concluded that the underinsured motorist coverage
in the insurance policy issued by the defendant to Darryl Ile was illusory
because Ile could reasonably believe that his insurance premium pay-
ment included some charge for underinsurance when there are no
circumstances in which Ile could recover underinsured motorist benefits
given the policy limits Ile selected. We have expressly rejected the notion
that the perceived expectations of a party may override the clear
language of a contract.
1
Moreover, when read as a whole, the clear language of the policy
provides for combined uninsured and underinsured motorist coverage
that, as promised, would have operated to supplement any recovery by Ile
to ensure that he received a total recovery of up to $20,000/$40,000 (the
policy limit) had the other vehicle involved in the crash been either
uninsured or insured in an amount less than $20,000/$40,000. That such
coverage would, under the terms of the policy, always be labeled “unin-
sured,” as opposed to “underinsured,” does not make the policy illusory.
M
ARILYN
K
ELLY
,J.(dissenting). I dissent from the majority’s order
reversing the judgment of the Court of Appeals and remanding the case
to the trial court for entry of summary disposition in favor of defendant.
This case, like others, is rife with issues that warrant a more detailed
analysis than the majority’s order provides.
1
For instance, the order states that “when read as a whole, the clear
language of the policy provides for combined uninsured and underin-
sured motorist coverage....”Accordingly, it holds that the policy is
not illusory. It is unclear what policy language the majority relies on to
1
Because the lower courts relied on MCL 768.7a(1) in imposing the
consecutive sentences, we need not address whether another authority,
statutory or otherwise, exists for the imposition of consecutive sentences
in this case.
1
Wilkie v Auto-Owners Ins Co, 469 Mich 41 (2003).
1
See, e.g., Kroon-Harris v Michigan, 477 Mich 988, 989 (2007) (M
ARILYN
K
ELLY
, J., dissenting) (“Because the majority’s order leaves fundamental
questions unanswered, it is inadequate.”).
O
RDERS IN
C
ASES
915
reach this conclusion. Similarly, the order does not discuss the policy’s
reduction clause, which prohibits a policy holder from recovering more
than the $20,000/$40,000 uninsured/underinsured limits. As a conse-
quence, the reader is left without an understanding of how those limits
apply to this case and whether plaintiff has in fact been made whole
under the policy. Furthermore, it is uncertain from the order why
summary disposition in favor of defendant is appropriate. Simply because
the majority disavows the doctrine of reasonable expectations
2
and holds
that the policy is not illusory does not automatically entitle defendant to
relief.
In sum, I would not dispose of this case by order. The parties deserve
a more thorough explanation of the majority’s decision.
C
AVANAGH
, J., joined the statement of M
ARILYN
K
ELLY
,J.
H
ATHAWAY
,J.(dissenting). I believe that the Court of Appeals majority
reached the correct result. Accordingly, I would affirm the judgment of
the Court of Appeals.
Summary Disposition December 21, 2012:
P
EOPLE V
O
RLEWICZ
, No. 143453; reported below: 293 Mich App 96. By
order of May 21, 2012, the application for leave to appeal the judgment of
the Court of Appeals was held in abeyance pending the decision in People
v Vaughn (Docket No. 142627). The case having been decided on July 9,
2012, 491 Mich 642 (2012), the application is again considered and,
pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we
remand this case to the Wayne Circuit Court for consideration of
defendant’s argument under Miller v Alabama, 567 US ___; 132 S Ct
2455; 183 L Ed 2d 407 (2012). In all other respects, leave to appeal is
denied.
Leave to Appeal Denied December 21, 2012:
In re K
IECA
, No. 146162; Court of Appeals No. 307194.
M
ARILYN
K
ELLY
, J., would grant leave to appeal.
A
LMUTAWA V
M
EYERS
, No. 146217; Court of Appeals No. 306853.
M
ARILYN
K
ELLY
, J., would grant leave to appeal.
Leave to Appeal Denied December 26, 2012:
P
EOPLE V
L
OREN
G
REENE
, No. 144339; Court of Appeals No. 304286.
P
EOPLE V
L
OREN
G
REENE
, No. 144341; Court of Appeals No. 306962.
P
EOPLE V
W
AYMOND
T
HOMAS
, No. 144487; Court of Appeals No. 306694.
P
EOPLE V
G
REEN
, No. 144658; Court of Appeals No. 299872.
2
For a thorough discussion of the doctrine of reasonable expectations,
see Wilkie v Auto-Owners Ins Co, 469 Mich 41, 65-70 (2003) (C
AVANAGH
,J.,
dissenting).
916 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
E
LRICK
C
OOPER
, No. 144660; Court of Appeals No. 296677.
P
EOPLE V
P
ATRICK
J
ONES
, No. 144741; Court of Appeals No. 301685.
P
EOPLE V
F
ORGEON
, No. 144923; Court of Appeals No. 301707.
P
EOPLE V
L
OREN
G
REENE
, No. 144941; Court of Appeals No. 307894.
P
ATTON V
V
ILLAGE OF
C
ASSOPOLIS
, No. 145009; Court of Appeals No.
301754.
C
AVANAGH
, J., did not participate due to a familial relationship with
counsel of record.
P
EOPLE V
E
UGENE
H
OPKINS
, No. 145075; Court of Appeals No. 300693.
P
EOPLE V
S
IMMONS
, No. 145197; Court of Appeals No. 301661.
P
EOPLE V
C
OREY
H
ARRIS
, No. 145256; Court of Appeals No. 304046.
P
EOPLE V
J
ERRY
S
MITH
, No. 145314; Court of Appeals No. 305113.
P
EOPLE V
P
ITTS
, No. 145315; Court of Appeals No. 301545.
P
EOPLE V
T
ARRANISHA
D
AVIS
, No. 145351; Court of Appeals No. 297743.
P
EOPLE V
B
URNS
-P
ERRY
, No. 145374; Court of Appeals No. 306814. The
motion to remand for resentencing is denied without prejudice to any
relief that the defendant may seek under Miller v Alabama, 567 US ___;
132 S Ct 2455; 183 L Ed 2d 407 (2012).
P
EOPLE V
K
ELLER
, No. 145396; Court of Appeals No. 304022.
P
EOPLE V
K
NIGHT
, No. 145435; Court of Appeals No. 306792.
K
RUEGER V
D
EPARTMENT OF
T
REASURY
, No. 145438; reported below: 296
Mich App 656.
P
EOPLE V
E
RIC
M
ILLER
, No. 145453; Court of Appeals No. 300209.
P
EOPLE V
G
ORDON
, No. 145472; Court of Appeals No. 302799.
C
ALHOUN
C
OUNTY V
B
LUE
C
ROSS
&B
LUE
S
HIELD OF
M
ICHIGAN
, No. 145490;
reported below: 297 Mich App 1.
P
EOPLE V
S
TEVEN
C
OOPER
, No. 145503; Court of Appeals No. 307283.
P
EOPLE V
M
ATTI
, No. 145520; Court of Appeals No. 307622.
P
EOPLE V
R
IGGINS
, No. 145537; Court of Appeals No. 307591.
P
EOPLE V
B
RIGGS
, No. 145547; Court of Appeals No. 308766.
P
EOPLE V
Q
UILLAN
, No. 145585; Court of Appeals No. 300340.
P
EOPLE V
C
LARK
, No. 145598; Court of Appeals No. 307620.
P
EOPLE V
M
AC
A
RTHUR
, No. 145599; Court of Appeals No. 308190.
O
RDERS IN
C
ASES
917
P
EOPLE V
R
YAN
P
ARRISH
, No. 145600; Court of Appeals No. 308574.
P
EOPLE V
R
ITTER
, No. 145608; Court of Appeals No. 310030.
P
EOPLE V
C
HRISTA
F
REDERICK
, No. 145609; Court of Appeals No. 306787.
P
EOPLE V
H
ODGES
, No. 145634; Court of Appeals No. 300969.
P
EOPLE V
B
LANKENSHIP
, No. 145639; Court of Appeals No. 309196.
D
AVIS V
C
ITY OF
F
LINT
, No. 145649; Court of Appeals No. 303893.
P
EOPLE V
J
OSEPH
E
RBY
F
REEMAN
, No. 145654; Court of Appeals No.
308112.
P
EOPLE V
G
LADISH
, No. 145657; Court of Appeals No. 309252.
P
EOPLE V
E
VERETT
, No. 145659; Court of Appeals No. 302802.
P
EOPLE V
V
ARTINELLI
, No. 145685; Court of Appeals No. 308509.
P
EOPLE V
P
ROCTOR
, No. 145687; Court of Appeals No. 303493.
P
EOPLE V
J
EFFREY
J
ONES
, No. 145692; reported below: 297 Mich App 80.
H
OPP V
P
ALACE
S
PORTS
&E
NTERTAINMENT
, No. 145693; Court of Appeals
No. 307119.
P
EOPLE V
B
URKE
, No. 145696; Court of Appeals No. 307702.
M
OORE V
P
UGSLEY
C
ORRECTIONAL
F
ACILITY
W
ARDEN
, No. 145710; Court of
Appeals No. 308850.
P
EOPLE V
F
LORES
, No. 145719; Court of Appeals No. 310021.
P
EOPLE V
F
ERRELL
, No. 145720; Court of Appeals No. 310447.
P
EOPLE V
U
SHER
, No. 145721; Court of Appeals No. 310240.
P
EOPLE V
E
DDIE
S
MITH
, No. 145722; Court of Appeals No. 310753.
P
EOPLE V
E
DDIE
S
MITH
, No. 145724; Court of Appeals No. 310754.
P
EOPLE V
A
NTHONY
Y
OUNG
, No. 145726; Court of Appeals No. 306681.
P
EOPLE V
E
CHOLS
, No. 145735; Court of Appeals No. 303354.
P
EOPLE V
J
AVON
T
HOMAS
, No. 145736; Court of Appeals No. 302344.
P
EOPLE V
D
ANTZLER
, No. 145738; Court of Appeals No. 303252.
P
EOPLE V
D
OTHARD
, No. 145739; Court of Appeals No. 299237.
P
EOPLE V
E
ISEN
, No. 145741; reported below: 296 Mich App 326.
C
ALLISON V
H
ATZEL
&B
UEHLER
,I
NC
, No. 145742; Court of Appeals No.
301729.
P
EOPLE V
K
EYS
, No. 145746; Court of Appeals No. 303588.
P
EOPLE V
W
OOLWORTH
, No. 145749; Court of Appeals No. 297824.
918 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
B
LACKWELL
, No. 145757; Court of Appeals No. 302473.
P
EOPLE V
D
RAKE
, No. 145780; Court of Appeals No. 303941.
P
EOPLE V
R
AYMONE
R
OGERS
, No. 145787; Court of Appeals No. 310558.
P
EOPLE V
L
A
C
ASSE
, No. 145792; Court of Appeals No. 309017.
P
EOPLE V
M
EDLIN
, No. 145796; Court of Appeals No. 304402.
P
EOPLE V
W
OODARD
, No. 145797; Court of Appeals No. 305131.
P
EOPLE V
M
OSLEY
, No. 145798; Court of Appeals No. 305478.
P
EOPLE V
C
ULLENS
, No. 145819; Court of Appeals No. 296492.
P
EOPLE V
C
ODDINGTON
, No. 145820; Court of Appeals No. 307286.
P
EOPLE V
C
LARDY
, No. 145822; Court of Appeals No. 308786.
C
OMMUNITY
S
HORES
B
ANK V
B
ABBITT
’
S
S
PORT
C
ENTER
, LLC, No. 145824;
Court of Appeals No. 305235.
P
EOPLE V
O
STRANDER
, No. 145827; Court of Appeals No. 302687.
P
EOPLE V
D
ARRIUS
G
REENE
, No. 145830; Court of Appeals No. 293513.
P
EOPLE V
E
LLEDGE
, No. 145846; Court of Appeals No. 311099.
P
EOPLE V
K
ENNETH
E
DWARDS
, No. 145847; Court of Appeals No. 309770.
P
EOPLE V
E
LLEDGE
, No. 145848; Court of Appeals No. 311111.
P
EOPLE V
K
RACZKOWSKI
, No. 145849; Court of Appeals No. 304760.
P
EOPLE V
D
ON
J
ACKSON
, No. 145850; Court of Appeals No. 304474.
P
EOPLE V
F
REDERICK
M
ARTIN
, No. 145851; Court of Appeals No. 302405.
P
EOPLE V
T
ARVER
, No. 145852; Court of Appeals No. 300775.
P
EOPLE V
C
OTY
M
C
C
AULEY
, No. 145853; Court of Appeals No. 302027.
P
EOPLE V
L
ARRY
H
UNTER
, No. 145854; Court of Appeals No. 300689.
P
EOPLE V
L
EAK
, No. 145857; Court of Appeals No. 304713.
P
EOPLE V
S
EAN
R
AMSEY
, No. 145859; Court of Appeals No. 308813.
P
EOPLE V
B
LANKS
, No. 145867; Court of Appeals No. 307502.
P
EOPLE V
H
OCH
, No. 145869; Court of Appeals No. 309928.
P
EOPLE V
K
ASPER
, No. 145870; Court of Appeals No. 304481.
P
EOPLE V
R
OBERT
B
ROWN
, No. 145871; Court of Appeals No. 311280.
P
EOPLE V
P
FAFFINGER
, No. 145875; Court of Appeals No. 310908.
C
HRYSLER
F
INANCIAL
S
ERVICES
A
MERICAS
,LLCvD
EPARTMENT OF
T
REASURY
,
No. 145877; Court of Appeals No. 304105.
O
RDERS IN
C
ASES
919
P
EOPLE V
P
OLSTON
, No. 145880; Court of Appeals No. 303302.
P
EOPLE V
A
KHMEDOV
, No. 145885; reported below: 297 Mich App 745.
P
EOPLE V
H
OBBS
, No. 145888; Court of Appeals No. 306002.
P
EOPLE V
V
AN
B
ROKLIN
, No. 145889; Court of Appeals No. 303638.
P
EOPLE V
C
OATSWORTH
, No. 145903; Court of Appeals No. 304694.
P
EOPLE V
O
BAR
E
LLIS
, No. 145904; Court of Appeals No. 303095.
P
EOPLE V
G
REGORY
, No. 145905; Court of Appeals No. 304973.
P
EOPLE V
K
IRKLAND
, No. 145906; Court of Appeals No. 310626.
P
EOPLE V
C
AMEL
, No. 145907; Court of Appeals No. 309059.
P
EOPLE V
M
ANNING
, No. 145908; Court of Appeals No. 299518.
C
AVANAGH
, J., would grant leave to appeal.
E
VANS V
R
EDWOOD
D
ENTAL
G
ROUP
, No. 145911; Court of Appeals No.
308799.
T
HOMAS V
D
EPARTMENT OF
T
REASURY
, No. 145918; Court of Appeals No.
303184.
P
EOPLE V
C
RAWFORD
, No. 145919; Court of Appeals No. 302648.
C
AVANAGH
, J., would grant leave to appeal.
P
EOPLE V
S
AM
S
ANDERS
, No. 145920; Court of Appeals No. 303989.
C
LARK V
M
EITZNER
, No. 145922; Court of Appeals No. 304639.
P
EOPLE V
S
ACHS
, No. 145928; Court of Appeals No. 308837.
P
EOPLE V
B
YRD
, No. 145929; Court of Appeals No. 309140.
P
EOPLE V
L
YLE
I
NGRAM
, No. 145931; Court of Appeals No. 310665.
P
EOPLE V
C
OMSTOCK
, No. 145934; Court of Appeals No. 311523.
P
EOPLE V
M
ONCADO
, No. 145936; Court of Appeals No. 305368.
P
EOPLE V
C
HARLES
H
AWKINS
, No. 145941; Court of Appeals No. 308456.
P
EOPLE V
O’C
ONNOR
, No. 145944; Court of Appeals No. 311904.
G
ARY V
C
OMCAST
E
NTERTAINMENT
G
ROUP
, No. 145949; Court of Appeals No.
304720.
P
EOPLE V
M
ARCUS
J
ACKSON
, No. 145953; Court of Appeals No. 311436.
P
EOPLE V
I
SAAC
H
ARRIS
, No. 145954; Court of Appeals No. 308389.
P
EOPLE V
A
IKENS
, No. 145957; Court of Appeals No. 307538.
P
EOPLE V
C
RENSHAW
, No. 145959; Court of Appeals No. 304392.
920 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
K
INCAID
, No. 145960; Court of Appeals No. 311860.
P
EOPLE V
P
ROSKIE
, No. 145980; Court of Appeals No. 309134.
P
EOPLE V
R
ICHARD
R
OBINSON
, No. 145983; Court of Appeals No. 310963.
P
EOPLE V
B
OWDRY
, No. 145985; Court of Appeals No. 310060.
P
EOPLE V
D
IAZ
, No. 145989; Court of Appeals No. 305016.
P
EOPLE V
J
AMES
M
C
D
ONALD
, No. 145991; Court of Appeals No. 310168.
P
EOPLE V
E
USEAN
J
ENNINGS
, No. 145992; Court of Appeals No. 307331.
P
EOPLE V
H
UGHES
, No. 145993; Court of Appeals No. 301332.
P
EOPLE V
S
IMON
P
HILLIPS
, Nos. 145997 and 145998; Court of Appeals
Nos. 298034 and 307770.
P
EOPLE V
S
EEMAN
, No. 146003; Court of Appeals No. 311718.
P
EOPLE V
A
NTONIO
A
LEXANDER
, No. 146007; Court of Appeals No. 304855.
P
EOPLE V
F
RANK
S
MITH
, No. 146009; Court of Appeals No. 311525.
P
EOPLE V
F
LETCHER
D
EAN
, No. 146013; Court of Appeals No. 305168.
J
OHNS V
W
IXOM
B
UILDERS
S
UPPLY
,I
NC
, No. 146014; Court of Appeals No.
299542.
P
EOPLE V
M
ICHAEL
D
UNCAN
, No. 146026; Court of Appeals No. 311786.
W
EISS V
S
UBURBAN
M
OBILITY
A
UTHORITY FOR
R
EGIONAL
T
RANSPORTATION
,
No. 146036; Court of Appeals No. 304269.
H
ATHAWAY
, J., would grant leave to appeal.
P
EOPLE V
J
OSEPH
H
OWARD
, No. 146037; Court of Appeals No. 305859.
P
EOPLE V
M
ETCALFE
, No. 146038; Court of Appeals No. 311068.
P
EOPLE V
G
ERMAINE
N
ELSON
, No. 146039; Court of Appeals No. 311281.
P
EOPLE V
S
TEVENS
, No. 146081; Court of Appeals No. 304033.
P
EOPLE V
W
YNN
, Nos. 146087 and 146088; Court of Appeals Nos.
305382 and 305384.
P
EOPLE V
P
ROCTOR
, No. 146135; Court of Appeals No. 305964.
P
EOPLE V
N
EIL
B
ENNETT
, No. 146141; Court of Appeals No. 311706.
P
EOPLE V
B
ASTIEN
, No. 145882; Court of Appeals No. 304817.
Reconsideration Granted December 26, 2012:
L
ECH V
H
UNTMORE
E
STATES
C
ONDOMINIUM
A
SSOCIATION
, Nos. 144356 and
1443567; Court of Appeals Nos. 296489 and 297196. Summary disposi-
tion at 491 Mich 937. On order of the Court, the motion for reconsideration
O
RDERS IN
C
ASES
921
of this Court’s June 20, 2012, order is considered, and it is granted in part.
On reconsideration, we modify our previous order so as to remand this case
to the Court of Appeals for reconsideration of the issues raised by the
plaintiff in Court of Appeals Docket No. 297196.
Reconsideration Denied December 26, 2012:
P
EOPLE V
B
ACON
, No. 144089; Court of Appeals No. 303355. Leave to
appeal denied at 491 Mich 941.
P
EOPLE V
D
ERRICK
C
OLEMAN
, No. 144177; Court of Appeals No.
304578. Leave to appeal denied at 491 Mich 941.
P
EOPLE V
M
EISSNER
, No. 144274; reported below: 294 Mich App
438. Leave to appeal denied at 491 Mich 938.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant reconsid-
eration and, on reconsideration, would grant leave to appeal.
P
EOPLE V
I
VORY
, No. 144779; Court of Appeals No. 300861. Leave to
appeal denied at 491 Mich 945.
V
UCAJ V
CM T
RANSPORTATION
,I
NC
, No. 144798; Court of Appeals No.
304546. Leave to appeal denied at 491 Mich 945.
H
ALFORD V
C
ITY OF
F
LINT
, No. 144843; Court of Appeals No.
304068. Leave to appeal denied at 491 Mich 946.
C
AVANAGH
and H
ATHAWAY
, JJ., would grant reconsideration and, on
reconsideration, would grant leave to appeal.
P
EOPLE V
B
ANKS
, No. 144961; Court of Appeals No. 306929. Leave to
appeal denied at 492 Mich 856.
P
EOPLE V
R
YON
P
HILLIPS
, No. 145134; Court of Appeals No.
309212. Leave to appeal denied at 492 Mich 869.
P
EOPLE V
U
RBINA
, No. 145156; Court of Appeals No. 303650. Leave to
appeal denied at 492 Mich 869.
P
EOPLE V
J
OSE
P
EREZ
, No. 145187; Court of Appeals No. 303305. Leave
to appeal denied at 492 Mich 869.
P
EOPLE V
C
HRISTOPHER
S
MITH
, No. 145231; Court of Appeals No.
308835. Leave to appeal denied at 492 Mich 869.
P
EOPLE V
C
HEN
, No. 145270; Court of Appeals No. 301153. Leave to
appeal denied at 493 Mich 866.
C
AVANAGH
,M
ARILYN
K
ELLY
, and H
ATHAWAY
, JJ., would grant reconsid-
eration and, on reconsideration, would grant leave to appeal.
Leave to Appeal Denied January 11, 2013:
P
EOPLE V
B
RANDON
J
OHNSON
, No. 145743; Court of Appeals No. 304459.
922 493 M
ICHIGAN
R
EPORTS
M
ARKMAN
,J.(concurring). Although I concur in the order, I write
separately to state my agreement with the Court of Appeals partial
dissent that the victim’s statement here did not constitute hearsay and,
in any event, was admissible under the hearsay exception for statements
“made for purposes of medical treatment or medical diagnosis.” MRE
803(4). A statement is only hearsay if it is offered to prove the truth of the
matter asserted. MRE 801(c). Here, the testimony was not offered to
prove that defendant “carries a gun,” but was instead offered to describe
the process of the examination of the victim and the gathering of the
information contained in necessary medical forms. Further, even if the
testimony did constitute hearsay, it was reasonably necessary for medical
diagnosis or treatment of the victim. The Court of Appeals held in People
v Mahone, 294 Mich App 208, 214-215 (2011), that particularly in sexual
assault cases, in which injuries might be “latent” or “psychological” in
nature, a victim’s complete history and recitation of the totality of the
circumstances of the assault are properly considered statements made for
purposes of medical treatment or diagnosis.
H
ATHAWAY
, J., did not participate.
P
EOPLE V
A
RMSTRONG
, No. 145856; Court of Appeals No. 308991.
H
ATHAWAY
, J., did not participate.
Summary Disposition January 18, 2013:
P
EOPLE V
K
IYOSHK
, No. 143469; Court of Appeals No. 295552. On
October 10, 2012, the Court heard oral argument on the application for leave
to appeal the June 2, 2011, judgment of the Court of Appeals. On order of the
Court, the application is again considered. MCR 7.302(H)(1). In lieu of
granting leave to appeal, we reverse the judgment of the Court of Appeals
and remand this case to that court for consideration of defendant’s ineffec-
tive assistance of counsel claim. A circuit court’s authority to exercise
jurisdiction over a defendant charged with a felony committed as a minor
constitutes a question of personal, not subject matter, jurisdiction. “Subject
matter jurisdiction concerns a court’s abstract power to try a case of the kind
or character of the one pending and is not dependent on the particular facts
of the case.” People v Lown, 488 Mich 242, 268 (2011) (emphasis, citations,
and quotation marks omitted). The circuit court possessed subject matter
jurisdiction here, as “Michigan circuit courts are courts of general jurisdic-
tion and unquestionably have [subject matter] jurisdiction over felony
cases.” Id. Defendant’s age when the offense was committed does not
pertain to the “kind or character” of the case, but rather constitutes a
defendant-specific, “particular fact[].” Whether defendant was of an age that
made circuit court jurisdiction appropriate is thus a question of personal
jurisdiction. See People v Veling, 443 Mich 23, 31-32 (1993) (noting that
statutory procedures that divested the juvenile court of exclusive jurisdiction
over qualifying juveniles who committed certain offenses operated to give
“the circuit courts personal jurisdiction over those juveniles”) (emphasis
added); accord Twyman v State, 459 NE2d 705, 708 (Ind, 1984) (“The age of
the [juvenile] offender...ismerely a restriction on the personal jurisdiction
possessed by a criminal court.”); State v Emery, 636 NW2d 116, 122 (Iowa,
O
RDERS IN
C
ASES
923
2001), quoting State v Marks, 920 P2d 19, 22 (Ariz App, 1996) (consequence
of flawed transfer proceeding from juvenile to adult court is to “deprive the
adult division of personal jurisdiction”); Sawyers v State, 814 SW2d 725, 729
(Tenn, 1991) (absence of proper transfer order from juvenile to criminal
court “cannot be said to affect the court’s subject matter jurisdiction”); State
v Kelley, 206 Conn 323, 332 (1988) (“[Q]uestions relating to the propriety of
the transfer of a juvenile from the docket for Juvenile Matters to the regular
criminal docket do not implicate the Superior Court’s subject matter
jurisdiction.”). “[A] party may stipulate to, waive, or implicitly consent to
personal jurisdiction.” Lown, 488 Mich at 268 (citations omitted). Therefore,
by entering a guilty plea in the circuit court, and failing to contest the circuit
court’s jurisdiction, defendant implicitly consented to that court’s exercise of
personal jurisdiction.
H
ATHAWAY
and M
C
C
ORMACK
, JJ., did not participate.
M
ICHIGAN
I
NSURANCE
C
OMPANY V
N
ATIONAL
L
IABILITY
&F
IRE
I
NSURANCE
C
OMPANY
, Nos. 144771 and 144792; Court of Appeals No. 301980. On
January 10, 2013, the Court heard oral argument on the applications for
leave to appeal the February 14, 2012, judgment of the Court of Appeals.
On order of the Court, the applications are again considered. MCR
7.302(H)(1). In lieu of granting leave to appeal, we reverse the judgment
of the Court of Appeals and we remand this case to the Oakland Circuit
Court for entry of an order granting summary disposition to the
defendant. Pursuant to MCL 500.3114(1), the adult foster care resident
injured as a pedestrian in this case is not a “relative” of the adult foster
care corporation named in the insurance policy. Accordingly, the priority
for payment of personal injury protection benefits rests with the plaintiff
as the insurer of the owner of the vehicle involved in the accident, MCL
500.3115(1), and the Court of Appeals therefore erred by holding that the
resident may be subject to coverage under the defendant’s no-fault
automobile insurance policy issued to the adult foster care corporation.
C
AVANAGH
, J., would deny leave to appeal.
H
ATHAWAY
, J., did not participate.
B
AXTER V
G
EURINK
, No. 145205; Court of Appeals No. 301748. On order
of the Court, the application for leave to appeal the April 24, 2012,
judgment of the Court of Appeals is considered, and it is denied. The
application for leave to appeal as cross-appellant is considered and,
pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we
reverse in part the judgment of the Court of Appeals. Michigan generally
follows the “raise or waive” rule of appellate review. Walters v Nadell, 481
Mich 377, 387 (2008). Failure to timely raise an issue waives review of
that issue on appeal. Id., citing Napier v Jacobs, 429 Mich 222, 227
(1987). Because the plaintiffs did not challenge the hourly rate or the
amount of time expended before the trial court, the issue regarding
actual costs was not preserved for appellate review. Therefore, there is no
need for an evidentiary hearing. We remand this case to the 61st District
Court for entry of an order granting the defendant the entire amount of
attorney fees and costs requested.
We do not retain jurisdiction.
H
ATHAWAY
, J., did not participate.
924 493 M
ICHIGAN
R
EPORTS
P
ARKS V
D
EPARTMENT OF
C
ORRECTIONS
, No. 145873; Court of Appeals No.
306974. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal,
we reverse the order denying the plaintiff’s complaint for habeas corpus.
The Department of Corrections does not have authority to rescind a final
order of discharge from parole once it is delivered to the parolee. People v
Holder, 483 Mich 168 (2009). According to its own internal operating
procedures, it is the responsibility of the Department of Corrections to
accurately determine credit prior to delivering a parole discharge. We
remand this case to the Court of Appeals for reconsideration of the
defendant’s complaint for habeas corpus consistent with this order.
We do not retain jurisdiction.
H
ATHAWAY
, J., did not participate.
Leave to Appeal Denied January 18, 2013:
P
EOPLE V
H
ENLEY
, No. 144643; Court of Appeals No. 306817.
H
ATHAWAY
, J., did not participate.
H
OFFMAN V
B
ARRETT
, No. 144875; reported below: 295 Mich App
649. On January 10, 2013, the Court heard oral argument on the
application for leave to appeal the March 8, 2012, judgment of the Court
of Appeals. On order of the Court, the application is again considered, and
it is denied, there being no majority in favor of granting leave to appeal
or taking other action.
Y
OUNG
, C.J., and M
ARKMAN
and Z
AHRA
, JJ., would reverse the judgment
of the Court of Appeals.
H
ATHAWAY
, J., did not participate.
P
EOPLE V
D
ARIUS
T
HOMAS
, No. 145484; Court of Appeals No. 306932.
H
ATHAWAY
, J., did not participate.
M
ILLER V
SMH
ONG
A
SSOCIATES
,I
NC
, No. 145633; Court of Appeals No.
302016.
H
ATHAWAY
, J., did not participate.
P
EOPLE V
G
OURD
, No. 145688; Court of Appeals No. 310748.
H
ATHAWAY
, J., did not participate.
P
EOPLE V
M
ILES
, No. 145940; Court of Appeals No. 302497.
H
ATHAWAY
, J., did not participate.
S
MITH V
R
OYAL
O
AK
T
OWNSHIP
, No. 145963; Court of Appeals No.
303939.
H
ATHAWAY
, J., did not participate.
H
OME
-O
WNERS
I
NSURANCE
C
OMPANY V
D
OWNS
, Nos. 146011 and 146012;
Court of Appeals Nos. 301105 and 301775.
H
ATHAWAY
, J., did not participate.
D
AVIS V
E
MERGENCY
F
INANCIAL
M
ANAGER FOR THE
D
ETROIT
P
UBLIC
S
CHOOLS
,
No. 146187; Court of Appeals No. 313297.
H
ATHAWAY
, J., did not participate.
O
RDERS IN
C
ASES
925
In re T
UCKER
, No. 146382; Court of Appeals No. 308915.
H
ATHAWAY
, J., did not participate.
In re A
USTIN
, No. 146441; Court of Appeals No. 312912.
H
ATHAWAY
, J., did not participate.
Leave to Appeal Granted January 24, 2013:
P
EOPLE V
S
TANLEY
D
UNCAN
and P
EOPLE V
V
ITA
D
UNCAN
, Nos. 146295 and
146296; Court of Appeals Nos. 312637 and 312638. The application for
leave to appeal the November 29, 2012, judgment of the Court of Appeals
is considered, and it is granted, limited to the issue whether the witness
was “unavailable” for the purposes of MRE 804(a). Pursuant to MCR
7.302(H)(1), we vacate as dicta those portions of the Court of Appeals’
judgment and the Macomb Circuit Court’s October 5, 2012, opinion
discussing whether the admission of the complainant’s preliminary
examination testimony would violate the defendants’ Confrontation
Clause rights pursuant to Crawford v Washington, 541 US 36; 124 S Ct
1354; 158 L Ed 2d 177 (2004).
The Clerk of the Court is directed to place this case on the April 2013
session calendar for argument and submission. Appellant’s brief and
appendix must be filed no later than February 26, 2013, and appellees’
brief and appendix, if appellees choose to submit an appendix, must be
filed no later than March 22, 2013.
Persons or groups interested in the determination of the issue
presented in this case may move the Court for permission to file briefs
amicus curiae.
Summary Disposition January 25, 2013:
M
ARSACK V
M
AEDEL
, No. 145239; Court of Appeals No. 291153. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we reverse
the judgment of the Court of Appeals and we remand this case to the
Sanilac Circuit Court for entry of summary disposition in favor of
defendant Claudia Maedel. Because “MCR 2.102 does not provide the
authority to issue a so-called ‘third’ summons,” Hyslop v Wojjusik, 252
Mich App 500, 506 (2002), plaintiff’s initial complaint “is deemed
dismissed without prejudice” as to Maedel. MCR 2.102(E)(1). Because
plaintiff did not file a new complaint until after the three-year statute of
limitations expired, MCL 600.5805(10), and this action is not “com-
menced by the personal representative of the deceased person” to toll the
statute of limitations pursuant to MCL 600.5852, defendant is entitled to
summary disposition. MCR 2.116(C)(7).
S
MITH V
D
EPARTMENT OF
H
UMAN
S
ERVICES
D
IRECTOR
, Nos. 145612, 145613,
145622, and 145623; Court of Appeals Nos. 309441 and 309894. On
November 15, 2012, the Court heard oral argument on the applications
for leave to appeal the June 26, 2012, judgment of the Court of Appeals.
Subsequently, the Legislature passed, and the Governor signed, 2012 PA
607, which amends MCL 400.57a and specifies additional limitations on
926 493 M
ICHIGAN
R
EPORTS
the defendant to provide family independence program assistance. The
defendant has now moved this Court to authorize compliance with the
newly enacted § 57a, regardless of any potential conflict between that
statute and the March 27, 2012, and April 10, 2012, orders of the Genesee
Circuit Court. Pursuant to MCR 7.316(A)(7), the defendant’s motion is
granted. We vacate the provisions of the circuit court orders and the
Court of Appeals’ judgment to the extent that they conflict with the
requirements of § 57a. In granting the defendant’s motion, we make no
statement as to the meaning, validity, or effect of 2012 PA 607. We
further direct the parties to file supplemental briefs within 21 days of the
date of this order, addressing whether any remaining questions regarding
the defendant’s actions prior to enactment of 2012 PA 607 are rendered
moot in light of 2012 PA 607.
We retain jurisdiction.
M
C
C
ORMACK
, J., did not participate.
P
EOPLE V
E
NGLISH
, No. 145765; Court of Appeals No. 308852. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals for a determination of whether that
court complied with its own practices regarding the filing of certificates
stating that a transcript does not exist and deadlines for applications for
leave to appeal.
We do not retain jurisdiction.
Leave to Appeal Granted January 25, 2013:
K
ENNEY V
B
OOKER
, No. 145116; Court of Appeals No. 304900. On
January 10, 2013, the Court heard oral argument on the application for
leave to appeal the April 3, 2012, judgment of the Court of Appeals. The
application is again considered, and it is granted. The parties shall
address (1) the relationship between common law and statutory habeas
corpus; (2) the standard for establishing a claim for habeas corpus relief,
including whether there is a difference between the standard for provid-
ing relief at common law and by statute, MCL 600.4301 et seq.; (3) the
scope of the limitations on habeas corpus found in MCL 600.4310; (4) the
effect, if any, of the availability of other means of review on claims for
habeas corpus relief generally, and specifically in the context of parole
revocation; (5) the validity and scope of the “radical defect” requirement
in habeas corpus cases, including whether such requirement is limited
solely to defects in subject matter or personal jurisdiction; (6) the
standard of review applicable to habeas corpus claims, including if there
is a difference at common law and by statute; (7) the type(s) of relief that
may be granted to successful habeas corpus claimants; and (8) whether
habeas corpus principles recognize a distinction between executive de-
tention and judicially ordered detention and, if so, the significance of that
distinction.
The Clerk of the Court is directed to place this case on the May 2013
session calendar for argument and submission. Appellant’s brief and
O
RDERS IN
C
ASES
927
appendix must be filed no later than March 12, 2013, and appellee’s brief
and appendix, if appellee chooses to submit an appendix, must be filed no
later than April 12, 2013.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
Leave to Appeal Denied January 25, 2013:
In re D
OUGLAS
E
STATE
, Nos. 145763 and 145764; Court of Appeals Nos.
298330 and 298723.
C
AVANAGH
, J., would grant leave to appeal.
C
APITAL
O
NE
B
ANK V
G
REEN
, No. 144038; Court of Appeals No. 301968.
P
EOPLE V
B
ULEY
, No. 144064; Court of Appeals No. 301790.
P
EOPLE V
S
EMA
’
J
L
AWSON
, No. 144411; Court of Appeals No. 299798.
P
EOPLE V
S
ULLIVAN
, No. 144813; Court of Appeals No. 298601.
H
AMMOUD V
H
AMMOUD
, No. 144986; Court of Appeals No. 302619.
P
EOPLE V
G
OUDLOCK
, No. 145067; Court of Appeals No. 303256.
A
LLOR V
D
E
C
LARK
,I
NC
, No. 145104; Court of Appeals No. 300953.
P
EOPLE V
C
LOUD
, No. 145245; Court of Appeals No. 309016.
P
EOPLE V
J
IMMY
B
ENNETT
, No. 145409; Court of Appeals No. 308356.
P
EOPLE V
D
E
J
ONGE
, No. 145528; Court of Appeals No. 295168.
P
EOPLE V
L
APINE
, No. 145562; Court of Appeals No. 309429.
P
ONTE V
H
AZLETT
, Nos. 145590 and 145591; Court of Appeals Nos.
298193 and 298194.
USB
ANK
N
ATIONAL
A
SSOCIATION V
T
ICOR
T
ITLE
I
NSURANCE
C
OMPANY
, No.
145593; Court of Appeals No. 295735.
O
RCO
I
NVESTMENTS
,I
NC V
C
ITY OF
R
OMULUS
, No. 145624; Court of Appeals
No. 303744.
P
EOPLE V
B
UCK
, No. 145625; Court of Appeals No. 300702.
P
EOPLE V
T
OTH
, No. 145679; Court of Appeals No. 304226.
P
EOPLE V
T
REMAIN
, No. 145694; Court of Appeals No. 309286.
P
EOPLE V
D
ONOVAN
W
ILSON
, No. 145707; Court of Appeals No. 308646.
928 493 M
ICHIGAN
R
EPORTS
In re D
ONALD
EM
ASSEY
R
EVOCABLE
T
RUST
D
ATED
D
ECEMBER
13, 2001, No.
145745; Court of Appeals No. 310619. The motion to seal this Court’s
record is granted. The Court finds that there is good cause to seal the
record, consistent with the May 4, 2011, Wayne County Probate Court’s
order to seal court records, the October 31, 2011, Wayne Circuit Court’s
order to seal court records, and the June 20, 2012, Court of Appeals order
sealing that court’s files. There is no less restrictive means to adequately
and effectively protect the specific interests asserted. See MCR 7.313(A),
(D), and MCR 8.119(F)(1). The application for leave to appeal the July 13,
2012, order of the Court of Appeals is considered, and it is denied.
E
NVISION
B
UILDERS
,I
NC V
C
ITIZENS
I
NSURANCE
C
OMPANY OF
A
MERICA
, Nos.
145767 and 145768; Court of Appeals Nos. 303652 and 303668.
C
AVANAGH
, J., not participating due to a familial relationship with
counsel of record.
P
EOPLE V
S
TILES
, No. 145805; Court of Appeals No. 302206.
H
ORSESHOE
L
AKE
C
ORPORATION V
C
ARLSON
, No. 145832; Court of Appeals
No. 304695.
N
ORTH
P
OINTE
I
NSURANCE
C
OMPANY V
S
IMPSON
, No. 145838; Court of
Appeals No. 304118.
R&MV
ENTURES
,LLCvW
ONSEY
E
STATE
, No. 145844; Court of Appeals
No. 304241.
C
ITY OF
R
IVER
R
OUGE V
C
ITY OF
E
CORSE
, No. 145845; Court of Appeals No.
303920.
P
EOPLE V
J
IMMIE
R
OGERS
, No. 145855; Court of Appeals No. 304892.
C
OATES V
A
LGER
C
ORRECTIONAL
F
ACILITY
W
ARDEN
, No. 145861; Court of
Appeals No. 307096.
P
EOPLE V
T
HORNSBERRY
, No. 145896; Court of Appeals No. 309763.
G
OLDBERG V
W
LEZNIAK
, No. 145898; Court of Appeals No. 301439.
P
EOPLE V
O
RLANDO
, No. 145900; Court of Appeals No. 309517.
P
EOPLE V
V
ELEZ
, No. 145914; Court of Appeals No. 310613.
P
EOPLE V
B
ANCROFT
, No. 145956; Court of Appeals No. 297810.
P
EOPLE V
I
NDIA
T
AYLOR
, No. 145970; Court of Appeals No. 301662.
In re E
LEANOR
VM
IREK
T
RUST
, No. 145973; Court of Appeals No.
303695.
P
EOPLE V
J
ASON
B
ROWN
, No. 145990; Court of Appeals No. 305153.
F
INDLING V
K
LOIAN
, No. 145996; Court of Appeals No. 306849.
P
EOPLE V
W
ILLIAM
N
ELSON
, No. 146008; Court of Appeals No. 310124.
P
EOPLE V
P
ENZIEN
, No. 146027; Court of Appeals No. 311398.
O
RDERS IN
C
ASES
929
P
EOPLE V
K
AREEN
H
ALL
, No. 146031; Court of Appeals No. 305353.
P
EOPLE V
F
RENCH
, No. 146034; Court of Appeals No. 310554.
P
EOPLE V
A
NTHONY
M
C
G
OWAN
, No. 146035; Court of Appeals No. 299386.
P
EOPLE V
J
OIE
B
ELL
, No. 146058; Court of Appeals No. 305103.
K
OKAS V
C
ITIZENS
I
NSURANCE
C
OMPANY OF
A
MERICA
, No. 146061; Court of
Appeals No. 303592.
P
EOPLE V
B
AILEY
, No. 146064; Court of Appeals No. 305987.
P
EOPLE V
D
AVID
R
EESE
, No. 146068; Court of Appeals No. 305356.
P
EOPLE V
M
ATHISON
, No. 146071; Court of Appeals No. 306637.
P
EOPLE V
M
C
M
AHON
, No. 146072; Court of Appeals No. 302037.
P
EOPLE V
T
ABATHA
D
AWSON
, No. 146074; Court of Appeals No. 304573.
P
EOPLE V
G
ENTRY
, No. 146099; Court of Appeals No. 305644.
O
LD
CF, I
NC V
R
EHMANN
G
ROUP
,I
NC
, No. 146105; Court of Appeals No.
307484.
P
EOPLE V
S
ANDBERG
, No. 146107; Court of Appeals No. 310329.
P
EOPLE V
S
ANDBERG
, No. 146109; Court of Appeals No. 310346.
P
EOPLE V
J
OSEPH
L
ONG
, No. 146110; Court of Appeals No. 303430.
P
EOPLE V
C
ARROLL
, No. 146260; Court of Appeals No. 308229.
B
UCHANAN V
W
ALTERS
, No. 146302; Court of Appeals No. 311195.
Superintending Control Denied January 25, 2013:
D
E
V
ANEY V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 146017.
Leave to Appeal Before Decision by the Court of Appeals Denied January
25, 2013:
W
YOMING
C
HIROPRACTIC
H
EALTH
C
LINIC V
A
UTO
-O
WNERS
I
NSURANCE
C
OM-
PANY
, No. 146220; Court of Appeals No. 313176.
Reconsideration Denied January 25, 2013:
W
ALGREEN
C
OMPANY V
RDC E
NTERPRISES
, LLC, No. 144651; Court of
Appeals No. 293608. Leave to appeal denied at 493 Mich 868.
P
EOPLE V
I
SADORE
D
EAN
, No. 143152; Court of Appeals No.
296183. Leave to appeal denied at 493 Mich 881.
930 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
A
NDRE
E
DWARDS
, No. 143502; Court of Appeals No.
294826. Leave to appeal denied at 493 Mich 881.
P
EOPLE V
C
RAIGHEAD
, No. 144415; Court of Appeals No. 301465. Leave
to appeal denied at 493 Mich 867.
C
AVANAGH
, J., would grant reconsideration and, on reconsideration,
would grant leave to appeal.
M
C
C
ORMACK
, J., did not participate because of her prior involvement in
this case as counsel for a party.
P
EOPLE V
S
COTT
J
ONES
, No. 144509; Court of Appeals No.
304553. Leave to appeal denied at 492 Mich 865.
L
UCIO V
G
REAT
L
AKES
C
ASUALTY
I
NSURANCE
C
OMPANY
, No. 144603; Court
of Appeals No. 299786. Leave to appeal denied at 493 Mich 852.
P
EOPLE V
G
RANAAS
, No. 144609; Court of Appeals No. 299576. Leave to
appeal denied at 493 Mich 855.
P
EOPLE V
P
INDER
, No. 144624; Court of Appeals No. 306098. Leave to
appeal denied at 493 Mich 868.
P
EOPLE V
M
ARKS
, No. 144626; Court of Appeals No. 301118. Leave to
appeal denied at 492 Mich 865.
P
EOPLE V
C
URRIE
, No. 144665; Court of Appeals No. 305882. Leave to
appeal denied at 493 Mich 868.
P
EOPLE V
R
AIHALA
, No. 144745; Court of Appeals No. 307407. Leave to
appeal denied at 492 Mich 866.
P
EOPLE V
P
HILLIP
T
OWNSEND
, No. 144761; Court of Appeals No.
303179. Leave to appeal denied at 493 Mich 868.
P
EOPLE V
H
AROLD
R
OGERS
, No. 144820; Court of Appeals No.
306248. Leave to appeal denied at 493 Mich 868.
T
HOM V
P
ALUSHAJ
, No. 144840; Court of Appeals No. 301568. Leave to
appeal denied at 493 Mich 865.
US M
OTORS V
G
ENERAL
M
OTORS
E
UROPE
, No. 145002; Court of Appeals
No. 299901. Leave to appeal denied at 493 Mich 866.
P
EOPLE V
B
ORKOWSKI
, No. 145112; Court of Appeals No. 308489. Leave
to appeal denied at 492 Mich 868.
P
EOPLE V
B
OWERS
, No. 145185; Court of Appeals No. 301811. Leave to
appeal denied at 493 Mich 869.
E
ASTBROOK
H
OMES
,I
NC V
D
EPARTMENT OF
T
REASURY
, No. 145192; Court of
Appeals No. 299612; reported below: 296 Mich App 336. Leave to appeal
denied at 493 Mich 882.
P
EOPLE V
H
AMILTON
, No. 145263; Court of Appeals No. 309304. Leave
to appeal denied at 493 Mich 882.
O
RDERS IN
C
ASES
931
Leave to Appeal Denied January 30, 2013:
P
EOPLE V
N
ICOLE
R
OBERTS
, No. 146555; Court of Appeals No. 313458.
Leave to Appeal Denied February 1, 2013:
G
REENSTEIN V
F
ARMINGTON
P
UBLIC
S
CHOOLS
, No. 146285; Court of Ap-
peals No. 306268.
In re A
DAMS
/C
RIGLER
M
INORS
, No. 146453; Court of Appeals No. 308982.
In re A
DAMS
/C
RIGLER
M
INORS
, No. 146455; Court of Appeals No. 308983.
Application for Leave to Appeal Dismissed on Stipulation February 1,
2013:
C
UMMINGS V
L
EWIS
, No. 145445; Court of Appeals No. 303386.
Summary Disposition February 6, 2013:
D
ESAI V
A
LLYN
, No. 144818; Court of Appeals No. 300330. Pursuant to
MCR 7.302(H)(1), in lieu of granting leave to appeal, we reverse, in part,
the judgment of the Court of Appeals. The Washtenaw Circuit Court’s
sanction award included $342 incurred on April 14, 2010, for services
that were not incurred in connection with the plaintiff’s complaint for
divorce. That amount must be subtracted from the $10,044.25 for which
the appellant and the plaintiff are jointly and severally liable to the
defendant. The sanction award is $9,702.25. In all other respects, leave
to appeal is denied.
U
NITED
S
ERVICES
A
UTOMOBILE
A
SSOCIATION V
R
IMBEY
, No. 145188; Court
of Appeals No. 299307. Pursuant to MCR 7.302(H)(1), in lieu of granting
leave to appeal, we reverse in part the judgment of the Court of Appeals.
The trial court clearly erred in awarding the defendants attorney fees
pursuant to MCL 500.3148(1), because the plaintiff’s initial refusal to pay
benefits under the no-fault act was based on a legitimate question of
factual uncertainty as to whether Rana Reyes suffered “accidental bodily
injury” pursuant to MCL 500.3105(1) and (4). Ross v Auto Club Group,
481 Mich 1, 11 (2008). In all other respects, leave to appeal is denied.
P
EOPLE V
W
ILDING
, No. 145530; Court of Appeals No. 309245. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals for consideration as on leave granted.
P
EOPLE V
J
AMES
N
ELSON
, No. 145536; Court of Appeals No.
306864. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we remand this case to the Oakland Circuit Court for the
appointment of substitute appellate counsel. The record shows that
initially appointed appellate counsel moved to withdraw because of a
breakdown of the attorney-client relationship. The record does not show
932 493 M
ICHIGAN
R
EPORTS
that counsel determined or advised the court that there was no non-
frivolous issue to raise on appeal, and counsel’s motion did not comply
with MCR 7.211(C)(5) or AO 2004-6, Standard 5. Under the circum-
stances of this case, the circuit court erred in granting the motion to
withdraw without appointing substitute appellate counsel. On remand,
newly appointed appellate counsel may file an application for leave to
appeal to the Court of Appeals within 12 months of the date of the circuit
court’s order appointing counsel, as, at the time the defendant was
sentenced, he was entitled to file an application within 12 months of
sentencing. See former MCR 7.205(F)(3).
W
IRELESS
T
OYZ
F
RANCHISE
,LLCvC
LEAR
C
HOICE
C
OMMUNICATION
,I
NC
, No.
145843; Court of Appeals No. 303619. Pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we reverse the judgment of the Court of
Appeals, for the reasons stated in the Court of Appeals dissenting
opinion, and we reinstate the March 29, 2011 order of the Oakland
Circuit Court, denying the defendants’ motion to vacate the arbitration
award and confirming the award.
P
EOPLE V
K
EITH
M
OORE
, No. 145912; Court of Appeals No.
303750. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we vacate the Court of Appeals’ judgment’s resolution of the
claim of ineffective assistance of counsel advanced in the defendant’s
Standard 4 brief, and we remand this case to the Court of Appeals for
reconsideration of that issue. See Haines v Kerner, 404 US 519, 520
(1972). In declining to review the defendant’s ineffective assistance
claims, the Court of Appeals “stress[ed]” that the “defendant made no
effort to expand the record by moving to remand or for a new trial or
evidentiary hearing below, nor [did] he suggest these remedies on
appeal,” yet the defendant’s Standard 4 brief contained two requests for
a remand for an evidentiary hearing pursuant to People v Ginther, 390
Mich 436 (1973), and the defendant attached to his Standard 4 brief his
affidavit, those of the three witnesses whom he contends defense counsel
erred in failing to interview or call, and the allegedly deficient warrant
affidavit that defense counsel failed to challenge. See People v Hawkins,
468 Mich 488, 498-499 (2003). In all other respects, leave to appeal is
denied. The motion to remand to the trial court is denied.
We do not retain jurisdiction.
P
EOPLE V
J
IMMIE
N
ELSON
, No. 146024; Court of Appeals No.
301253. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we reverse the judgment of the Court of Appeals and remand this
case to the Court of Appeals for consideration of the defendant’s
remaining issues. Even absent concrete proof of a particular act causing
death, the circumstantial evidence was legally sufficient, when viewed in
the light most favorable to the prosecution, to prove beyond a reasonable
doubt that the defendant caused the victim’s death with malice. In all
other respects, leave to appeal is denied.
H
AGERTY V
B
OARD OF
M
ANISTEE
C
OUNTY
R
OAD
C
OMMISSIONERS
, Nos. 146047
and 146048; Court of Appeals No. 304369 and 304439. Pursuant to MCR
7.302(H)(1), in lieu of granting leave to appeal, we reverse that portion of
O
RDERS IN
C
ASES
933
the Court of Appeals’ judgment that held that the defendant is not
entitled to the protection of governmental immunity, and we vacate the
remainder of the Court’s analysis because it is unnecessary to the
disposition of the case. The plaintiff’s decedent was fatally injured when
the vehicle she was driving left an unpaved road in Manistee County and
hit a tree. The plaintiff alleged that this accident occurred when an
oncoming motorist caused a cloud of dust to rise from the roadway,
causing the decedent to lose her orientation, drive into soft sand on the
edge of the road, and veer off the roadway. This theory of causation failed
to point to a condition of the highway in need of repair. A dust cloud rising
from an unpaved road is not a defect in the physical structure of the
roadbed, as required for liability to arise under the governmental tort
liability act highway exception, MCL 691.1402(1). Nawrocki v Macomb
Co Rd Comm, 463 Mich 143, 176-177 (2000). Moreover, a plaintiff cannot
recover in a claim where the sole proximate cause of the injury is a
natural substance that has accumulated over a highway. See Haliw v
Sterling Hts, 464 Mich 297, 311 (2001). An accumulation of gravel,
whether natural or otherwise, does not implicate the defendant’s duty to
maintain the highway in “reasonable repair.” Paletta v Oakland Co Rd
Comm, 491 Mich 897 (2012); Buckner Estate v City of Lansing, 480 Mich
1243 (2008). We remand this case to the Manistee Circuit Court for entry
of an order granting summary disposition to the defendant pursuant to
MCR 2.116(C)(7).
P
EOPLE V
G
EIERMAN
, No. 146238; Court of Appeals No. 305107. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we reverse, in
part, the judgment of the Court of Appeals and reinstate the defendant’s
conviction for felonious assault because the evidence was sufficient to
sustain his conviction for that offense. The defendant broke into a home,
threatened to strike the occupants with what appeared to be a small bat
or club, and thus attempted “to commit a battery or [committed] an
unlawful act that place[d] another in reasonable apprehension of receiv-
ing an immediate battery.” People v Nickens, 470 Mich 622, 628 (2004)
(quotation marks and citations omitted). The Court of Appeals is re-
quired to view the evidence in a light most favorable to the prosecution.
It was not empowered to substitute its judgment for that of the circuit
court. People v Wolfe, 440 Mich 508, 515-516 (1992).
Leave to Appeal Granted February 6, 2013:
H
ENRY V
L
ABORERS
L
OCAL
1191 and R
AMSEY V
L
ABORERS
L
OCAL
1191, Nos.
145631 and 145632; Court of Appeals Nos. 302373 and 302710. The
parties shall include among the issues to be briefed (1) whether, regard-
less of the public body involved, the National Labor Relations Act
(NLRA), 29 USC 151 et seq., or the Labor Management Reporting and
Disclosure Act (LMRDA), 29 USC 401 et seq., preempt Michigan’s
Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., if the chal-
lenged conduct actually or arguably falls within the jurisdiction of the
NLRA or the LMRDA; (2) whether a union employee’s report to a public
body of suspected illegal activity or participation in an investigation
934 493 M
ICHIGAN
R
EPORTS
thereof is of only peripheral concern to the NLRA or the LMRDA so that
the employee’s claims under the WPA are not preempted by federal law;
and (3) whether the state’s interest in enforcing the WPA is so deeply
rooted that, in the absence of compelling congressional direction, courts
cannot infer that Congress has deprived the state of the power to act.
The Attorney General and the Labor and Employment Law Section of
the State Bar of Michigan are invited to file briefs amicus curiae. Other
persons or groups interested in the determination of the issues presented
in this case may move the Court for permission to file briefs amicus
curiae.
Leave to Appeal Denied February 6, 2013:
E
RIE
I
NSURANCE
E
XCHANGE V
L
AKE
C
ITY
I
NDUSTRIAL
P
RODUCTS
,I
NC
, No.
145774; Court of Appeals No. 302889.
P
EOPLE V
M
ORRIS
, No. 145828; Court of Appeals No. 307496.
C
AVANAGH
, J., would grant leave to appeal.
H
OLMES V
ET4, I
NC
, No. 145831; Court of Appeals No. 303954.
Order Entered February 6, 2013:
P
EOPLE V
A
RTHUR
, No. 145702; Court of Appeals No. 301762. Pursuant
to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand this
case to the Saginaw Circuit Court for an evidentiary hearing regarding
the decision to keep the defendant in shackles during the trial. We order
the trial court to articulate with particularity, on the record, its reasons
for requiring the defendant to wear shackles at his jury trial. The court
shall receive evidence and make findings of fact regarding (1) whether
the physical restraints were justified under Deck v Missouri, 544 US 622;
125 S Ct 2007; 161 L Ed 2d 953 (2005), and (2) whether those restraints
were visible to any jurors, either during jury selection or afterward. We
direct the trial court to commence the hearing within 35 days of the date
of this order. We further order that court to submit a transcript of the
hearing, along with its findings of fact and conclusions of law, to the Clerk
of this Court within 28 days of the conclusion of the hearing.
We retain jurisdiction.
Interim Suspension Order Entered February 8, 2013:
In re M
C
C
REE
, No. 146461. On order of the Court, the motions for
immediate consideration are granted. The petition for interim suspen-
sion is considered, and it is granted. The respondent, Wayne Circuit
Judge Wade H. McCree, is suspended without pay, effective immediately,
until further order of this Court. The respondent’s salary will be held in
escrow pending the final resolution of these disciplinary proceedings. The
motion to seal the Supreme Court file is also considered, and it is granted,
in order to preserve the confidentiality required by MCR 9.219(A)(2) and
O
RDERS IN
C
ASES
935
MCR 9.221(A). With the exception of this order, the Supreme Court file is
suppressed and shall remain confidential until further order of this
Court.
Leave to Appeal Granted February 8, 2013:
In re F
ORFEITURE OF
B
AIL
B
OND
(P
EOPLE V
G
ASTON
), No. 146033; Court of
Appeals No. 305004. The parties shall address (1) whether a court’s
failure to comply with the 7-day notice provision of MCL 765.28 bars
forfeiture of a bail bond posted by a surety and (2) whether In re
Forfeiture of Bail Bond (People v Moore), 276 Mich App 482 (2007),
holding that the 7-day notice provision is directory rather than manda-
tory, was correctly decided.
Persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
Leave to Appeal Denied February 8, 2013:
V
ITTIGLIO V
V
ITTIGLIO
, Nos. 145825 and 145826; reported below: 297
Mich App 391.
M
ARKMAN
,J.(concurring). Although I concur in the order, I write
separately because I believe the Court of Appeals reached the right result
for the wrong reasons in its published opinion. In particular, I believe the
Court of Appeals incorrectly concluded that settlements regarding mari-
tal property distributions constitute “domestic relations cases” for pur-
poses of MCR 3.216, because only cases “as to child custody, parenting
time, child support, or spousal support,” as set forth in MCL 552.502(m),
constitute “domestic relations cases” for purposes of this rule. Moreover,
the Court of Appeals incorrectly concluded in the alternative that the
settlement was exempt from the statute of frauds, MCL 566.106 and
MCL 566.108, because the settlement occurred “by act or operation of
law.” However, the settlement did not occur by “act” because neither
MCR 3.216 nor any act of the Legislature allows such a settlement, and
it did not occur by “operation of law” because this Court has long
understood “operation of law” to indicate “the manner in which a party
acquires rights without any act of his own.” Merdzinski v Modderman,
263 Mich 173, 175 (1933) (citation and quotation marks omitted).
Plaintiff clearly acted in an affirmative and voluntary manner in reach-
ing a settlement with defendant. Notwithstanding what I believe are the
foregoing defects in the Court of Appeals’ analysis, it is ultimately correct
that plaintiff is bound by the settlement for three reasons: (1) plaintiff
waived any objection to the mediation by expressly agreeing to the
mediation through her counsel’s signature on the January 11, 2011,
order requiring the parties to go to mediation and then failing to timely
object to the mediation under MCR 3.216(D); (2) plaintiff affirmed to the
mediator that his recorded summary of the parties’ agreement was
accurate, and she agreed to the recited terms as a full and final binding
settlement of the case; and (3) defendant gave plaintiff a check for $1.2
936 493 M
ICHIGAN
R
EPORTS
million in reliance on the settlement agreement, which was sufficient
partial performance to take the oral settlement out of the statute of
frauds and render it enforceable. See Giordano v Markovitz, 209 Mich
App 676, 679 (1995).
P
EOPLE V
C
ROWELL
, No. 145967; Court of Appeals No. 305466.
B
ARRY
C
OUNTY
T
REASURER V
K
LINGE
, No. 146607; Court of Appeals No.
308783.
Summary Disposition March 4, 2013:
M
URRAY V
ITC H
OLDINGS
C
ORP
, No. 145795; Court of Appeals No.
310776. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration as
on leave granted.
V
IVIANO
, J., did not participate.
H
ODGE V
S
TATE
F
ARM
M
UTUAL
A
UTOMOBILE
I
NSURANCE
C
OMPANY
, No.
146118; Court of Appeals No. 308723. Pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we remand this case to the Court of
Appeals for consideration as on leave granted. We note that a similar
issue is presented in the case of Moody v Getwell Med Transp, 491 Mich
923 (2012), which we remanded to the Court of Appeals for consideration
as on leave granted by order dated May 23, 2012.
V
IVIANO
, J., did not participate.
P
EOPLE V
H
ERSHEY
, No. 146125; Court of Appeals No. 309183. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals, for consideration, as on leave granted,
of whether offense variable (OV) 16 (property obtained, damaged, lost, or
destroyed) and OV 19 (interference with the administration of justice)
were correctly scored and whether the defendant, by failing to object to
the scoring of these offense variables at sentencing, forfeited or waived
any scoring errors.
V
IVIANO
, J., did not participate.
Leave to Appeal Denied March 4, 2013:
P
EOPLE V
K
ELLY
, No. 144361; Court of Appeals No. 301023.
V
IVIANO
, J., did not participate.
DAN J
OINT
V
ENTURE
III, LP v H
OFMEISTER
, No. 144756; Court of
Appeals No. 300777.
V
IVIANO
, J., did not participate.
J
ACOB V
B
ALD
M
OUNTAIN
W
EST
, No. 144886; Court of Appeals No.
304487.
V
IVIANO
, J., did not participate.
P
EOPLE V
C
ORNWELL
, No. 145360; Court of Appeals No. 301660.
V
IVIANO
, J., did not participate.
O
RDERS IN
C
ASES
937
P
EOPLE V
H
OLT
, No. 145425; Court of Appeals No. 302381.
V
IVIANO
, J., did not participate.
P
EOPLE V
J
EREMY
J
OHNSON
, No. 145482; Court of Appeals No. 308417.
V
IVIANO
, J., did not participate.
R
EAD
L
UMBER
&H
ARDWARE
I
NC V
L
AMKIN
, No. 145682; Court of Appeals
No. 303597.
V
IVIANO
, J., did not participate.
C
ITY OF
B
LOOMFIELD
H
ILLS V
F
ROLING
, No. 145727; Court of Appeals No.
299721.
V
IVIANO
, J., did not participate.
P
EOPLE V
G
EORGE
, No. 145790; Court of Appeals No. 304299.
V
IVIANO
, J., did not participate.
P
EOPLE V
L
OGAN
, No. 145818; Court of Appeals No. 303269.
V
IVIANO
, J., did not participate.
35160 J
EFFERSON
A
VENUE
,LLCvH
ARRISON
C
HARTER
T
OWNSHIP
, No.
145879; Court of Appeals No. 303152.
V
IVIANO
, J., did not participate.
P
EOPLE V
S
TALLWORTH
, No. 145883; Court of Appeals No. 311109.
V
IVIANO
, J., did not participate.
P
EOPLE V
S
NERLING
, No. 145884; Court of Appeals No. 311300.
V
IVIANO
, J., did not participate.
B
ONNER V
B
ALLY
T
OTAL
F
ITNESS OF THE
M
IDWEST
,I
NC
, No. 145893; Court
of Appeals No. 302782.
V
IVIANO
, J., did not participate.
P
EOPLE V
B
URIEL
, No. 145894; Court of Appeals No. 304873.
V
IVIANO
, J., did not participate.
G
ONZALES V
G
ONZALES
, No. 145899; Court of Appeals No. 306838.
V
IVIANO
, J., did not participate.
S
AAD V
A
URORA
L
OAN
S
ERVICES
, LLC, No. 145901; Court of Appeals No.
304813.
V
IVIANO
, J., did not participate.
P
EOPLE V
R
AYMOND
K
ING
, No. 145902; reported below: 297 Mich App
465.
C
AVANAGH
, J., would grant leave to appeal.
V
IVIANO
, J., did not participate.
BP P
RODUCTS
N
ORTH
A
MERICA
I
NC V
D
EPARTMENT OF
E
NVIRONMENTAL
Q
UALITY
, No. 145910; Court of Appeals No. 295279.
V
IVIANO
, J., did not participate.
P
EOPLE V
B
RIDGEFORTH
, No. 145915; Court of Appeals No. 304274.
V
IVIANO
, J., did not participate.
938 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
C
ARDENAS
-B
ORBON
, No. 145927; Court of Appeals No. 307598.
V
IVIANO
, J., did not participate.
P
EOPLE V
R
YAN
B
ROWN
, No. 145933; Court of Appeals No. 307687.
V
IVIANO
, J., did not participate.
D
YKES V
S
INGH
, No. 145938; Court of Appeals No. 299346.
V
IVIANO
, J., did not participate.
P
EOPLE V
W
ILLIAM
S
PENCER
, No. 145945; Court of Appeals No. 308103.
V
IVIANO
, J., did not participate.
P
EOPLE V
M
ORNINGSTAR
, No. 145950; Court of Appeals No. 310540.
V
IVIANO
, J., did not participate.
P
EOPLE V
N
ETTLES
, No. 145951; Court of Appeals No. 310787.
V
IVIANO
, J., did not participate.
P
EOPLE V
K
EVIN
H
ILL
, No. 145952; Court of Appeals No. 307621.
V
IVIANO
, J., did not participate.
B
ROWN V
S
UMMERFIELD
T
OWNSHIP
, No. 145955; Court of Appeals No.
304979.
V
IVIANO
, J., did not participate.
B
RONSON
M
ETHODIST
H
OSPITAL V
M
ICHIGAN
A
SSIGNED
C
LAIMS
P
LAN
and
B
RONSON
M
ETHODIST
H
OSPITAL V
P
ROGRESSIVE
M
ICHIGAN
I
NSURANCE
C
OMPANY
,
Nos. 145999 and 146000; reported below: 298 Mich App 192.
V
IVIANO
, J., did not participate.
P
EOPLE V
M
C
C
LURE
, No. 146006; Court of Appeals No. 308386.
V
IVIANO
, J., did not participate.
P
EOPLE V
B
OPP
, No. 146021; Court of Appeals No. 308360.
V
IVIANO
, J., did not participate.
P
EOPLE V
A
LLINGHAM
C
ORPORATION
, No. 146045; Court of Appeals No.
306120.
V
IVIANO
, J., did not participate.
G
REENVILLE
M
ANUFACTURING
,LLCvN
EXT
E
NERGY
C
ENTER
, No. 146049;
Court of Appeals No. 304229.
V
IVIANO
, J., did not participate.
P
EOPLE V
W
ILLFORD
, No. 146052; Court of Appeals No. 311809.
V
IVIANO
, J., did not participate.
P
EOPLE V
C
HRISTOPHER
A
LLEN
, No. 146053; Court of Appeals No.
311526.
V
IVIANO
, J., did not participate.
P
EOPLE V
F
RYER
, No. 146055; Court of Appeals No. 302152.
V
IVIANO
, J., did not participate.
O
RDERS IN
C
ASES
939
H
ERRON
-B
URGESS V
C
OCA
C
OLA
C
OMPANY
, No. 146056; Court of Appeals
No. 308735.
V
IVIANO
, J., did not participate.
P
EOPLE V
S
TEVE
B
OGARD
, No. 146057; Court of Appeals No. 310087.
V
IVIANO
, J., did not participate.
U
NIT
67, LLC v H
UDSON
, No. 146060; Court of Appeals No. 312359.
V
IVIANO
, J., did not participate.
P
EOPLE V
M
ORRISSEY
, No. 146067; Court of Appeals No. 306901.
V
IVIANO
, J., did not participate.
P
EOPLE V
K
ELLY
, No. 146077; Court of Appeals No. 309008.
V
IVIANO
, J., did not participate.
P
EOPLE V
P
ATTERSON
, No. 146084; Court of Appeals No. 305821.
V
IVIANO
, J., did not participate.
L
A
S
ALLE
B
ANK
M
IDWEST
,NAvA
BERNATHY
, No. 146086; Court of Appeals
No. 304111.
V
IVIANO
, J., did not participate.
P
EOPLE V
F
URMAN
, Nos. 146092, 146093, 146094, and 146095; Court of
Appeals Nos. 305536, 305538, 305541, and 305543.
V
IVIANO
, J., did not participate.
P
EOPLE V
G
ERENCER
, No. 146101; Court of Appeals No. 310189.
V
IVIANO
, J., did not participate.
M
ERLO
C
ONSTRUCTION
C
OMPANY
,I
NC V
C
ITIZENS
I
NSURANCE
C
OMPANY OF
A
MERICA
, No. 146108; Court of Appeals No. 304184.
V
IVIANO
, J., did not participate.
F
EDERAL
N
ATIONAL
M
ORTGAGE
A
SSOCIATION V
M
APLE
P
OINTE
C
ONDOMINIUM
A
SSOCIATION
, No. 146114; Court of Appeals No. 307910.
V
IVIANO
, J., did not participate.
P
EOPLE V
D
ICKERSON
, No. 146121; Court of Appeals No. 304609.
V
IVIANO
, J., did not participate.
P
EOPLE V
L
YNCH
, No. 146122; Court of Appeals No. 311334.
V
IVIANO
, J., did not participate.
P
EOPLE V
A
RNETT
, No. 146123; Court of Appeals No. 30553.
V
IVIANO
, J., did not participate.
P
EOPLE V
M
C
K
INNEY
, No. 146127; Court of Appeals No. 305093.
V
IVIANO
, J., did not participate.
T
RUSS V
O
AKS
C
ORRECTIONAL
F
ACILITY
W
ARDEN
, No. 146130; Court of
Appeals No. 310468.
V
IVIANO
, J., did not participate.
940 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
D
ANIEL
C
OLEMAN
, No. 146137; Court of Appeals No. 305480.
V
IVIANO
, J., did not participate.
R
ADFORD V
H
URLEY
H
EALTH
S
ERVICES
, No. 146138; Court of Appeals No.
304725.
V
IVIANO
, J., did not participate.
P
EOPLE V
E
ISON
, No. 146147; Court of Appeals No. 306109.
V
IVIANO
, J., did not participate.
P
EOPLE V
R
ANDALL
, No. 146148; Court of Appeals No. 304042.
V
IVIANO
, J., did not participate.
P
EOPLE V
D
OUGLAS
B
URNS
, No. 146149; Court of Appeals No. 305037.
V
IVIANO
, J., did not participate.
P
EOPLE V
R
AYMOND
H
ARRIS
, No. 146150; Court of Appeals No. 303745.
V
IVIANO
, J., did not participate.
P
EOPLE V
J
ANUARY
, No. 146152; Court of Appeals No. 306148.
V
IVIANO
, J., did not participate.
P
EOPLE V
F
RITZ
, No. 146154; Court of Appeals No. 301411.
V
IVIANO
, J., did not participate.
T
ORRES V
F
ERROUS
P
ROCESSING
&T
RADING
C
OMPANY
, No. 146155; Court of
Appeals No. 308550.
V
IVIANO
, J., did not participate.
P
EOPLE V
K
ENNETH
L
ONG
, No. 146158; Court of Appeals No. 305053.
V
IVIANO
, J., did not participate.
P
EOPLE V
E
RNEST
T
HOMPSON
, No. 146160; Court of Appeals No. 311819.
V
IVIANO
, J., did not participate.
W
ALKER V
G
EICO
G
ENERAL
I
NSURANCE
C
OMPANY
, No. 146164; Court of
Appeals No. 308829.
V
IVIANO
, J., did not participate.
G
RAHAM V
F
IRST OF
A
MERICA
B
ANK
, No. 146175; Court of Appeals No.
308623.
V
IVIANO
, J., did not participate.
P
EOPLE V
R
ICHARD
J
OHNSON
, No. 146176; Court of Appeals No. 307460.
V
IVIANO
, J., did not participate.
P
EOPLE V
W
ILBERT
, No. 146177; Court of Appeals No. 311645.
V
IVIANO
, J., did not participate.
P
EOPLE V
R
ONALD
G
ARDNER
, No. 146188; Court of Appeals No. 305270.
V
IVIANO
, J., did not participate.
P
EOPLE V
T
ILLMAN
, No. 146189; Court of Appeals No. 305354.
V
IVIANO
, J., did not participate.
O
RDERS IN
C
ASES
941
P
EOPLE V
T
URPEN
, No. 146193; Court of Appeals No. 305386.
V
IVIANO
, J., did not participate.
P
EOPLE V
M
ELVIN
T
AYLOR
, No. 146194; Court of Appeals No. 312146.
V
IVIANO
, J., did not participate.
P
EOPLE V
S
WORD
, No. 146197; Court of Appeals No. 301169.
V
IVIANO
, J., did not participate.
P
EOPLE V
N
ICHOLSON
, No. 146222; Court of Appeals No. 304784.
V
IVIANO
, J., did not participate.
P
EOPLE V
D
AVID
C
HAPMAN
, No. 146225; Court of Appeals No. 305465.
V
IVIANO
, J., did not participate.
A
BERDEEN OF
B
RIGHTON
,LLCvC
ITY OF
B
RIGHTON
, No. 146473; Court of
Appeals No. 301826.
V
IVIANO
, J., did not participate.
Application for Leave to Appeal Dismissed March 4, 2013:
S
MITH V
E
ATON
C
ORPORATION
T
ORQUE
C
ONTROLS
, No. 146153; Court of
Appeals No. 308484. On order of the Court, the application for leave to
appeal the October 1, 2012, order of the Court of Appeals is considered,
and it is dismissed. The decision of the Michigan Compensation Appellate
Commission (MCAC) that the defendants seek to appeal is not a final
order because it did not dispose of “all the claims” of the parties. MCR
7.202(6)(a)(1). This Court has jurisdiction only to consider appeals from
final decisions or final orders of the MCAC. MCL 418.861a(14); Lucas v
Ford Motor Co, 299 Mich 280 (1941).
V
IVIANO
, J., did not participate.
Superintending Control Denied March 4, 2013:
B
OTIMER V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 143254.
V
IVIANO
, J., did not participate.
Leave to Appeal Before Decision by the Court of Appeals Denied March 4,
2013:
V
ROOMAN V
F
ORD
M
OTOR
C
OMPANY
, No. 146368; Court of Appeals No.
313437.
V
IVIANO
, J., did not participate.
Reconsideration Denied March 4, 2013:
C
ONVERSE V
A
UTO
C
LUB
G
ROUP
I
NSURANCE
C
OMPANY
, No. 142917; Court of
Appeals No. 293303. Summary disposition at 493 Mich 877.
V
IVIANO
, J., did not participate.
942 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
R
OBERT
M
OORE
, No. 144791; Court of Appeals No.
300281. Leave to appeal denied at 492 Mich 866. On order of the Court,
the motion for reconsideration of this Court’s September 4, 2012, order is
considered. We modify the first sentence of the order to read: “On order
of the Court, the motion to stay consideration of the application is denied
as moot because the defendant has filed his supplemental brief and the
requested stay is no longer necessary.” The motion for reconsideration is
denied, because it does not appear that the Court’s order denying leave to
appeal entered erroneously.
V
IVIANO
, J., did not participate.
P
EOPLE V
S
ANFORD
, No. 145031; Court of Appeals No. 300852. Leave to
appeal denied at 492 Mich 867.
V
IVIANO
, J., did not participate.
V
AN
S
LEMBROUCK V
H
ALPERIN
, No. 145153; Court of Appeals No.
309680. Leave to appeal before decision by the Court of Appeals denied
at 493 Mich 902.
V
IVIANO
, J., did not participate.
C
OX V
H
URON
-C
LINTON
M
ETROPOLITAN
A
UTHORITY
, No. 145325; Court of
Appeals No. 303158. Leave to appeal denied at 492 Mich 870.
C
AVANAGH
, J., would grant consideration and, on reconsideration,
would grant leave to appeal.
V
IVIANO
, J., did not participate.
P
EOPLE V
W
ILCHER
, No. 145357; Court of Appeals No. 301487. Leave to
appeal denied at 493 Mich 870.
V
IVIANO
, J., did not participate.
P
EOPLE V
D
EVON
B
ELL
, No. 145402; Court of Appeals No.
295573. Leave to appeal denied at 493 Mich 870.
V
IVIANO
, J., did not participate.
P
EOPLE V
W
ARD
, No. 145413; Court of Appeals No. 309823. Leave to
appeal denied at 493 Mich 891.
V
IVIANO
, J., did not participate.
P
EOPLE V
W
ILLIE
W
RIGHT
, No. 145441; Court of Appeals No.
302146. Leave to appeal denied at 493 Mich 870.
V
IVIANO
, J., did not participate.
P
EOPLE V
B
RANTLEY
, No. 145456; reported below: 296 Mich App
546. Leave to appeal denied at 493 Mich 877.
V
IVIANO
, J., did not participate.
P
EOPLE V
C
RUMP
, No. 145486; Court of Appeals No. 309364. Leave to
appeal denied at 493 Mich 892.
V
IVIANO
, J., did not participate.
B
ALLARD V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 145487. Superintend-
ing control denied at 493 Mich 872.
V
IVIANO
, J., did not participate.
O
RDERS IN
C
ASES
943
D
ANIEL V
P
UBLIC
S
TORAGE
I
NCORPORATED
, No. 145495; Court of Appeals
No. 301563. Leave to appeal denied at 493 Mich 871.
V
IVIANO
, J., did not participate.
L
A
S
ALLE
B
ANK
N
ATIONAL
A
SSOCIATION V
M
URRAY
, No. 145541; Court of
Appeals No. 305218. Leave to appeal denied at 493 Mich 871.
V
IVIANO
, J., did not participate.
P
EOPLE V
BJT
HOMAS
, No. 145656; Court of Appeals No. 309193. Leave
to appeal denied at 493 Mich 895.
V
IVIANO
, J., did not participate.
P
EOPLE V
G
IDDIS
, No. 145775; Court of Appeals No. 310730. Leave to
appeal denied at 493 Mich 896.
V
IVIANO
, J., did not participate.
P
EOPLE V
F
RANKLIN
, No. 145791; Court of Appeals No. 309424. Leave
to appeal denied at 493 Mich 897.
V
IVIANO
, J., did not participate.
Leave to Appeal Denied March 6, 2013:
R
ASZKOWSKI V
C
ONSUMERS
E
NERGY
C
OMPANY
, No. 146698; Court of Ap-
peals No. 312768.
V
IVIANO
, J., did not participate.
Leave to Appeal Denied March 8, 2013:
M
ICHIGAN
F
ILM
C
OALITION V
S
TATE OF
M
ICHIGAN
, No. 145937; Court of
Appeals No. 304000.
M
ARKMAN
, J., concurred with the opinion of the dissenting judge in the
Court of Appeals that plaintiff lacks standing. Mich Film Coalition v
Michigan, unpublished opinion per curiam of the Court of Appeals,
issued August 12, 2012 (Docket No. 304000) (J
ANSEN
,J., dissenting).
V
IVIANO
, J., did not participate.
P
EOPLE V
F
RANCIS
P
ARKS
, No. 146140; Court of Appeals No. 311749.
M
ARKMAN
,J.(concurring). I concur in the Court’s order denying
defendant’s application for leave to appeal. I write separately, however, to
reiterate the concerns I expressed in People v Touchstone, 483 Mich 947,
948-949 (2009) (M
ARKMAN
, J., dissenting), regarding the imposition of
supervision fees. MCL 771.3c(1) clearly provides that in “determining the
amount of the fee, the court shall consider the probationer’s projected
income and financial resources.” The table contained in MCL 771.3c(1)
then proceeds to instruct that if a probationer’s projected monthly
income is less than $250, the amount of such fee “shall” be zero dollars.
There was evidence here that defendant had no income, and if that
evidence was accurate, no fee should have been imposed. Yet, absent any
explanation, the trial court assessed defendant a $75 monthly fee.
Accordingly, I believe the trial court erred. However, defendant did not
object at sentencing or raise this issue in any postsentencing motion, and
944 493 M
ICHIGAN
R
EPORTS
thus the issue is unpreserved. For that reason alone, I concur in the
Court’s order denying defendant’s application for leave to appeal.
M
C
C
ORMACK
, J., joined the statement of M
ARKMAN
,J.
V
IVIANO
, J., did not participate.
H
ASLIP V
B
OTSFORD
C
ONTINUING
C
ARE
C
ORPORATION
, No. 146622; Court of
Appeals No. 313729.
V
IVIANO
, J., did not participate.
In re N
ABERS
/R
EED
M
INORS
, No. 146644; Court of Appeals No. 308818.
V
IVIANO
, J., did not participate.
Reconsideration Denied March 8, 2013:
In re G
OLDIE
, No. 146096; Court of Appeals No. 307218. Leave to
appeal before decision of the Court of Appeals denied at 493 Mich 902.
V
IVIANO
, J., did not participate.
Leave to Appeal Denied March 15, 2013:
In re M
AYS
, No. 146410; Court of Appeals No. 309577.
Summary Disposition March 20, 2013:
R
OBBINS V
V
ILLAGE
C
REST
C
ONDOMINIUM
A
SSOCIATION
, No. 144806; Court
of Appeals No. 300842. Pursuant to MCR 7.302(H)(1), in lieu of granting
leave to appeal, we vacate the judgment of the Court of Appeals and we
remand this case to the Court of Appeals for reconsideration in light of
Hoffner v Lanctoe, 492 Mich 450 (2012).
L
EE V
F
ARMERS
I
NSURANCE
E
XCHANGE
, No. 145972; Court of Appeals No.
303217. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration of
the issue whether the trial court clearly erred in awarding the plaintiff
attorney fees pursuant to MCL 500.3148(1). In all other respects, leave to
appeal is denied.
Leave to Appeal Granted March 20, 2013:
P
EOPLE V
E
ARL
, No. 145677; reported below: 297 Mich App 104. The
application for leave to appeal the June 19, 2012, judgment of the Court
of Appeals is considered, and it is granted, limited to the issue whether
the imposition of the increased Crime Victim’s Rights Fund fee violated
the defendant’s rights under the Ex Post Facto Clauses, US Const, art I,
§ 10, and Const 1963, art 1, § 10.
The Attorney General, Prosecuting Attorneys Association of Michi-
gan, and Criminal Defense Attorneys of Michigan are invited to file briefs
O
RDERS IN
C
ASES
945
amicus curiae. Other persons or groups interested in the determination
of the issue presented in this case may move the Court for permission to
file briefs amicus curiae.
Leave to Appeal Denied March 20, 2013:
P
EOPLE V
C
ARY
, No. 144951; Court of Appeals No. 307674.
C
AMP
R
ETREATS
F
OUNDATION
,I
NC V
M
ARATHON
T
OWNSHIP
, No. 145363;
Court of Appeals No. 304179.
A
TTORNEY
G
ENERAL V
P
UBLIC
S
ERVICE
C
OMMISSION
, Nos. 145717 and
145718; reported below: 297 Mich App 332.
P
EOPLE V
A
NTHONY
S
PRINGER
, No. 146080; Court of Appeals No. 298386.
P
EOPLE V
M
ARSHA
S
PRINGER
, No. 146115; Court of Appeals No. 298385.
Summary Disposition March 22, 2013:
In re P
AROLE OF
H
OWARD
, No. 145094; Court of Appeals No.
306804. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we vacate the November 2, 2010, order of the Monroe Circuit
Court, which reversed the Michigan Parole Board’s grant of parole, and
we remand this case to the Monroe Circuit Court for reconsideration of
the parole-decision challenge under the standard set forth in In re Parole
of Elias, 294 Mich App 507 (2011). The motion to appoint counsel is
denied.
Leave to Appeal Denied March 22, 2013:
S
INTA V
M
C
D
ONALD
, No. 146490; Court of Appeals No. 313868.
C
HAKKOUR V
C
HAKKOUR
, Nos. 146627 and 146628; Court of Appeals Nos.
309854 and 310006.
Summary Disposition March 27, 2013:
T
RACKHTENBERG V
M
C
K
ELVY
, No. 140150; Court of Appeals No.
285247. By order of April 27, 2010, the application for leave to appeal the
October 27, 2009, judgment of the Court of Appeals was held in abeyance
pending the decision in People v Trakhtenberg (Docket Nos. 138875, after
remand 143386). On order of the Court, the case having been decided on
December 21, 2012, 493 Mich 38 (2012), the application is again consid-
ered. In People v Trakhtenberg, this Court held that Trakhtenberg was
deprived of his right to the effective assistance of counsel. Given this,
pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we
reverse the Oakland Circuit Court’s ruling that the defendant was
entitled to summary disposition of the plaintiff’s legal malpractice claim
on a collateral estoppel theory. We further vacate the judgment of the
946 493 M
ICHIGAN
R
EPORTS
Court of Appeals and we remand this case to the Court of Appeals for
reconsideration in light of our decision in People v Trakhtenberg.
We do not retain jurisdiction.
S
MITH V
D
EPARTMENT OF
H
UMAN
S
ERVICES
D
IRECTOR
, Nos. 145612, 145613,
145622, and 145623; Court of Appeals Nos. 309447, 309894, 309447, and
309894. By order of January 25, 2013, the parties were directed to file
supplemental briefs. In lieu of supplemental briefs, the parties have filed
a joint motion to vacate the Court of Appeals decision and dismiss the
applications for leave to appeal. On order of the Court, the motion is
granted in part, and the applications for leave to appeal are dismissed
with prejudice and without costs, and the Court of Appeals opinion at 297
Mich App 148 (2012) is vacated as moot.
M
C
C
ORMACK
, J., did not participate.
V
IVIANO
, J., did not participate.
S
CHARNITZKE V
C
OCA
-C
OLA
E
NTERPRISES
, No. 146171; Court of Appeals
No. 304515. Pursuant to MCR 7.302(H)(1), in lieu of granting the
application for leave to appeal, we reverse that portion of the Court of
Appeals judgment reversing the Worker’s Compensation Appellate Com-
mission’s (WCAC’s) dismissal of the plaintiff’s cross-appeal as an abuse of
discretion. It is undisputed that the plaintiff failed to timely file a
cross-appeal on the forms mandated by the WCAC. Under R 418.4(3), no
delayed cross-appeal is permitted. As a result, it was not an abuse of
discretion for the WCAC to strictly enforce its rule. Marshall v Jacobetti,
447 Mich 544 (1994). The application for leave to appeal as cross-
appellant is denied, because we are not persuaded that the questions
presented should be reviewed by this Court.
In re A
PPLICATION OF
I
NTERNATIONAL
T
RANSMISSION
C
OMPANY FOR
E
XPEDITED
S
ITING
C
ERTIFICATE
, Nos. 146383, 146384, 146386, and 147387; reported
below: 298 Mich App 338. Pursuant to MCR 7.302(H)(1), in lieu of
granting leave to appeal, we reverse, in part, the judgment of the Court
of Appeals. The Michigan Public Service Commission correctly deter-
mined that issuance of an expedited siting certificate under 2008 PA 295
carries with it authorization to construct the transmission line that is the
subject of the certificate. The Court of Appeals clearly erred in determin-
ing that Const 1963, art 4, § 25 would be violated if 2008 PA 295
authorizes such construction because 2008 PA 295 was enacted without
re-enacting and publishing 1995 PA 30, which generally governs con-
struction of electric transmission lines. 2008 PA 295, and particularly
Part 4 of the act, provides a comprehensive legislative scheme for issuing
expedited siting certificates, and clearly intends construction of approved
transmission lines. Because 2008 PA 295 is an act complete in itself,
Const 1963, art 4, § 25 is not violated. See Alan v Wayne Co, 388 Mich
210, 276-277 (1972), and People v Mahaney, 13 Mich 481, 496-497 (1865).
In all other respects, the applications are denied, because we are not
persuaded that the remaining questions presented should be reviewed by
this Court.
O
RDERS IN
C
ASES
947
Leave to Appeal Granted March 27, 2013:
P
EOPLE V
J
AMES
H
ARRIS
, No. 146212; Court of Appeals No. 304875. The
application for leave to appeal the September 27, 2012, judgment of the
Court of Appeals is considered, and it is granted, limited to the issue
whether the evidence was sufficient to sustain the defendant’s conviction
of extortion.
F
RADCO
,I
NC V
D
EPARTMENT OF
T
REASURY
, No. 146333; reported below: 298
Mich App 292. The parties shall address: (1) whether the running of the
35-day time period in MCL 205.22(1) for an aggrieved taxpayer to file an
appeal in the Tax Tribunal from a final assessment is triggered when the
respondent Department of Treasury complies with the notice provision of
MCL 205.28(1)(a), or is there an additional notice requirement under MCL
205.8 when a taxpayer has filed a proper written request designating an
official representative to receive copies of letters and notices; and (2)
whether the tolling ruling adopted by the Tax Tribunal and the Court of
Appeals is contrary to the finality language of MCL 205.22(4) and (5).
The motion to stay the precedential effect of the published Court of
Appeals opinion, Fradco, Inc v Dep’t of Treasury, 298 Mich App 292
(2012), is granted in part regarding the statutory tolling ruling, but
denied in part regarding the respondent Department of Treasury’s
compliance with the mandate of MCL 205.8.
We further order that this case be argued and submitted to the Court
together with the case of SMK, LLC v Dep’t of Treasury (Docket No.
146335), at such future session of the Court as both cases are ready for
submission.
Persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
SMK, LLC v D
EPARTMENT OF
T
REASURY
, No. 146335; reported below:
298 Mich App 302. The parties shall address: (1) whether the running of
the 35-day time period in MCL 205.22(1) for an aggrieved taxpayer to file
an appeal in the Tax Tribunal from a final assessment is triggered when
the respondent Department of Treasury complies with the notice provi-
sion of MCL 205.28(1)(a), or is there an additional notice requirement
under MCL 205.8 when a taxpayer has filed a proper written request
designating an official representative to receive copies of letters and
notices; and (2) whether the tolling ruling adopted by the Tax Tribunal
and the Court of Appeals is contrary to the finality language of MCL
205.22(4) and (5).
The motion to stay the precedential effect of the published Court of
Appeals opinion, SMK, LLC v Dep’t of Treasury, 298 Mich App 302
(2012), is granted in part regarding the statutory tolling ruling, but
denied in part regarding the respondent Department of Treasury’s
compliance with the mandate of MCL 205.8.
We further order that this case be argued and submitted to the Court
together with the case of Fradco, Inc v Dep’t of Treasury (Docket No.
146333), at such future session of the Court as both cases are ready for
submission.
948 493 M
ICHIGAN
R
EPORTS
Persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
Leave to Appeal Denied March 27, 2013:
C
URTISS V
M
ENARD
,I
NC
, No. 145958; Court of Appeals No. 304665.
J
OHNSON V
J
ONES
, No. 146117; Court of Appeals No. 308722.
Leave to Appeal Granted March 29, 2013:
C
HERRYLAND
E
LECTRIC
C
OOPERATIVE V
B
LAIR
T
OWNSHIP
, Nos. 145340,
145341, and 145342; Court of Appeals Nos. 296829, 296830, and
296856. The parties shall include among the issues to be briefed: (1)
whether a township assessor has an independent obligation to determine
the true cash value of all property within the jurisdiction of a township
(see MCL 211.2(2); MCL 211.10(1)), or whether, in determining true cash
value, a township assessor is obligated to follow the personal tax
reporting form approved by the State Tax Commission (see MCL
211.19(2); MCL 211.19(5)); and (2) whether these cases involve a mutual
mistake of fact within the meaning of MCL 211.53a.
The State Bar of Michigan Taxation Section and the Michigan
Townships Association are invited to file briefs amicus curiae. Other
persons or groups interested in the determination of the issues presented
in this case may move the Court for permission to file briefs amicus
curiae.
P
EOPLE V
G
ARRETT
, No. 145594; Court of Appeals No. 307728. The
parties shall include among the issues to be briefed: (1) by what standard(s)
Michigan courts consider a defendant’s assertion that the evidence demon-
strates a significant possibility that he is actually innocent of the crime in
the context of a motion brought pursuant to MCR 6.508, and whether the
defendant in this case qualifies under that standard; (2) whether the
Michigan Court Rules, MCR 6.500, et seq. or another provision, provide a
basis for relief where a defendant demonstrates a significant possibility of
actual innocence; and (3) whether, if MCR 6.508(D) does bar relief, there is
an independent basis on which a defendant who demonstrates a significant
possibility of actual innocence may nonetheless seek relief under the United
States or Michigan Constitutions.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys Association of Michigan are invited to file briefs amicus curiae.
Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
M
C
C
ORMACK
,J.(concurring).
In addressing the issues highlighted in this order, I encourage the
parties to consider the following: (1) whether MCR 6.508(D)(2) bars relief
premised on issues previously decided against defendant on direct appeal;
(2) whether MCR 6.508(D)(2) bars a claim of ineffective assistance of
O
RDERS IN
C
ASES
949
counsel when that claim is premised on an issue previously decided
against defendant on direct appeal; (3) the scope of relief, if any, available
to a defendant under MCR 7.316(A)(7) in light of MCR 6.508(D); and (4)
whether, when the only grounds for relief properly presented under MCR
6.508(D) are insufficient to entitle defendant to relief under that provi-
sion, a court may nonetheless consider, in conjunction with those
grounds, claims and evidence considered at an earlier stage of review.
M
ARKMAN
, J., joined the statement of M
C
C
ORMACK
,J.
In re A
PPLICATION OF
T
HE
D
ETROIT
E
DISON
C
OMPANY TO
I
NCREASE
R
ATES
,
No. 145750; reported below: 297 Mich App 377. The parties shall
address: (1) whether the Court of Appeals erred in concluding that MCL
460.6a(1) is subject to “reasonable but differing interpretations” and
therefore ambiguous, see Mayor of Lansing v Pub Serv Comm, 470 Mich
154, 166 (2004) (ambiguity arises where a provision of the law “ ‘irrec-
oncilably conflict[s]’ with another provision...or where it is equally
susceptible to more than a single meaning”), citing Klapp v United Ins
Group Agency, 468 Mich 459, 467 (2003); and (2) whether MCL 460.6a(1)
requires that a refund to primary customers required after a utility
implements increased rates or charges under that subsection be allocated
to each primary customer that was over-charged on the basis of the
amount paid by each primary customer.
Summary Disposition April 1, 2013:
P
EOPLE V
H
ARTWICK
, No. 146089; Court of Appeals No. 312308. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals for consideration, as on leave granted,
of (1) whether the defendant was entitled to dismissal of the marijuana-
related charges under the immunity provision in§4oftheMichigan
Medical Marihuana Act (MMMA), MCL 333.26424; (2) whether the
defendant was entitled to dismissal of the charges under the affirmative
defense in § 8(a) of the MMMA, MCL 333.26428(a); and (3) if the
defendant was not entitled to dismissal, whether he is permitted to raise
the § 8 affirmative defense at trial.
D
AVID
C
ONRAD
,DDSvC
ERTAINTEED
C
ORPORATION
, No. 146369; Court of
Appeals No. 308705. Pursuant to MCR 7.302(H)(1), in lieu of granting
leave to appeal, we remand this case to the Court of Appeals for
consideration as on leave granted.
P
EOPLE V
T
UTTLE
, No. 146392; Court of Appeals No. 312364. Pursuant
to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand this
case to the Court of Appeals for consideration, as on leave granted, of (1)
whether the defendant was entitled to dismissal of the marijuana-related
charges in Counts IV through VII of the second amended information
under the immunity provision in§4oftheMichigan Medical Marihuana
Act (MMMA), MCL 333.26424; (2) whether the defendant was entitled to
dismissal of these charges under the affirmative defense in § 8(a) of the
950 493 M
ICHIGAN
R
EPORTS
MMMA, MCL 333.26428(a); and (3) if the defendant was not entitled to
dismissal, whether he is permitted to raise the § 8 affirmative defense at
trial.
Leave to Appeal Denied April 1, 2013:
G
REEN V
D
EPARTMENT OF
C
ORRECTIONS
, No. 144123; Court of Appeals No.
302857.
V
IVIANO
, J., did not participate because he presided over this case in
the circuit court.
AM R
ODRIGUEZ
A
SSOCIATES
,I
NC V
C
ITY
C
OUNCIL OF THE
C
ITY OF THE
V
ILLAGE
OF
D
OUGLAS
, No. 144654; Court of Appeals No. 299510.
JH B
USINESS
C
ONSULTANTS
,I
NC V
T
OWER
A
UTOMOTIVE
O
PERATIONS
USA III,
LLC, No. 144982; Court of Appeals No. 304592.
M&TB
ANK V
R
AMONDETTA
, No. 145158; Court of Appeals No. 305123.
P
EOPLE V
J
ORDAN
, No. 145286; Court of Appeals No. 308278.
C
RANE V
D
IRECTOR OF
A
SSESSING FOR THE
C
HARTER
T
OWNSHIP OF
W
EST
B
LOOMFIELD
, No. 145551; Court of Appeals No. 301878.
S
TAFFNEY V
K
INROSS
C
ORRECTIONAL
F
ACILITY
W
ARDEN
, No. 145706; Court
of Appeals No. 310338.
L
ANDON V
C
ITY OF
F
LINT
, Nos. 145799, 145780, 145781, and 145782;
Court of Appeals Nos. 301802, 301832, 301905, and 301919.
L
ANDON V
T
OWNSHIP OF
M
T
M
ORRIS
, No. 145804; Court of Appeals No.
301986.
L
ANDON V
C
ITY OF
F
LINT
, Nos. 145834, 145835, 145836, and 145837;
Court of Appeals Nos. 301802, 301832, 301905, and 301919.
P
EOPLE V
C
ORNELIUS
, No. 145841; Court of Appeals No. 305076.
N
EW
P
ROPERTIES
,I
NC V
L
AKES OF THE
N
ORTH
A
SSOCIATION
, No. 145862;
Court of Appeals No. 301910.
P
EOPLE V
A
ARON
H
INZMAN
, No. 145876; Court of Appeals No. 308909.
P
EOPLE V
R
EBECCA
H
INZMAN
, No. 145878; Court of Appeals No. 308910.
D
UNN V
W
EST
S
HORELINE
C
ORRECTIONAL
F
ACILITY
W
ARDEN
, No. 145932;
Court of Appeals No. 309214.
P
AIGE V
E
VER
H
OME
M
ORTGAGE
C
OMPANY
, No. 145948; Court of Appeals
No. 304300.
P
EOPLE V
H
OWZE
, No. 145971; Court of Appeals No. 311012.
P
EOPLE V
C
HRISTOPHER
S
MITH
, No. 145982; Court of Appeals No. 308836.
P
EOPLE V
M
YLES
F
REDERICK
, No. 146016; Court of Appeals No. 310277.
O
RDERS IN
C
ASES
951
P
EOPLE V
M
INIX
, No. 146050; Court of Appeals No. 310577.
P
EOPLE V
L
EADINGHAM
, No. 146051; Court of Appeals No. 309333.
P
EOPLE V
A
CQUAAH
, No. 146054; Court of Appeals No. 307424.
P
EOPLE V
E
MERY
, No. 146059; Court of Appeals No. 309208.
P
EOPLE V
B
IJARRO
, No. 146062; Court of Appeals No. 309280.
P
EOPLE V
H
ENDRIX
, No. 146063; Court of Appeals No. 309638.
P
EOPLE V
S
T
A
NN
, No. 146065; Court of Appeals No. 311613.
P
EOPLE V
K
IRKSEY
, No. 146066; Court of Appeals No. 305953.
P
EOPLE V
D
ESMYTHER
, No. 146069; Court of Appeals No. 311888.
P
EOPLE V
D
OBBS
, Nos. 146082 and 146083; Court of Appeals Nos.
305097 and 305098.
P
EOPLE V
B
RANDON
B
ELL
, No. 146106; Court of Appeals No. 312152.
P
EOPLE V
P
OSEY
, No. 146113; Court of Appeals No. 309530.
P
EOPLE V
H
AROLD
M
ARTIN
, No. 146124; Court of Appeals No. 311507.
P
EOPLE V
D
OUGLAS
S
TEWART
, No. 146129; Court of Appeals No. 303879.
P
EOPLE V
B
LAKE
, Nos. 146132 and 146134; Court of Appeals Nos.
311660 and 311665.
P
EOPLE V
H
ANSERD
, No. 146133; Court of Appeals No. 305804.
P
EOPLE V
B
URTON
, No. 146139; Court of Appeals No. 298864.
P
EOPLE V
R
OBERT
P
ARKS
, No. 146144; Court of Appeals No. 303683.
P
EOPLE V
M
C
C
ALL
, No. 146145; Court of Appeals No. 306336.
S
HIPMAN V
S
TOUT
R
ISIUS
R
OSS
,I
NC
, No. 146151; Court of Appeals No.
303288.
TMW E
NTERPRISES
,I
NC V
D
EPARTMENT OF
T
REASURY
, No. 146163; re-
ported below: 297 Mich App 590.
P
EOPLE V
J
ASEN
T
HOMAS
, No. 146165; Court of Appeals No. 301683.
L
EMON V
B
OUDREAU
, No. 146169; Court of Appeals No. 304642.
P
EOPLE V
C
ALDWELL
, No. 146170; Court of Appeals No. 298791.
P
EOPLE V
J
OHNSTON
, Nos. 146172 and 146173; Court of Appeals Nos.
302477 and 302480.
V
AN
T
OL
,M
AGENNIS
&L
ANG
,I
NC V
W
OODWARD
, No. 146174; Court of
Appeals No. 305313.
P
EOPLE V
E
LLERY
B
ENNETT
, No. 146178; Court of Appeals No. 303025.
952 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
B
ENTON
, No. 146180; Court of Appeals No. 310050.
P
EOPLE V
B
ARTLEY
, No. 146185; Court of Appeals No. 305813.
P
EOPLE V
R
IGTERINK
, No. 146186; Court of Appeals No. 307568.
P
EOPLE V
S
COTT
, No. 146190; Court of Appeals No. 303671.
P
EOPLE V
G
RUBBS
, No. 146191; Court of Appeals No. 305433.
A
MERISURE
I
NSURANCE
C
OMPANY V
D
EBRUYN
P
RODUCE
C
OMPANY
, No.
146192; reported below: 298 Mich App 137.
P
EOPLE V
W
OODROW
W
ILSON
, No. 146195; Court of Appeals No. 312001.
P
EOPLE V
M
C
M
ILLAN
, No. 146196; Court of Appeals No. 309731.
P
EOPLE V
V
EGA
, No. 146200; Court of Appeals No. 298749.
S
LOMKA V
H
AMTRAMCK
H
OUSING
C
OMMISSION
, Nos. 146201 and 146202;
Court of Appeals Nos. 298025 and 299211.
P
EOPLE V
M
AX
R
OGERS
, No. 146203; Court of Appeals No. 309505.
P
EOPLE V
W
ELCH
, No. 146205; Court of Appeals No. 301873.
P
EOPLE V
B
IRGE
, No. 146207; Court of Appeals No. 305744.
P
EOPLE V
N
OVAK
, No. 146209; Court of Appeals No. 311775.
P
EOPLE OF THE
C
ITY OF
T
ROY V
H
AGGARTY
, No. 146219; Court of Appeals
No. 305646.
P
EOPLE V
L
EONDRE
C
ARR
, No. 146227; Court of Appeals No. 302370.
P
EOPLE V
A
NTHONY
A
LLEN
, Nos. 146231 and 146232; Court of Appeals
Nos. 304645 and 305081.
P
EOPLE V
P
ETER
P
EREZ
, No. 146233; Court of Appeals No. 305006.
M
C
P
HERSON
M
ANSION
LLCvC
ITY OF
H
OWELL
, No. 146237; Court of
Appeals No. 305705.
L
INDEBLAD V
G
RASMAN
, No. 146239; Court of Appeals No. 306159.
P
EOPLE V
N
ACCARATO
, No. 146242; Court of Appeals No. 305222.
P
EOPLE OF THE
C
ITY OF
B
AY
C
ITY V
H
AMPTON
, No. 146243; Court of
Appeals No. 308849.
S
OUTH
L
YON
W
OODS
A
SSOCIATES
,LLCvC
ITY OF
S
OUTH
L
YON
, No. 146246;
Court of Appeals No. 305159.
H
AZELTON V
CF F
ICK AND
S
ONS
,I
NC
, No. 146247; Court of Appeals No.
307024.
C
AVANAGH
, J., would grant leave to appeal.
J
AVORSKY V
H
URON
V
ALLEY
S
CHOOLS
, No. 146248; Court of Appeals No.
308443.
O
RDERS IN
C
ASES
953
P
EOPLE V
O
BRIEN
, No. 146249; Court of Appeals No. 311975.
B
AKRI V
M
ORTGAGE
E
LECTRONIC
R
EGISTRATION
S
YSTEM
, No. 146255; Court
of Appeals No. 297962.
H
UNT V
L
OWER
H
ARBOR
P
ROPERTIES
, LLC, No. 146257; Court of Appeals
No. 303960.
P
EOPLE V
A
SHFORD
, No. 146263; Court of Appeals No. 309833.
P
EOPLE V
C
HORAZYCZEWSKI
, No. 146265; Court of Appeals No. 305735.
E
L
-S
AYED V
M
EHSEN
G
ARMO
,R
OYSE
,I
NC
, No. 146267; Court of Appeals
No. 304454.
P
EOPLE V
B
USH
, No. 146269; Court of Appeals No. 305682.
P
EOPLE V
B
ARYLSKI
, Nos. 146273 and 146274; Court of Appeals Nos.
302942 and 306650.
P
EOPLE V
H
ANEY
, No. 146279; Court of Appeals No. 304248.
P
EOPLE V
B
IVINS
, No. 146280; Court of Appeals No. 305555.
D
EZAAK
M
ANAGEMENT
,I
NC V
A
UTO
-O
WNERS
I
NSURANCE
C
OMPANY
, No.
146281; Court of Appeals No. 307025.
In re C
HADDAH
, No. 146282; Court of Appeals No. 306978.
P
EOPLE V
S
HAVONTAE
W
ILLIAMS
, No. 146283; Court of Appeals No.
301336.
P
EOPLE V
V
INCENT
W
ASHINGTON
, No. 146286; Court of Appeals No.
305405.
J
ESSEE V
W
ALGREEN
C
OMPANY
, No. 146297; Court of Appeals No. 306563.
C
ITIZENS
I
NSURANCE
C
OMPANY OF
A
MERICA V
P
ROFESSIONAL
T
EMPERATURE
H
EATING AND
A
IR
C
ONDITIONING
,I
NC
, Nos. 146299 and 146301; Court of
Appeals No. 300524.
P
EOPLE V
B
ELL
-C
OOK
, No. 146300; Court of Appeals No. 305931.
P
EOPLE V
D
ELBRIDGE
A
LEXANDER
, No. 146315; Court of Appeals No.
304854.
P
EOPLE V
M
ARTIN
L
EWIS
, No. 146320; Court of Appeals No. 312391.
P
EOPLE V
H
URSEY
, No. 146323; Court of Appeals No. 312012.
P
EOPLE V
W
ILLIAM
J
ESSIE
B
ROWN
, No. 146325; Court of Appeals No.
306201.
P
EOPLE V
E
RIC
J
ACKSON
, No. 146326; Court of Appeals No. 312705.
P
EOPLE V
M
OBLEY
, No. 146327; Court of Appeals No. 307603.
P
EOPLE V
N
APIER
, No. 146328; Court of Appeals No. 305277.
C
AVANAGH
, J., would grant leave to appeal.
954 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
R
ONALD
A
LLEN
, No. 146331; Court of Appeals No. 304860.
P
EOPLE V
N
ICHOLAS
K
ING
, No. 146336; Court of Appeals No. 306132.
CJ’s E
XCAVATING
,I
NC V
C
ITY OF
F
RANKFORT
, No. 146339; Court of
Appeals No. 309849.
P
EOPLE V
G
ERALD
P
ERRY
, No. 146342; Court of Appeals No. 310506.
P
EOPLE V
S
IMPSON
, No. 146350; Court of Appeals No. 312343.
P
EOPLE V
R
AO
, No. 146355; Court of Appeals No. 289343.
P
EOPLE V
E
LMORE
, No. 146361; Court of Appeals No. 302408.
P
EOPLE V
C
OREY
W
ALKER
, No. 146363; Court of Appeals No. 301039.
P
EOPLE V
D
ANIELS
, No. 146366; Court of Appeals No. 302808.
P
EOPLE V
S
COTT
G
RAHAM
, No. 146367; Court of Appeals No. 306508.
P
EOPLE V
M
ICHAEL
A
NDERSON
, No. 146370; reported below: 298 Mich
App 178.
P
EOPLE V
J
EROME
P
OWELL
, No. 146372; Court of Appeals No. 305542.
W
ILSON V
K
ING
, No. 146373; reported below: 298 Mich App 378.
P
EOPLE V
A
NTIONNE
M
URPHY
, No. 146375; Court of Appeals No. 298496.
P
EOPLE V
A
LCARAZ
, No. 146376; Court of Appeals No. 310366.
P
EOPLE V
M
ACOVEI
, No. 146380; Court of Appeals No. 305577.
P
EOPLE V
B
ROOKS
, No. 146388; Court of Appeals No. 305357.
A
LEXANDER V
C
ASSIDY
, No. 146389; Court of Appeals No. 301860.
P
EOPLE V
M
ATTHEW
M
OORE
, No. 146393; Court of Appeals No. 310823.
P
EOPLE V
C
HESTER
G
ARDNER
, No. 146395; Court of Appeals No. 304449.
P
EOPLE V
P
ATRIDGE
, No. 146396; Court of Appeals No. 307248.
P
EOPLE V
G
EORGE
M
OORE
, No. 146399; Court of Appeals No. 297993.
P
EOPLE V
B
URNETTE
, No. 146409; Court of Appeals No. 312431.
V
IVIANO
, J., did not participate because he presided over this case in
the circuit court.
B
ONSU V
O
CWEN
L
OAN
S
ERVICING
, LLC, No. 146412; Court of Appeals No.
307638.
P
EOPLE V
R
AYNADA
J
ONES
, No. 146416; Court of Appeals No. 307000.
C
AVANAGH
, J., would grant leave to appeal.
P
EOPLE V
D
ARRELL
C
ARPENTER
, No. 146421; Court of Appeals No.
307811.
O
RDERS IN
C
ASES
955
B
ALLERINI V
D
EPARTMENT OF
C
ORRECTIONS
, No. 146424; Court of Appeals
No. 307226.
C
LARK V
C
ARSON
C
ITY
C
ORRECTIONAL
F
ACILITY
W
ARDEN
, No. 146432; Court
of Appeals No. 310394.
P
EOPLE V
M
ARK
M
ARVIN
, No. 146439; Court of Appeals No. 312673.
P
EOPLE V
M
C
D
UFF
, No. 146475; Court of Appeals No. 313162.
M
OORE V
W
ALGREENS
C
OMPANY
, No. 146476; Court of Appeals No.
303768.
A
UTO
C
LUB
I
NSURANCE
A
SSOCIATION V
F
RANKENMUTH
M
UTUAL
I
NSURANCE
C
OMPANY
, No. 146487; Court of Appeals No. 305592.
P
EOPLE V
S
HERWOOD
, Nos. 146495, 146497, 146499, and 146501; Court
of Appeals Nos. 313017, 313018, 313028, and 313058.
T
ORRES V
K
INROSS
C
ORRECTIONAL
F
ACILITY
W
ARDEN
, No. 146504; Court of
Appeals No. 311348.
P
EOPLE V
A
SHENHURST
-G
ALLINA
, No. 146508; Court of Appeals No.
309450.
B
LACKBURN V
G
RENQUIST
, No. 146534; Court of Appeals No. 309921.
P
EOPLE V
M
C
F
ARLAND
, No. 146594; Court of Appeals No. 304045.
W
ARNER
N
ORCROSS
&J
UDD
, LLP v RDD I
NVESTMENT
C
ORPORATION
, No.
146702; Court of Appeals No. 312779.
In re K
OWALSKI
, No. 146712; Court of Appeals No. 311187.
Superintending Control Denied April 1, 2013:
L
ANE V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 146258.
C
ARLSON V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 146451.
Order Entered April 1, 2013:
In re H
ONORABLE
D
IANE
MH
ATHAWAY
, No. 146460. The Judicial Tenure
Commission having filed a written withdrawal of the motion for imme-
diate consideration, petition for interim suspension, and request for
appointment of master, the motion, petition, and request are dismissed.
Reconsideration Denied April 1, 2013:
S
EXTON
-W
ALKER V
G
REAT
E
XPRESSIONS
D
ENTAL
C
ENTERS
, PC, No. 145274;
Court of Appeals No. 302513. Leave to appeal denied at 493 Mich 901.
956 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
J
AMES
T
AYLOR
, No. 145333; Court of Appeals No.
307168. Leave to appeal denied at 493 Mich 901.
G
RIEVANCE
A
DMINISTRATOR V
W
IDENBAUM
, No. 145418. Leave to appeal
denied at 493 Mich 901.
P
EOPLE V
M
OSS
, No. 145420; Court of Appeals No. 307954. Leave to
appeal denied at 493 Mich 892.
P
EOPLE V
B
LANKENSHIP
, No. 145639; Court of Appeals No. 309196. Leave
to appeal denied at 493 Mich 918.
P
EOPLE V
R
AGLAND
, No. 145665; Court of Appeals No. 306906. Leave to
appeal denied at 493 Mich 895.
P
EOPLE V
V
ARTINELLI
, No. 145685; Court of Appeals No. 308509. Leave
to appeal denied at 493 Mich 918.
P
EOPLE V
B
URKE
, No. 145696; Court of Appeals No. 307702. Leave to
appeal denied at 493 Mich 918.
P
EOPLE V
D
ARRIUS
G
REENE
, No. 145830; Court of Appeals No.
293513. Leave to appeal denied at 493 Mich 919.
P
EOPLE V
O
BAR
E
LLIS
, No. 145904; Court of Appeals No. 303095. Leave
to appeal denied at 493 Mich 920.
Summary Disposition April 3, 2013:
R
UGIERO V
D
INARDO
, Nos. 145577, 145578, 145579, 145580, 145581,
145582, 145583, and 145584; Court of Appeals Nos. 301829, 302192,
302228, 302936, 302963, 303259, 303707, and 307630. Pursuant to MCR
7.302(H)(1), in lieu of granting leave to appeal, we vacate that part of the
judgment of the Court of Appeals related to the imposition of attorney
fees, and we remand this case to the Wayne Circuit Court for an
evidentiary hearing regarding whether the fees granted in the court’s
earlier interim awards pursuant to MCR 3.206(C) should be imposed as
a final matter or otherwise modified as the evidence and circumstances
may warrant. In all other respects, leave to appeal is denied, because we
are not persuaded that the remaining questions presented should be
reviewed by this Court.
We do not retain jurisdiction.
Leave to Appeal Granted April 3, 2013:
T
ER
B
EEK V
C
ITY OF
W
YOMING
, No. 145816; reported below: 297 Mich
App 446. The parties shall include among the issues to be briefed: (1)
whether the defendant city’s zoning code ordinance, which prohibits any
use that is contrary to federal law, state law, or local ordinance, is subject
to state preemption by the Michigan Medical Marihuana Act (MMMA),
MCL 333.26421 et seq.; and (2) if so, whether the MMMA is subject to
O
RDERS IN
C
ASES
957
federal preemption by the federal Controlled Substances Act (CSA), 21
USC 801 et seq., on either impossibility or obstacle conflict preemption
grounds. See 21 USC 903.
Persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs
amicus curiae.
M
AJESTIC
G
OLF
,LLCvL
AKE
W
ALDEN
C
OUNTRY
C
LUB
, No. 145988;
reported below 297 Mich App 305.
P
EOPLE V
T
ANNER
, No. 146211; Court of Appeals No. 310668.
Order Granting Oral Argument in Case Pending on Application for Leave
to Appeal Entered April 3, 2013:
H
UDDLESTON V
T
RINITY
H
EALTH
M
ICHIGAN
, No. 146041; Court of Appeals
No. 303401. We direct the clerk to schedule oral argument on whether to
grant the application or take other action. MCR 7.302(H)(1). The parties
shall submit briefs within 42 days of the date of this order addressing
whether the Court of Appeals erred when it concluded that the plaintiff
suffered a compensable injury; whether it misapplied Sutter v Biggs, 377
Mich 80 (1966); and whether its decision is contrary to Henry v Dow
Chemical Co, 473 Mich 63 (2005).
The Michigan Association for Justice and Michigan Defense Trial
Counsel, Inc. are invited to file briefs amicus curiae. Other persons or
groups interested in the determination of the issues presented in this
case may move the Court for permission to file briefs amicus curiae.
Leave to Appeal Denied April 3, 2013:
In re T
IEMANN
, Nos. 145416 and 145417; reported below: 297 Mich App
250.
E
NGELHARDT V
S
T
J
OHN
H
EALTH
S
YSTEM
–D
ETROIT
–M
ACOMB
C
AMPUS
, No.
145923; Court of Appeals No. 292143.
P
EOPLE V
R
OUMMEL
I
NGRAM
, No. 145942; Court of Appeals No. 310422.
P
EOPLE V
R
YAN
J
ONES
, No. 145995; Court of Appeals No. 307935.
Summary Disposition April 5, 2013:
P
EOPLE V
L
UMBRERAS
, No. 146547; Court of Appeals No. 311971. Pur-
suant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand
this case to the Court of Appeals for consideration as on leave granted.
G
ARLAND V
H
ARTMAN
&T
YNER
,I
NC
, No. 146564; Court of Appeals No.
313120. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration as
on leave granted.
958 493 M
ICHIGAN
R
EPORTS
Leave to Appeal Granted April 5, 2013:
In re S
ANDERS
, No. 146680; Court of Appeals No. 313385. The parties
shall address whether the application of the one-parent doctrine violates
the due process or equal protection rights of unadjudicated parents.
We further direct the appellant to promptly order preparation of
transcripts of the adjudication hearing and any other proceeding where
the appellant offered testimony on the record or asserted his right to an
adjudication. The appellant shall forward copies of all prepared tran-
scripts to this Court.
The motion for leave to file brief amicus curiae is granted. The
Children’s Law Section of the State Bar of Michigan is invited to file a
brief amicus curiae. Other persons or groups interested in the determi-
nation of the issue presented in this case may move the Court for
permission to file briefs amicus curiae.
Leave to Appeal Denied April 5, 2013:
P
EOPLE V
K
IRCHER
, No. 144740; Court of Appeals No. 306579.
M
ARKMAN
,J.(concurring). A five-year prison sentence was imposed on
this 66-year-old defendant, an apartment building owner, who when the
bottom floor of his building flooded with sewage, and under what he
viewed as emergency circumstances, pumped that sewage into a catch
basin that ultimately led to the Huron River. Although what defendant
did was clearly wrong and in violation of the law, I continue to question
(as did two other justices when this case was originally before the Court)
whether the Legislature in enacting MCL 324.3115(4) imposed what the
lower courts viewed as a mandatory five-year prison sentence. See People
v Kircher, 483 Mich 986 (2009) (M
ARKMAN
, J., dissenting). However,
because this is a motion for relief from judgment and this issue has
already been decided against defendant and he has not established “good
cause” for previously failing to raise his new issues, I concur that he is not
entitled to relief under MCR 6.508(D).
C
ABALA V
A
LLEN
, No. 146131; Court of Appeals No. 305250.
P
EOPLE V
H
IGHERS
, Nos. 146502 and 146503; Court of Appeals Nos.
311865 and 311875.
M
C
C
ORMACK
, J., did not participate because of her prior involvement as
counsel for a party.
In re SCP, No. 146686; Court of Appeals No. 308851.
Order Entered April 5, 2013:
P
EOPLE V
E
VANS
, No. 141381; Court of Appeals No. 290833. In confor-
mity with the mandate of the Supreme Court of the United States, the
judgment and opinion of this Court dated March 26, 2012 (reported at
O
RDERS IN
C
ASES
959
491 Mich 1) and the judgment of the Court of Appeals entered May 13,
2010 are vacated. The judgment of the Circuit Court for the County of
Wayne is affirmed.
Summary Disposition April 12, 2013:
L
E
F
EVERS V
S
TATE
F
ARM
M
UTUAL
A
UTOMOBILE
I
NSURANCE
C
OMPANY
, No.
144781; Court of Appeals No. 298216. On March 7, 2013, the Court
heard oral argument on the application for leave to appeal the December
13, 2011, judgment of the Court of Appeals. On order of the Court, the
application is again considered. MCR 7.302(H)(1). In lieu of granting
leave to appeal, we vacate the December 13, 2011, judgment of the Court
of Appeals and the January 31, 2012, order of the Court of Appeals
denying the motion for reconsideration, and remand this case to the
Wayne Circuit Court for further proceedings. The Court of Appeals erred
by failing to recognize that the decision in Frazier v Allstate Ins Co, 490
Mich 381 (2011), effectively disavowed Miller v Auto-Owners Ins Co, 411
Mich 633 (1981), and Gunsell v Ryan, 236 Mich App 204 (1999), to the
extent those decisions are inconsistent with Frazier. Specifically, Frazier
effectively disavowed as dicta the portion of Miller, supra, stating:
“Section 3106(b) recognizes that some parked vehicles may still be
operated as motor vehicles, creating a risk of injury from such use as a
vehicle. Thus a parked delivery truck may cause injury in the course of
raising or lowering its lift or the door of a parked car, when opened into
traffic, may cause an accident. Accidents of this type involve the vehicle
as a motor vehicle.” 411 Mich at 640. Frazier also effectively disavowed
the discussion of MCL 500.3106(1)(b) in Gunsell, supra, 236 Mich App at
210n5.
On remand, the circuit court shall reconsider the defendant’s motion
for summary disposition in light of Frazier, and shall allow the parties to
expand the evidentiary record to the extent necessary for a determination
whether the tailgate on the plaintiff’s dump trailer was “equipment
permanently mounted on the vehicle” for purposes of MCL
500.3106(1)(b). For example, the parties shall be allowed to present
evidence as to whether the tailgate was a constituent part of the “means
in or by which [the contaminated soil was] carried or conveyed,” and, if
not, whether the tailgate was nonetheless an “article[], implement[],
etc.,” that was “mounted on the vehicle” and “used or needed for a
specific purpose or activity.”
C
AVANAGH
,J.(dissenting). I respectfully dissent from the majority’s
decision to vacate the Court of Appeals’ judgment and remand the case to
the trial court for further factual development.
In Frazier v Allstate Ins Co, 490 Mich 381, 385 (2011), a majority of
this Court held that the “constituent parts of ‘the vehicle’ itself are not
‘equipment’ ” for the purposes of MCL 500.3106(1)(b).
1
The majority
1
Given the majority’s decision to remand this case to the trial court, I
express no opinion about the merits of the Frazier majority’s interpreta-
tion of MCL 500.3106.
960 493 M
ICHIGAN
R
EPORTS
reasoned that excluding the constituent parts of a vehicle from the
definition of “equipment” prevented that definition from “engulf[ing]”
the definition of “vehicle.” Id. Accordingly, the majority held that the
passenger door of a noncommercial vehicle was a constituent part of the
vehicle itself, not equipment. Id. at 386. The Frazier majority, however,
only considered the outer bounds of what parts of a vehicle should be
excluded from the definition of “equipment” under MCL 500.3106(1)(b).
As a result, the particularities of what amounts to a constituent part of
the vehicle, on one hand, and what amounts to equipment, on the other
hand, was left unanswered by Frazier. Indeed, the Frazier majority found
it unnecessary to define the term “constituent” within the context of its
analysis under MCL 500.3106(1)(b), and the majority fails to do so in its
order today.
2
Moreover the majority’s order assumes that the application of Frazier
is straightforward and, under that guise, imposes a two-step analysis that
will have the parties first address whether the tailgate was a “constituent
part of the ‘means in or by which [the contaminated soil was] carried or
conveyed,’ ” and only if that question is answered in the negative will the
parties be permitted to address the “specific purpose” of the tailgate as
alleged equipment. I am uncertain regarding whether this two-step
analysis was clearly contemplated by the Frazier majority, and such an
analysis has the potential to result in an overly narrow definition of
“equipment” that may be inconsistent with MCL 500.3106(b)(1).
Thus, I dissent from the majority’s order because it leaves the parties
and the courts below without a firm resolution of the issues that this
Court asked the parties to address
3
and may result in an erroneous
interpretation of MCL 500.3106(b)(1).
Leave to Appeal Denied April 12, 2013:
In re B
ANKS
/K
IMBLE
, No. 146843; Court of Appeals No. 311934.
P
EOPLE V
C
HAKKOUR
, No. 146922; Court of Appeals No. 314726.
2
To resolve whether the tailgate on plaintiff’s dump trailer was
“equipment permanently mounted on the vehicle” for the purposes of
MCL 500.3106(1)(b), the majority remands the case to the trial court. But
I question whether further factual development is needed to resolve this
case. Instead of factual uncertainty, I believe that the difficulties in this
case arise from the fact that the tailgate at issue stands in stark contrast
to the passenger door considered by the Frazier majority—a point that
the Court of Appeals, when denying defendant’s motion for reconsidera-
tion in light of the majority opinion in Frazier, has already discussed in
distinguishing Frazier. Thus, without greater elaboration from this
Court regarding Frazier’s interpretation of MCL 500.3106(1)(b), I ques-
tion the benefit of a remand.
3
See, also, Ile v Foremost Ins Co, 493 Mich 915, 915-916 (2012)
(M
ARILYN
K
ELLY
, J., dissenting).
O
RDERS IN
C
ASES
961
Rehearing Denied April 12, 2013:
P
EOPLE V
W
HITE
, No. 144387. Reported below: 294 Mich App
622. Opinion at 493 Mich 187. The motion for rehearing is consid-
ered, and it is denied. We reaffirm the principle stated more than 100
years ago in Peoples v Evening News Ass’n, 51 Mich 11, 21 (1883), that
“rehearing will not be ordered on the ground merely that a change of
members of the bench has either taken place, or is about to occur.” The
same is true for reconsideration. Likewise, we elect to apply MCR
2.119(F)(3) to these cases, which states, “[A] motion for rehearing or
reconsideration which merely presents the same issues ruled on by the
court, either expressly or by reasonable implication, will not be
granted.” MCR 2.119(F)(3). Instead, the moving party must demon-
strate “a palpable error by which the court and the parties have been
misled and show that a different disposition of the motion must result
from correction of the error.” Id. In this case, the moving party has
failed to satisfy either of these requirements and has, therefore, failed
to demonstrate grounds for rehearing.
Further, the Court has published for comment proposed amendments
of MCR 7.313(E) and MCR 7.313(F) to incorporate into the Court’s rules
the standards set forth in MCR 2.119(F)(3) with regard to motions for
rehearing and reconsideration. The publication order that contains the
proposed rule changes is attached.
*
K
IM V
JP M
ORGAN
C
HASE
B
ANK
, No. 144690. Opinion at 493 Mich 98. We
reaffirm the principle stated more than 100 years ago in Peoples v
Evening News Ass’n, 51 Mich 11, 21 (1883), that “rehearing will not be
ordered on the ground merely that a change of members of the bench has
either taken place, or is about to occur.” The same is true for reconsid-
eration. Likewise, we elect to apply MCR 2.119(F)(3) to these cases,
which states, “[A] motion for rehearing or reconsideration which merely
presents the same issues ruled on by the court, either expressly or by
reasonable implication, will not be granted.” MCR 2.119(F)(3). Instead,
the moving party must demonstrate “a palpable error by which the court
and the parties have been misled and show that a different disposition of
the motion must result from correction of the error.” Id. In this case, the
moving party has failed to satisfy either of these requirements and has,
therefore, failed to demonstrate grounds for rehearing.
Further, the Court has published for comment proposed amendments
of MCR 7.313(E) and MCR 7.313(F) to incorporate into the Court’s rules
the standards set forth in MCR 2.119(F)(3) with regard to motions for
rehearing and reconsideration. The publication order that contains the
proposed rule changes is attached.
*
* [For the text of the proposed rule amendment see 493 Mich 1229—
R
EPORTER
.]
* [For the text of the proposed rule amendment see 493 Mich 1229—
R
EPORTER
.]
962 493 M
ICHIGAN
R
EPORTS
Reconsideration Denied April 12, 2013:
B
OERTMANN V
C
INCINNATI
I
NSURANCE
C
OMPANY
, No. 142936; Court of
Appeals No. 293835. Summary disposition at 493 Mich 898. We reaffirm
the principle stated more than 100 years ago in Peoples v Evening News
Ass’n, 51 Mich 11, 21 (1883), that “rehearing will not be ordered on the
ground merely that a change of members of the bench has either taken
place, or is about to occur.” The same is true for reconsideration.
Likewise, we elect to apply MCR 2.119(F)(3) to these cases, which states,
“[A] motion for rehearing or reconsideration which merely presents the
same issues ruled on by the court, either expressly or by reasonable
implication, will not be granted.” MCR 2.119(F)(3). Instead, the moving
party must demonstrate “a palpable error by which the court and the
parties have been misled and show that a different disposition of the
motion must result from correction of the error.” Id. In this case, the
moving party has failed to satisfy either of these requirements and has,
therefore, failed to demonstrate grounds for reconsideration.
Further, the Court has published for comment proposed amendments
of MCR 7.313(E) and MCR 7.313(F) to incorporate into the Court’s rules
the standards set forth in MCR 2.119(F)(3) with regard to motions for
rehearing and reconsideration. The publication order that contains the
proposed rule changes is attached.
*
L
YON
C
HARTER
T
OWNSHIP V
M
C
D
ONALD
’s USA, LLC, No. 143342; Court
of Appeals No. 294074. Summary disposition at 493 Mich 906. We
reaffirm the principle stated more than 100 years ago in Peoples v
Evening News Ass’n, 51 Mich 11, 21 (1883), that “rehearing will not be
ordered on the ground merely that a change of members of the bench has
either taken place, or is about to occur.” The same is true for reconsid-
eration. Likewise, we elect to apply MCR 2.119(F)(3) to these cases,
which states, “[A] motion for rehearing or reconsideration which merely
presents the same issues ruled on by the court, either expressly or by
reasonable implication, will not be granted.” MCR 2.119(F)(3). Instead,
the moving party must demonstrate “a palpable error by which the court
and the parties have been misled and show that a different disposition of
the motion must result from correction of the error.” Id. In this case, the
moving party has failed to satisfy either of these requirements and has,
therefore, failed to demonstrate grounds for reconsideration.
Further, the Court has published for comment proposed amendments
of MCR 7.313(E) and MCR 7.313(F) to incorporate into the Court’s rules
the standards set forth in MCR 2.119(F)(3) with regard to motions for
rehearing and reconsideration. The publication order that contains the
proposed rule changes is attached.
*
* [For the text of the proposed rule amendment see 493 Mich 1229—
R
EPORTER
.]
* [For the text of the proposed rule amendment see 493 Mich 1229—
R
EPORTER
.]
O
RDERS IN
C
ASES
963
I
LE V
F
OREMOST
I
NSURANCE
C
OMPANY
, No. 143627; Court of Appeals
No. 295685. Summary disposition at 493 Mich 915. We reaffirm the
principle stated more than 100 years ago in Peoples v Evening News
Ass’n, 51 Mich 11, 21 (1883), that “rehearing will not be ordered on
the ground merely that a change of members of the bench has either
taken place, or is about to occur.” The same is true for reconsideration.
Likewise, we elect to apply MCR 2.119(F)(3) to these cases, which
states, “[A] motion for rehearing or reconsideration which merely
presents the same issues ruled on by the court, either expressly or by
reasonable implication, will not be granted.” MCR 2.119(F)(3). In-
stead, the moving party must demonstrate “a palpable error by which
the court and the parties have been misled and show that a different
disposition of the motion must result from correction of the error.” Id.
In this case, the moving party has failed to satisfy either of these
requirements and has, therefore, failed to demonstrate grounds for
reconsideration.
Further, the Court has published for comment proposed amendments
of MCR 7.313(E) and MCR 7.313(F) to incorporate into the Court’s rules
the standards set forth in MCR 2.119(F)(3) with regard to motions for
rehearing and reconsideration. The publication order that contains the
proposed rule changes is attached.
*
H
OFFMAN V
B
ARRETT
, No. 144875; Court of Appeals No.
289011. Leave to appeal denied at 493 Mich 925. Reported below: 295
Mich App 649. We reaffirm the principle stated more than 100 years
ago in Peoples v Evening News Ass’n, 51 Mich 11, 21 (1883), that
“rehearing will not be ordered on the ground merely that a change of
members of the bench has either taken place, or is about to occur.” The
same is true for reconsideration. Likewise, we elect to apply MCR
2.119(F)(3) to these cases, which states, “[A] motion for rehearing or
reconsideration which merely presents the same issues ruled on by the
court, either expressly or by reasonable implication, will not be
granted.” MCR 2.119(F)(3). Instead, the moving party must demon-
strate “a palpable error by which the court and the parties have been
misled and show that a different disposition of the motion must result
from correction of the error.” Id. In this case, the moving party has
failed to satisfy either of these requirements and has, therefore, failed
to demonstrate grounds for reconsideration.
Further, the Court has published for comment proposed amendments
of MCR 7.313(E) and MCR 7.313(F) to incorporate into the Court’s rules
the standards set forth in MCR 2.119(F)(3) with regard to motions for
rehearing and reconsideration. The publication order that contains the
proposed rule changes is attached.
*
* [For the text of the proposed rule amendment see 493 Mich 1229—
R
EPORTER
.]
* [For the text of the proposed rule amendment see 493 Mich 1229—
R
EPORTER
.]
964 493 M
ICHIGAN
R
EPORTS
Leave to Appeal Denied April 19, 2013:
P
EOPLE V
E
RICK
C
URRY
, No. 146271; Court of Appeals No. 311554.
P
EOPLE V
P
AHOSKI
, No. 146278; Court of Appeals No. 305230.
P
EOPLE V
J
OHNNY
W
ILLIAMS
, No. 144762; Court of Appeals No. 299484.
Summary Disposition April 26, 2013:
L
A
J
OICE V
N
ORTHERN
M
ICHIGAN
H
OSPITALS
,I
NC
, Nos. 145946, 145947,
145964, 145965, 145977, and 145978; Court of Appeals Nos. 300684,
300788, 300684, 300788, 300684, and 300788. Pursuant to MCR
7.302(H)(1), in lieu of granting leave to appeal, we reverse, in part, the
judgment of the Court of Appeals and reinstate the Emmet Circuit
Court’s September 30, 2010, order granting the defendants’ motions for
summary disposition. The application for leave to appeal as cross-
appellant is denied, because we are not persuaded that the questions
presented should be reviewed by this Court.
Contrary to the Court of Appeals’ holding, Bush v Shabahang, 484
Mich 156 (2009), does not apply here because the plaintiff did not file his
notice of intent until after the period of limitations had expired and thus,
unlike in Bush, the issue is not whether a defective notice of intent tolls
the period of limitations. Rather, it is whether a complaint filed after the
filing only of a defective notice of intent tolls the wrongful death saving
provision. We have already answered that question in the negative in
Boodt v Borgess Med Ctr, 481 Mich 558 (2008). As Boodt, 481 Mich at
562-563, explains:
MCL 600.2912b(1) states that “a person shall not commence an action
alleging medical malpractice against a health professional or health
facility unless the person has given the health professional or health
facility written notice under this section not less than 182 days before the
action is commenced.” MCL 600.2912b(4) states that the “notice given to
a health professional or health facility under this section shall contain a
statement of at least all of the following....”Therefore, a plaintiff
cannot commence an action before he or she files a notice of intent that
contains all the information required under § 2912b(4). Because plain-
tiff’s notice of intent here did not contain all the information required
under § 2912b(4), she could not have commenced an action. Therefore,
her complaint and affidavit of merit could not have tolled the period of
limitations. [Citation omitted.]
See also Ligons v Crittenton Hosp, 490 Mich 61, 74-75 (2011) (“once
the limitations period has run, tolling is no longer available, even if a
saving statute would still allow commencement of the action”). Because
the plaintiff’s complaint did not toll the saving period, and because the
saving period has now expired, the plaintiff’s action is time barred.
C
AVANAGH
,J.(dissenting). I respectfully dissent from the majority’s
decision to extend the principle established by a majority of this Court in
Waltz v Wyse, 469 Mich 642, 644 (2004)—that a defective notice of intent
does not toll the wrongful-death saving provision under MCL
O
RDERS IN
C
ASES
965
600.5852—to preclude plaintiff from amending the notice of intent
despite the fact that plaintiff is entitled to such relief under Bush v
Shabahang, 484 Mich 156 (2009). I continue to adhere to my dissenting
opinion in Waltz explaining that MCL 600.5856 applies to toll the
wrongful-death saving period. Waltz, 469 Mich at 655-672 (C
AVANAGH
,J.,
dissenting). Thus, in my view, it makes no difference that the Bush
plaintiff relied on the statute of limitations, whereas plaintiff here relies
on the wrongful-death saving period.
Irrespective of this Court’s holding in Bush, it is my view that “when
a notice of intent...isdeficient, MCL 600.2301 should control and the
deficiency should be disregarded if there is no effect on the substantial
rights of a party.” Boodt v Borgess Med Ctr, 481 Mich 558, 564 (2008)
(C
AVANAGH
, J., dissenting). And under MCL 600.2301, an amendment is
allowed “ ‘at any time’ before judgment is rendered.” Id. at 568, quoting
MCL 600.2301; see, also, Roberts v Mecosta Co Gen Hosp, 466 Mich 57,
71-77 (2002) (M
ARILYN
K
ELLY
, J., dissenting). Further, the plain language
of MCL 600.5856(a) clearly states that the filing of a complaint tolls the
limitations period. Kirkaldy v Rim, 478 Mich 581, 586-587 (2007)
(C
AVANAGH
, J., concurring in the result). Thus, despite any alleged defects
in plaintiff’s notice of intent, in my view, the wrongful-death saving
period was tolled by the filing of the complaint, and plaintiff is entitled to
amend the notice of intent to meet the requirements of MCL 600.2912b.
Accordingly, I respectfully dissent from the majority’s order in this
case.
H
YDE
P
ARK
C
OOPERATIVE V
C
ITY OF
D
ETROIT
, No. 146116; Court of
Appeals No. 303143. Pursuant to MCR 7.302(H)(1), in lieu of granting
leave to appeal, we vacate footnote 5 of the Court of Appeals judgment
because the issue was not properly before the Court of Appeals nor
necessary to its decision. Moreover, we note that a claim for “money
damages” such as the one rejected by this Court in Lash v Traverse City,
479 Mich 180, 191-197 (2007), is not identical to an action for a refund of
an allegedly unlawful exaction. See, e.g., Beachlawn Building Corpora-
tion v City of St. Clair Shores, 370 Mich 128 (1963); Bolt v City of
Lansing, 459 Mich 152 (1998). In all other respects, leave to appeal is
denied, because we are not persuaded that the remaining questions
presented should be reviewed by this Court.
Leave to Appeal Denied April 26, 2013:
R
OACH V
GMAC M
ORTGAGE
, LLC, No. 146966; Court of Appeals No.
313255.
Reconsideration Denied April 26, 2013:
C
HAKKOUR V
C
HAKKOUR
, No. 146627; Court of Appeals No.
309854. Leave to appeal denied at 493 Mich 946.
966 493 M
ICHIGAN
R
EPORTS
Summary Disposition April 29, 2013:
P
EOPLE V
P
OINTER
, No. 146284; Court of Appeals No. 302795. Pursu-
ant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we vacate the
judgment of the Court of Appeals and remand this case to the Court of
Appeals for reconsideration in light of Evans v Michigan, 568 US ___; ___
S Ct ___; ___ L Ed 2d ___; 2013 WL 610197; 2013 US LEXIS 1614
(February 20, 2013).
Leave to Appeal Denied April 29, 2013:
C
ROMER V
W
ARDEN
,B
ARAGA
C
ORRECTIONAL
F
ACILITY
, No. 144257; Court of
Appeals No. 304267.
P
EOPLE V
R
AYMOND
H
ARRIS
, No. 144763; Court of Appeals No. 306725.
P
EOPLE V
M
C
C
RAY
, No. 145292; Court of Appeals No. 309912.
P
EOPLE V
C
ANNON
, No. 145316; Court of Appeals No. 306256.
7800 W O
UTER
R
OAD
H
OLDING
,LLCvC
OLLEGE
P
ARK
P
ARTNERS
, LLC, No.
145628; Court of Appeals No. 303182.
P
EOPLE V
D
ELPIANO
, No. 145866; Court of Appeals No. 304037.
P
EOPLE V
E
RIC
A
NDERSON
, No. 145966; Court of Appeals No. 301666.
P
EOPLE V
M
ERRITT
, No. 145968; Court of Appeals No. 307260.
P
EOPLE V
V
ERNICE
R
OBINSON
, No. 145981; Court of Appeals No. 309209.
P
EOPLE V
D
EMETRIC
M
C
G
OWAN
, No. 145987; Court of Appeals No.
308520.
P
EOPLE V
P
RICE
, No. 146005; Court of Appeals No. 309072.
P
EOPLE V
M
C
L
EAN
, No. 146010; Court of Appeals No. 308844.
P
EOPLE V
W
ICKER
, No. 146015; Court of Appeals No. 309191.
P
EOPLE V
J
AMAL
T
HOMAS
, No. 146018; Court of Appeals No. 309670.
P
EOPLE V
A
NTHONY
J
ONES
, No. 146019; Court of Appeals No. 308515.
P
EOPLE V
C
ALVIN
M
ARSHALL
, No. 146020; Court of Appeals No. 311536.
P
EOPLE V
M
C
C
ONNELL
, No. 146022; Court of Appeals No. 309052.
P
EOPLE V
O
RICK
, No. 146023; Court of Appeals No. 308580.
P
EOPLE V
N
AYVON
H
ILL
, No. 146025; Court of Appeals No. 308704.
P
EOPLE V
D
AMON
B
ENTLEY
, No. 146029; Court of Appeals No. 309054.
P
EOPLE V
S
EEGARS
, No. 146040; Court of Appeals No. 307671.
P
EOPLE V
S
TURGESS
, No. 146070; Court of Appeals No. 311919.
O
RDERS IN
C
ASES
967
P
EOPLE V
C
AVIN
, No.146075; Court of Appeals No. 312206.
P
EOPLE V
M
ARTY
M
ILLER
, No. 146076; Court of Appeals No. 311574.
P
EOPLE V
A
LLISON
, No. 146078; Court of Appeals No. 309684.
P
EOPLE V
B
URRELL
, No. 146079; Court of Appeals No. 308560.
L
OUTTS V
L
OUTTS
, No. 146100; reported below: 298 Mich App 21.
A
UGUST V
A
UGUST
, No. 146103; Court of Appeals No. 305768.
P
EOPLE V
J
ERRY
L
EWIS
, No. 146112; Court of Appeals No. 311983.
P
EOPLE V
R
USS
, No. 146142; Court of Appeals No. 307961.
P
EOPLE V
H
ERBERT
, No. 146143; Court of Appeals No. 309181.
P
EOPLE V
S
HAWN
Y
OUNG
, No. 146146; Court of Appeals No. 311116.
P
EOPLE V
P
OOLE
, No. 146159; Court of Appeals No. 309508.
P
EOPLE V
T
OMLINSON
, No. 146166; Court of Appeals No. 309923.
P
EOPLE V
W
ILLIAM
H
ILL
, No. 146167; Court of Appeals No. 309959.
P
EOPLE V
W
ELLONS
, No. 146182; Court of Appeals No. 311302.
CCXLS, LLC v D
EPARTMENT OF
T
REASURY
, No. 146198; Court of Appeals
No. 297902.
P
EOPLE V
F
REDERICK
H
ARRIS
, No. 146245; Court of Appeals No. 304521.
P
EOPLE V
S
AGE
L
EWIS
, No. 146250; Court of Appeals No. 304535.
P
EOPLE V
R
OBERT
H
ALL
, No. 146253; Court of Appeals No. 306265.
P
EOPLE V
R
IVNACK
, No. 146262; Court of Appeals No. 304705.
P
EOPLE V
D
AVID
T
URNER
, No. 146268; Court of Appeals No. 307101.
P
EOPLE V
B
ELTOWSKI
, No. 146272; Court of Appeals No. 304254.
P
EOPLE V
S
ZYMKOWKIAK
, No. 146276; Court of Appeals No. 310939.
S
TANSKY V
G
WINN
A
REA
C
OMMUNITY
S
CHOOLS
, No. 146287; Court of
Appeals No. 305287.
P
EOPLE V
G
LYNN
M
ILLS
, No. 146292; Court of Appeals No. 303870.
P
EOPLE V
G
ERALD
S
IMS
, No. 146293; Court of Appeals No. 298696.
P
EOPLE V
A
ARON
H
AYNES
, No. 146294; Court of Appeals No. 307844.
P
EOPLE V
D
ONNA
B
ROWN
, No. 146322; Court of Appeals No. 306228.
P
EOPLE V
C
ULHANE
, No. 146324; Court of Appeals No. 312519.
P
EOPLE V
R
EADOUS
, No. 146332; Court of Appeals No. 304765.
968 493 M
ICHIGAN
R
EPORTS
P
EOPLE V
G
OIKE
, No. 146351; Court of Appeals No. 312363.
P
EOPLE V
M
ADGE
M
ATTHEWS
, No. 146356; Court of Appeals No. 304215.
P
EOPLE V
W
ILFORD
, No. 146359; Court of Appeals No. 303028.
P
EOPLE V
D
E
M
ARCUS
C
URRY
, No. 146400; Court of Appeals No. 312817.
P
EOPLE V
H
OLDEN
, No. 146401; Court of Appeals No. 304364.
R
ICE V
R
ICE
, Nos. 146402, 146403, and 146404; Court of Appeals Nos.
295631, 295634, and 300271.
P
EOPLE V
P
EARSON
, No. 146406; Court of Appeals No. 308354.
P
EOPLE V
P
RESTON
, No. 146414; Court of Appeals No. 298796.
P
EOPLE V
L
ESTER
, Nos. 146417 and 146418; Court of Appeals Nos.
313108 and 313141.
P
EOPLE V
S
PENCER
A
LLEN
, No. 146419; Court of Appeals No. 312259.
P
EOPLE V
D
EANDRE
H
AWKINS
, No. 146420; Court of Appeals No. 305965.
H
ODGES V
H
ENRY
F
ORD
H
OSPITAL
, No. 146429; Court of Appeals No.
309648.
P
EOPLE V
M
ICHAEL
T
AYLOR
, No. 146431; Court of Appeals No. 308463.
P
EOPLE V
B
ASS
, No. 146437; Court of Appeals No. 311812.
P
EOPLE V
M
ENDE
, No. 146438; Court of Appeals No. 305558.
P
EOPLE V
S
EAN
R
OGERS
, No. 146443; Court of Appeals No. 310689.
EMC M
ORTGAGE
C
ORPORATION V
A
MERICAN
F
ELLOWSHIP
M
UTUAL
I
NSURANCE
C
OMPANY
, No. 146444; Court of Appeals No. 298518.
P
EOPLE V
D
ANIEL
P
ARRISH
, No. 146446; Court of Appeals No. 303746.
D
AVIS V
G
ULLECKSON
, No. 146448; Court of Appeals No. 307014.
P
EOPLE V
K
YMON
H
ARRIS
, No. 146450; Court of Appeals No. 307926.
H
AMOOD V
S
TANOWSKI
, No. 146463; Court of Appeals No. 304559.
P
EOPLE V
T
ERRISE
J
OHNSON
, No. 146465; Court of Appeals No. 309416.
H
OLCOMB V
K
ELLY
S
ERVICES
,I
NC
, No. 146471; Court of Appeals No.
313373.
P
EOPLE V
G
ONZALEZ
, No. 146481; Court of Appeals No. 305628.
P
EOPLE V
P
INKNEY
, No. 146482; Court of Appeals No. 300214.
P
EOPLE V
J
USTIN
W
ILLIAMS
, No. 146484; Court of Appeals No. 305934.
P
EOPLE V
T
REVIS
J
OHNSON
, No. 146485; Court of Appeals No. 312950.
P
EOPLE V
B
RYANT
B
ENTLEY
, No. 146486; Court of Appeals No. 308069.
O
RDERS IN
C
ASES
969
P
EOPLE V
P
ENFIELD
, No. 146488; Court of Appeals No. 312994.
D
ETARY V
A
DVANTAGE
H
EALTH
P
HYSICIANS
, PC, No. 146491; Court of
Appeals No. 308179.
P
EOPLE V
H
ENDRICKS
, No. 146492; Court of Appeals No. 307636.
P
EOPLE V
S
TOKES
, No. 146511; Court of Appeals No. 306909.
W
ENDY
S
ABO
&A
SSOCIATES
,I
NC V
A
MERICAN
A
SSOCIATES
,I
NC
, No. 146514;
Court of Appeals No. 305757.
H
ARKNESS V
B
RICKMAN
, No. 146516; Court of Appeals No. 305769.
B
ROWN V
H
OME
-O
WNERS
I
NSURANCE
C
OMPANY
, No. 146517; reported
below: 298 Mich App 678.
P
EOPLE V
M
AYES
, No. 146519; Court of Appeals No. 309392.
B
ELL V
D
EPARTMENT OF
H
UMAN
S
ERVICES
, No. 146522; Court of Appeals
No. 306916.
P
EOPLE V
S
TEPHEN
V
AUGHN
, No. 146526; Court of Appeals No. 310860.
P
EOPLE V
Q
UICK
, No. 146529; Court of Appeals No. 306030.
P
EOPLE V
G
ERALD
H
UDSON
, No. 146530; Court of Appeals No. 302876.
P
EOPLE V
J
OSEPH
D
ELVERT
F
REEMAN
, No. 146535; Court of Appeals No.
309971.
P
EOPLE V
T
HEODORE
M
ILLER
, No. 146536; Court of Appeals No. 305763.
P
EOPLE V
M
ETZELBURG
, No. 146540; Court of Appeals No. 306397.
NWD, LLC v C
HARTER
T
OWNSHIP OF
R
OYAL
O
AK
, No. 146542; Court of
Appeals No. 309599.
P
EOPLE V
B
ARD
, No. 146544; Court of Appeals No. 313277.
P
EOPLE V
R
ANSOM
No. 146548; Court of Appeals No. 306788.
P
EOPLE V
S
AVANTE
J
OHNSON
, No. 146553; Court of Appeals No. 313094.
P
EOPLE V
D
EVI
S
MITH
, No. 146554; Court of Appeals No. 306574.
P
EOPLE V
V
ANCE
, No. 146558; Court of Appeals No. 303481.
P
EOPLE V
G
REGORY
H
ARRIS
, No. 146559; Court of Appeals No. 306497.
P
EOPLE V
J
EFFREY
B
ARNES
, No. 146561; Court of Appeals No. 307372.
P
EOPLE V
T
AMERRA
W
ASHINGTON
, No. 146562; Court of Appeals No.
305604.
O
BRZUT V
P
OLISH
D
ELI
&B
AKERY
,I
NC
, No. 146572; Court of Appeals No.
306382.
P
EOPLE V
T
ODD
J
OHNSON
, No. 146582; reported below: 298 Mich App
128.
970 493 M
ICHIGAN
R
EPORTS
P
ITSCH
R
ECYCLING
&D
ISPOSAL
,I
NC V
I
ONIA
C
OUNTY
, No. 146593; Court of
Appeals No. 302163.
B
REARD V
E
MPLOYMENT
G
ROUP
,I
NC
, No. 146601; Court of Appeals No.
310342.
P
ERKOVIC V
H
UDSON
I
NSURANCE
C
OMPANY
, No. 146608; Court of Appeals
No. 302868.
P
EOPLE V
R
UH
, No. 146609; Court of Appeals No. 303409.
P
EOPLE V
M
OATS
, No. 146649; Court of Appeals No. 313219.
P
EOPLE V
H
ILTON
, No. 146650; Court of Appeals No. 305059.
P
EOPLE V
S
TANTON
, No. 146651; Court of Appeals No. 305085.
M
C
F
ADDEN V
AO S
MITH
, No. 146653; Court of Appeals No. 311730.
P
EOPLE V
D
ETRICK
D
AVIS
, No. 146659; Court of Appeals No. 309368.
In re A
PPLICATION OF
C
ONSUMERS
E
NERGY
C
OMPANY TO
I
NCREASE
R
ATES
, No.
146668; Court of Appeals No. 296640.
BP1, LLC v DDR C
ORPORATION
, No. 146773; Court of Appeals No.
312579.
P
EOPLE V
M
ARCAEL
D
IXON
, No. 146909; Court of Appeals No. 311060.
Superintending Control Denied April 29, 2013:
B
URGESS V
A
TTORNEY
G
RIEVANCE
C
OMMISSION
, No. 146539.
Reconsideration Denied April 29, 2013:
P
EOPLE V
N
IEMIEC
, No. 142431; Court of Appeals No. 298514. Leave to
appeal denied at 493 Mich 890.
V
IVIANO
, J., did not participate because he was the Chief Judge of the
16th Judicial Circuit Court before his appointment to this Court.
G
RIEVANCE
A
DMINISTRATOR V
L
YGIZOS
, No. 145448. Leave to appeal
denied at 493 Mich 892.
P
EOPLE V
L
LOYD
, No. 145565; Court of Appeals No. 307732. Leave to
appeal denied at 493 Mich 894.
P
EOPLE V
D
ANTZLER
, No. 145738; Court of Appeals No. 303252. Leave
to appeal denied at 493 Mich 918.
P
EOPLE V
L
A
C
ASSE
, No. 145792; Court of Appeals No. 309017. Leave to
appeal denied at 493 Mich 919.
P
EOPLE V
W
ILLIAM
H
ALL
, No. 145858; Court of Appeals No.
309507. Leave to appeal denied at 493 Mich 898.
O
RDERS IN
C
ASES
971
P
EOPLE V
R
AMSEY
, No. 145859; Court of Appeals No. 308813. Leave to
appeal denied at 493 Mich 919.
P
EOPLE V
H
OBBS
, No. 145888; Court of Appeals No. 306002. Leave to
appeal denied at 493 Mich 920.
Summary Disposition May 1, 2013:
L
ANGTON V
S
TATE OF
M
ICHIGAN
, No. 144722; Court of Appeals No.
300639. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we reverse the judgment of the Court of Appeals and reinstate the
September 29, 2010, order of the Court of Claims denying in part the
defendant’s motion for summary disposition. The Court of Appeals
clearly erred in applying principles of direct liability to grant summary
disposition to the defendant on the plaintiff’s vicarious liability claim.
“Vicarious liability is based on a relationship between the parties,
irrespective of participation, either by act or omission, of the one
vicariously liable, under which it has been determined as a matter of
policy that one person should be liable for the act of the other.”
Theophelis v Lansing General Hospital, 430 Mich 473, 483 (1988)
(internal quotation and citation omitted). Because the theory of vicarious
liability is not concerned with the acts or omissions of the principal, the
Court of Appeals erred in holding that the defendant was entitled to
summary disposition because it did not have a duty to intervene.
S
ABATOS V
C
HERRYWOOD
L
ODGE
,I
NC
, No. 146251; Court of Appeals No.
302644. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we vacate the judgment of the Court of Appeals and we remand
this case to the Court of Appeals as on reconsideration granted in light of
Hoffner v Lanctoe, 492 Mich 450 (2012).
C
AVANAGH
, J., would deny leave to appeal.
P
EOPLE V
M
ARK
P
ORTER
, No. 146381; Court of Appeals No.
298474. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to
appeal, we remand this case to the Court of Appeals for consideration of
the issue raised by the defendant but not addressed by that court during
its initial review of this case: whether the defendant was denied effective
assistance of counsel because his trial counsel failed to object to the
circuit court’s unjustified shackling of the defendant during trial. See
Deck v Missouri, 544 US 622, 629; 125 S Ct 2007; 161 L Ed 2d 953 (2005).
In all other respects, leave to appeal is denied, because we are not
persuaded that the remaining questions presented should be reviewed by
this Court.
Leave to Appeal Granted May 1, 2013:
P
EOPLE V
A
LFONZO
J
OHNSON
, No. 145477; Court of Appeals No.
304273. The parties shall address: (1) whether the amendment of the
supplemental notice of intent to seek to enhance the defendant’s sen-
tence was contrary to MCL 769.13, and, if so, to what remedy, if any, the
defendant is entitled; and (2) whether, if the original notice was defective
972 493 M
ICHIGAN
R
EPORTS
and no order was entered allowing the notice to be amended, the trial
court had the authority to sentence the defendant as a fourth habitual
offender.
We further order the Monroe Circuit Court, in accordance with Admin-
istrative Order 2003-03, to determine whether the defendant is indigent
and, if so, to appoint counsel to represent the defendant in this Court.
The Prosecuting Attorneys Association of Michigan, the Criminal
Defense Attorneys Association of Michigan, and the Criminal Law
Section of the State Bar of Michigan are invited to file briefs amicus
curiae. Other persons or groups interested in the determination of the
issues presented in this case may move the Court for permission to file
briefs amicus curiae.
Order Granting Oral Argument in Case Pending on Application for Leave
to Appeal Entered May 1, 2013:
R
AMBIN V
A
LLSTATE
I
NSURANCE
C
OMPANY
, No. 146256; reported below:
297 Mich App 679. We direct the Clerk to schedule oral argument on
whether to grant the application or take other action. MCR 7.302(H)(1).
At oral argument, the parties shall address whether the plaintiff took the
motorcycle on which he was injured “unlawfully” within the meaning of
MCL 500.3113(a), and specifically, whether “taken unlawfully” under
MCL 500.3113(a) requires the “person...using [the] motor vehicle or
motorcycle” to know that such use has not been authorized by the vehicle
or motorcycle owner, see MCL 750.414; People v Laur, 128 Mich App 453
(1983), and, if so, whether the Court of Appeals erred in concluding that
plaintiff lacked such knowledge as a matter of law given the circumstan-
tial evidence presented in this case. The parties may file supplemental
briefs within 42 days of the date of this order, but they should not submit
mere restatements of their application papers.
Leave to Appeal Denied May 1, 2013:
S
TATE
R
EPRESENTATIVE
R
ICHARD
H
AMMEL V
S
PEAKER OF THE
H
OUSE OF
R
EPRESENTATIVES
, No. 145916; reported below: 297 Mich App 641.
C
OUNTY OF
M
ASON V
I
NDIAN
S
UMMER
C
OOPERATIVE
,I
NC
, No. 145921; Court
of Appeals No. 301952.
M
ICHIGAN
O
NE
F
UNDING
,LLCvM
C
L
EAN
, No. 146102; Court of Appeals
No. 303799.
M
ITCHELL V
M
C
N
EILUS
T
RUCK AND
M
ANUFACTURING
,I
NC
, No. 146264;
Court of Appeals No. 304124.
P
EOPLE V
B
RIAN
R
OBERTS
, No. 146311; Court of Appeals No. 301524.
P
EOPLE V
R
ITCHIE
, No. 146313; Court of Appeals No. 310911.
P
EOPLE V
S
HAKEISHA
H
ALL
, No. 146340; Court of Appeals No. 309540.
P
EOPLE V
R
ONALD
L
EE
A
LLEN
, No. 146385; Court of Appeals No. 306298.
O
RDERS IN
C
ASES
973
S
PEELMAN V
C
ITY OF
L
ANSING
, No. 146390; Court of Appeals No. 306532.
B
ELL V
D
EPARTMENT OF
N
ATURAL
R
ESOURCES
, No. 146546; Court of
Appeals No. 310701.
A
TTORNEY
G
ENERAL V
C
IVIL
S
ERVICE
C
OMMISSION
, No. 146616; Court of
Appeals No. 306685.
In re S
HOLBERG
E
STATE
, No. 146721; Court of Appeals No. 307308.
Order Entered May 1, 2013:
In re H
ONORABLE
K
ENNETH
DP
OST
, No. 145532. On order of the Court,
the motion to strike the respondent’s acceptance of the recommendation
is denied. The Judicial Tenure Commission having issued a Decision and
Recommendation, and the respondent 58th District Court Judge Ken-
neth D. Post having not filed a petition to reject or modify the Commis-
sion’s Decision and Recommendation, we accept the recommendation of
the Judicial Tenure Commission and order that the respondent be
publicly censured and suspended for 30 days without pay, effective 21
days from the date of this order.
As we conduct our de novo review of this matter, we are mindful of the
standards set forth in In re Brown, 461 Mich 1291, 1292-1293 (2000):
[E]verything else being equal:
(1) misconduct that is part of a pattern or practice is more serious
than an isolated instance of misconduct;
(2) misconduct on the bench is usually more serious than the same
misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration of
justice is more serious than misconduct that is prejudicial only to
the appearance of propriety;
(4) misconduct that does not implicate the actual administration of
justice, or its appearance of impropriety, is less serious than miscon-
duct that does;
(5) misconduct that occurs spontaneously is less serious than
misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice system to
discover the truth of what occurred in a legal controversy, or to
reach the most just result in such a case, is more serious than
misconduct that merely delays such discovery;
(7) misconduct that involves the unequal application of justice on
the basis of such considerations as race, color, ethnic background,
gender, or religion are more serious than breaches of justice that
do not disparage the integrity of the system on the basis of a class
of citizenship.
974 493 M
ICHIGAN
R
EPORTS
The JTC should consider these and other appropriate standards that
it may develop in its expertise, when it offers its recommendations.
In this case those standards are being applied to the findings of the
Judicial Tenure Commission. The Commission adopted the stipulations
of fact agreed to by respondent and the examiner. We adopt the following
findings of the Commission as our own:
1. Respondent is, and at all material times was, a judge of the
58th District Court in Hudsonville, Michigan, where he has served
continuously since January 1, 1980.
2. As a judge, he is subject to all the duties and responsibilities
imposed on judges by the Michigan Supreme Court, and he is subject
to the standards for discipline set forth in MCR 9.104 and MCR 9.205.
3. Formal Complaint No. 90 (“Formal Complaint”) is currently
pending before the Michigan Judicial Tenure Commission (“the
Commission”), with a trial date scheduled for December 17, 2012
before the appointed master, Judge John Pikkarainen (retired).
4. In lieu of a trial and to eliminate the need for a master to
issue findings, the Respondent and Examiner agree to the stipu-
lations below, as well as to the admissibility of the transcripts
attached hereto.
5. The attached transcript Exhibit A (the “Official Tran-
script”) entitled “People of the State of Michigan vs. Ethan
Forrester Whale, 58th District Court (Ottawa County) Case No.
HU-11-47997-SM,[”] before the Hon. Kenneth D. Post, District
Judge, on Friday, December 2, 2011 is a complete and accurate
transcription of the proceedings.
6. Respondent also admits that Exhibit B is a copy of a
transcript that was prepared subsequent to the hearing identified
in Exhibit A by the court reporter for 58th District Court Chief
Judge Bradley Knoll after Respondent found the defendant’s
attorney Scott Millard in contempt of court. Respondent does not
challenge the accuracy of either transcript A or B.
7. Respondent admits that he knew that by sentencing Mr.
Millard to jail for contempt that he would be remanding Mr.
Millard to the physical custody of the Ottawa County Sheriff’s
Department. Respondent did not provide directions to the Ottawa
County Sheriff’s Department as to how or in what manner they
should transport Mr. Millard.
8. If called as a witness, Mr. Millard would testify that the
Ottawa County Sheriff’s Department took him into custody, hand-
cuffing his hands behind his back, and transporting him to, and
booking him in, the Ottawa County Jail. Later in the morning of
December 2, 2011, when he was transported to the 20th Circuit
Court before Judge Edward Post (no relation to Respondent) on a
motion for emergency stay, Mr. Millard was handcuffed and placed
in leg shackles, both of which [were] then attached to a “belly
chain” around his waist. Judge Edward Post reversed Mr. Millard’s
contempt of court conviction.
O
RDERS IN
C
ASES
975
9. The parties stipulate that the Commission may review Respon-
dent’s answer to the Commission’s request for comments and any
attachments and materials he submitted in response to the matter
and Respondent’s Verified Answers to Formal Complaint No[.] 90.
10. The Commission may make findings of fact based on these
stipulations and the transcript(s), as well as draw reasonable
inferences from them. The Commission may also make conclu-
sions of law and a recommended sanction regarding the judicial
misconduct, if any, which may have occurred.
11. Respondent admits that some of his comments directed to
and about Mr. Millard were improper and eroded public confidence
in the judiciary in violation of the Code of Judicial Conduct 2A.
Respondent also admits that his failing to be patient and dignified
with Mr. Millard was contrary to the Code of Judicial Conduct 3A,
thereby creating the appearance of impropriety.
12. Respondent contends that his actions did not violate Ethan
Whale’s Fifth Amendment right in the United States Constitution
or Article [1], Section 17 or the Michigan State Constitution nor
did Respondent violate Mr. Whale’s Sixth Amendment right in the
United States Constitution or Article [1], Section 20 of the
Michigan State Constitution of the defendant in the underlying
criminal matter. Respondent may include an affidavit on this issue
in his brief to the Commission.
13. These stipulations and the transcript(s) shall serve in lieu of
a master’s report. The parties may proceed directly to argument
before the Commission, as in MCR 9.216, as if the master had
submitted a report containing the facts set forth herein. The parties
may argue regarding the application of the law to the stipulated facts,
but they may not argue against the stipulated facts. The parties may
also argue about the inferences and conclusions that may be drawn
from those facts and as to the appropriate sanction, if any.
14. The Commission may issue a Decision and Recommenda-
tion and may append a copy of these stipulations and the tran-
script(s) to that decision. The Commission shall file its Decision
and Recommendation with the Supreme Court as a public docu-
ment, pursuant to MCR 9.220. The parties further stipulate that
this is not a consent resolution as contemplated by MCR 9.220(C).
15. The parties agree that these stipulations cover only the
matters, cases or issues contained in the Formal Complaint and the
substantive and procedural matters in them, and nothing herein
precludes the Commission from investigating or pursuing other
grievances that may be filed that are unrelated to the Formal
Complaint.
16. Respondent acknowledges that he is entering these stipula-
tions freely and voluntarily, that it is his own choice to do so, and that
he is doing so in consultation with counsel. [Emphasis in original.]
The standards set forth in Brown are also being applied to the following
conclusions of the Judicial Tenure Commission, which we adopt as our own:
976 493 M
ICHIGAN
R
EPORTS
Respondent has admitted, and the Stipulations and attached
transcripts show by a preponderance of the evidence, that Respon-
dent breached the standards of judicial conduct and is responsible
for the following:
a. Irresponsible or improper conduct that eroded public confidence
in the judiciary, in violation of MCJC, Canon 2A; and
b. Failure to be patient, dignified, and courteous to litigants,
lawyers, and others with whom the judge deals in an official
capacity, in violation of MCJC, Canon 3A(3).
In addition, although not admitted by Respondent, the Stipu-
lations and attached transcripts show by a preponderance of the
evidence, that Respondent breached the standards of judicial
conduct and is responsible for the following:
a. Misconduct in office, as defined by the Michigan Constitution of
1963, as amended, Article 6, Section 30 and MCR 9.205;
b. Conduct clearly prejudicial to the administration of justice, as
defined by the Michigan Constitution of 1963, as amended, Article
6, Section 30 and MCR 9.205;
c. Conduct that is prejudicial to the proper administration of
justice, in violation of MCR 9.104(1);
d. Failure to establish, maintain, enforce, and personally observe
high standards of conduct so that the integrity and independence
of the judiciary may be preserved, contrary to MCJC, Canon 1.
e. Failure to be aware that the judicial system is for the benefit of the
litigant and the public, not the judiciary, contrary to MCJC, Canon 1.
f. Conduct involving impropriety and appearance of impropriety,
contrary to MCJC, Canon 2A;
g. Failure to be faithful to the law, contrary to MCJC, Canon 3A(1);
h. Failure to avoid a controversial tone or manner in addressing
counsel and failure to avoid the unnecessary interruption of
counsel during arguments, in violation of MCJC, Canon 3A(8);
i. Conduct that exposes the legal profession or the courts to obloquy,
contempt, censure, or reproach, contrary to MCR 9.104(2);
j. Conduct that is contrary to justice, ethics, honesty or good
morals, contrary to MCR 9.104(3);
k. Conduct that violates the standards or rules of professional
conduct adopted by the Supreme Court, contrary to MCR 9.104(4);
and
1. Conduct that violates MCL 600.1701, addressing contempt.
After reviewing the recommendation of the Judicial Tenure Commission,
the standards set forth in Brown, and the above findings and conclusions, we
order that the Honorable Kenneth D. Post be publicly censured and
suspended from judicial office without pay for 30 days, effective 21 days from
the date of this order. This order further stands as our public censure.
O
RDERS IN
C
ASES
977
978 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
979
980 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
981
982 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
983
984 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
985
986 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
987
988 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
989
990 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
991
992 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
993
994 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
995
996 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
997
998 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
999
1000 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
1001
1002 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
1003
1004 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
1005
1006 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
1007
1008 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
1009
1010 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
1011
1012 493 M
ICHIGAN
R
EPORTS
O
RDERS IN
C
ASES
1013
1014 493 M
ICHIGAN
R
EPORTS
Summary Disposition May 3, 2013:
P
EOPLE V
A
NDRE
H
UNTER
, No. 146210; Court of Appeals No. 297542. Pur-
suant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we reverse the
Wayne Circuit Court’s determination that the defendant’s attorney testified
credibly at the hearing held pursuant to People v Ginther, 390 Mich 436
(1973). To establish ineffective assistance of counsel, a defendant must
show: (1) that the attorney’s performance was not based on strategic
decisions, but was objectively unreasonable in light of prevailing profes-
sional norms; and (2) that, but for the attorney’s error, a different outcome
was reasonably probable. This is a mixed question of law and fact. Findings
of fact are reviewed for clear error; questions of law are reviewed de novo.
People v Armstrong, 490 Mich 281, 289-290 (2011). The trial court clearly
erred in finding that the defendant’s attorney was credible. We therefore
vacate those portions of the Court of Appeals opinion relying on the trial
court’s credibility determination to affirm the defendant’s conviction in the
face of his claims of ineffective assistance of counsel. We remand this case to
the Court of Appeals for reconsideration of the defendant’s ineffective
assistance claims in light of this order. In all other respects, leave to appeal
is denied, because we are not persuaded that the remaining questions
presented should be reviewed by this Court. We do not retain jurisdiction.
C
AVANAGH
, J., would grant leave to appeal.
Order Granting Oral Argument in Case Pending on Application for Leave
to Appeal Entered May 3, 2013:
P
EOPLE V
A
LAN
T
AYLOR
, No. 145491; Court of Appeals No. 295275. The
parties shall submit supplemental briefs within 42 days of the date of this
order addressing whether the trial court’s jury instructions expanded the
definition of “contiguous” beyond the reasonable scope of MCL
324.30301(1)(m)(i) and Mich Admin Code, R 281.921(1)(b)(ii), and, if so,
whether that expansion constituted an unforeseeable judicial enlarge-
ment of a criminal statute that deprived the defendant of due process.
P
EOPLE V
G
ARRISON
, No. 146626; Court of Appeals No. 307102. At oral
argument, the parties shall address whether the victims’ travel expenses
were properly included in the amount of restitution that the defendant
was ordered to pay. See MCL 780.766 and MCL 769.1a. The parties may
file supplemental briefs within 42 days of the date of this order, but they
should not submit mere restatements of their application papers.
The Prosecuting Attorneys Association of Michigan and the Criminal
Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other
persons or groups interested in the determination of the issue presented in
this case may move the Court for permission to file briefs amicus curiae.
Leave to Appeal Denied May 3, 2013:
F
ARMERS
I
NSURANCE
E
XCHANGE V
M
ICHIGAN
I
NSURANCE
C
OMPANY
, Nos.
144144, 144145, and 144159; Court of Appeals Nos. 298984 and
298985. Leave to appeal having been granted and the briefs and oral
O
RDERS IN
C
ASES
1015
arguments of the parties having been considered by the Court, we vacate
our order of May 23, 2012. The applications for leave to appeal the
October 18, 2011, judgment of the Court of Appeals are denied, because
we are no longer persuaded that the questions presented should be
reviewed by this Court.
V
IVIANO
, J., did not participate.
P
EOPLE V
S
AMS
, No. 146364; Court of Appeals No. 306443.
Order Entered May 3, 2013:
In re R
EQUEST FOR
A
DVISORY
O
PINION
R
EGARDING
C
ONSTITUTIONALITY OF
2012 PA 348
AND
2012 PA 349, No. 146595. On order of the Court, the
motion for leave to file brief amicus curiae is granted. The request by the
Governor for an advisory opinion on the constitutionality of 2012 PA 348
and 2012 PA 349 is considered. We invite the Michigan Solicitor General
to file a brief in this case within 35 days from the date of this order
expressing the views of the state of Michigan as to whether this Court
should grant the Governor’s request for an advisory opinion. Specifically,
we ask the Solicitor General to address: (1) why prompt resolution of the
constitutional question regarding application to the Civil Service Com-
mission is necessary to guide the State Employer in its fall contract
negotiations with civil service employees; (2) why this matter warrants
this Court’s present intervention when § 14(4) of 2012 PA 348 and § 10(6)
of 2012 PA 349 explicitly grant “exclusive original jurisdiction over any
action challenging the validity of [the pertinent subsections]” in the
Court of Appeals, which “shall hear the action in an expedited manner;”
(3) given that there are adversarial proceedings already pending in
several courts, and in light of the non-precedential nature of an advisory
opinion, see Anway v Grand Rapids R Co, 211 Mich 592, 603 (1920);
Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 460
n 1 (1973), how this Court’s intervention in the absence of an actual case
and controversy would necessarily aid in resolution of the issues pre-
sented rather than produce confusion and delay; and (4) the value of an
advisory opinion from this Court addressing federal equal protection
issues since federal courts are not bound by state court determinations on
federal constitutional issues, see Woods v Holy Cross Hosp, 591 F2d 1164,
1171-1172 (CA 5, 1979).
The request by the Governor for an advisory opinion remains pend-
ing.
C
AVANAGH
,J.(dissenting). I do not join the majority’s decision to invite
the Solicitor General to file a brief in this matter. I believe that this Court
is well equipped to decide whether, under the circumstances, it would be
an appropriate exercise of discretion to grant the Governor’s request for
an advisory opinion without inviting comment from the Solicitor General
regarding the “views of the state of Michigan.” Because the Governor’s
request remains pending, I do not believe that the majority’s order
should in any way affect pending adversarial proceedings, including those
that are to be heard in an expedited manner.
1016 493 M
ICHIGAN
R
EPORTS
M
ARKMAN
,J.(dissenting). I would grant without further delay the
Governor’s request, submitted on January 28, 2013, for an advisory
opinion addressing the constitutionality of specific provisions of Public
Acts 348 and 349 of 2012 (the “right-to-work” laws) and therefore
respectfully dissent. In my judgment, (1) the request for such an advisory
opinion constitutes a reasonable exercise of the constitutional authority
of the chief executive of this state; (2) the issuance of an advisory opinion
would constitute a reasonable exercise of the constitutional authority of
this Court; (3) an advisory opinion would affirm this Court’s role as the
ultimate arbiter of Michigan law; (4) an advisory opinion would, if the
right-to-work laws are ultimately determined to be constitutional, facili-
tate their orderly implementation; (5) an advisory opinion would mini-
mize the possibility of protracted litigation concerning the validity of the
right-to-work laws; and (6) an advisory opinion would demonstrate
comity by this Court with a coordinate branch of state government.
The Michigan Constitution states:
Either house of the legislature or the governor may request the
opinion of the supreme court on important questions of law upon
solemn occasions as to the constitutionality of legislation after it has
been enacted into law but before its effective date. [Const 1963, art 3,
§ 8.]
Considering that this Court possesses this authority, it is difficult to
imagine an instance in which its exercise would be more necessary and
proper than in the present case. The right-to-work laws, proponents and
opponents agree, will have a substantial effect upon both employees and
employers, public and private, and upon the economy, throughout this
state, and these statutes have been the subject of substantial legal
dispute and controversy.
If there is an obvious purpose behind the advisory opinion clause of
the Constitution, it is to facilitate the resolution of legal disputes of
precisely the sort raised by this case. The Governor has sought to
expedite the process by which a bill becomes a law and a law becomes
genuine public policy. I would accommodate without further delay his
request for an advisory opinion not because this is or should be a
compliant court, but because it is and should be a responsible court,
ensuring that the constitutional processes of government are respected
and that the people’s will, as expressed both in the laws enacted by their
representatives and in their constitutions, is faithfully upheld. The
Governor’s request constitutes a rational response to a judicial culture in
which the decision-making of courts has been extended into an increas-
ingly broad array of public policy areas. By granting his request, this
Court would expedite the process of judicial review, and thereby expedite
the process by which some measure of certainty can be brought to laws
having a broad and significant economic effect upon this state.
The Governor asserts in his letter seeking an advisory opinion that
the state’s current collective-bargaining agreements expire on December
31, 2013, that negotiations regarding new contracts will likely begin this
summer, and that, in his judgment, it is imperative for the negotiating
parties to “know definitively whether the new contracts must comply
with Public Act 349 before those negotiations commence....”Though
O
RDERS IN
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1017
the Governor speaks only to the effects of uncertainty on the public
sector, the impact on the private sector will likely be equally significant
considering that Michigan is one of the most heavily unionized states in
the country. Thus, whatever the ultimate decision of this Court concern-
ing the constitutionality of the right-to-work laws, I would act in
response to the Governor’s exercise of his constitutional authority, and in
the exercise of this Court’s own authority, to promote certainty and
clarity with regard to these laws. This undoubtedly is one of those
“solemn occasions” contemplated by our Constitution for invocation of
the advisory opinion process.
Additionally, the provisions of the right-to-work laws granting the
Court of Appeals exclusive original jurisdiction over actions challenging
the validity of certain core provisions of the laws (vis-á-vis our trial
courts, not this Court, compare Const 1963, art 6, § 13 with Const 1963,
art 3, § 8) have utterly no effect upon the prerogative of this Court to
issue advisory opinions. To the contrary, I see these provisions as further
evidence of the importance and time-sensitivity of the issues surrounding
the implementation and administration of these laws, and of the Legis-
lature’s and the Governor’s desire to reduce to the extent possible levels
of uncertainty in these regards. Through the advisory-opinion process,
the Governor can ensure that the issues with which he is concerned can
be considered with expedition by this Court, as opposed to the issues with
which private litigants are concerned being considered by the Court of
Appeals and subject to further layers of appeal.
It also appears that all four issues raised by the Governor pose
relatively abstract questions of law that this Court would readily be able
to address without the development of a factual record in the lower
courts. While the usual prerequisite for this Court’s exercise of jurisdic-
tion is the presence of an actual case or controversy, the advisory opinion
clause of our Constitution establishes an exception to this requirement,
and the questions posed in the Governor’s request are questions that are
readily susceptible to resolution by this Court absent a specific case or
controversy.
Perhaps most importantly, the Governor’s request must be viewed
against the backdrop of a policy-making process of which it has become
an increasingly ubiquitous and routine part that controversial pieces of
legislation, such as the right-to-work laws, must, following legislative and
executive approval, now make a third stop—at the judiciary—before they
are viewed as fully legitimate and enforceable public policies. The
advisory opinion enables this Court, at the request of either the executive
or the legislative branches, to promptly resolve a dispute that otherwise
might languish within the judiciary. In this regard, two recent illustra-
tions come to mind of what increasingly occurs when controversial
legislation morphs into litigation, in both instances arising within the
federal judiciary: an abortion statute enacted by our state Legislature
enjoined for more than five years and a constitutional amendment
enacted by a vote of the people barring race-based affirmative action now
delayed for what has been in excess of seven years. If we must suffer
‘government by judiciary,’ at least let this be done with expedition. It is
understandable that the Governor might be concerned about a similar
fate befalling the right-to-work laws, and he and the people of this state
1018 493 M
ICHIGAN
R
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are entitled to a resolution of the laws’ constitutionality at some point
before their enactment has become a distant and dim memory.
Further militating in favor of a response to the request for an advisory
opinion is that the Michigan Constitution’s system of separated powers
not only requires that each branch of state government in its relationship
with the others assert and defend its prerogatives when necessary, but
compels that each also demonstrate comity with the others whenever
possible. It is not as if requests for advisory opinions have been made
frequently or frivolously by the Governor or the Legislature, as it appears
that the present request is only the fifth this Court has received over the
past decade. On the rare occasions on which requests are made, this
Court should act reasonably to accommodate them. Demonstrating
respect for the other branches of government burnishes the reputations
of both this Court and state government as a whole. For similar reasons,
I have previously favored accommodating reasonable requests for advi-
sory opinions by both the Governor and the Legislature and for answers
to certified questions sought by the federal judiciary.
All additional delays aside, I am separately troubled by the Court’s
unprecedented action in requesting that the Solicitor General weigh into
the advisory-opinion process at this stage. Our constitution invests the
Governor with the authority to seek an advisory opinion, and it invests
this Court with the authority to grant (or to not grant) such a request. As
much as I have long held in high regard the Office of the Solicitor General
(and the Office of the Attorney General under whose auspices the
Solicitor General carries out its duties), I would not introduce a second
office of the executive branch to opine upon the merits of the exercise of
authority by another office of that branch. The question now before this
Court does not pertain to the substantive merits of the issues presented
by the Governor, but only whether these should be addressed and
answered by this Court. If this Court ultimately grants the request for an
advisory opinion, the Office of the Solicitor General is well situated to
represent either, or perhaps both, sides in addressing the legal merits of
the questions posed; however, it has no special standing, nor any
constitutional status, as does the Governor, to assert that the circum-
stances of this state pose a sufficiently “solemn occasion” as to which this
Court’s advisory opinion authority should be exercised. Rather, the
advisory opinion process at this stage is best understood to operate in
reliance upon the Governor’s judgment and this Court’s assessment of
that judgment alone.
Finally, I am persuaded that the Governor’s request for an advisory
opinion should be granted without further delay on the basis of the
following considerations: (1) multiple lawsuits, brought by both support-
ers and opponents of the right-to-work laws, and by both public and
private parties, are pending in federal court, state circuit courts, and the
Court of Appeals; by postponing a decision on the present request, only
this Court—the one judicial body directly responsible to the people of this
state as their court of last resort in construing Michigan laws—will be
uninvolved at this critical juncture in addressing the legal merits of the
newly enacted right-to-work laws; (2) delays in the implementation of
these laws have seemingly emerged as a strategy or tactic on the part of
O
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1019
some opponents of the right-to-work laws; on behalf of himself and the
representative majority in this state, the Governor is entitled to resist
such strategies and tactics and this Court need not be oblivious to what
is transpiring in assessing the merits of an advisory opinion; and (3)
federal courts have increasingly undertaken to decide issues that were
once viewed as coming within the primary purview of the state judiciary,
and this Court acts properly to protect its prerogatives to the best of its
ability by addressing matters involving Michigan law. There is little
doubt in my mind that by our not acting promptly in addressing the
issues raised by the Governor, federal courts will in quick order fill this
vacuum—to the detriment of both this Court and the people who elect its
justices, and to the detriment of traditional constitutional principles of
judicial federalism.
For these reasons, I would grant, without further delay, the Gover-
nor’s request for an advisory opinion on the constitutionality of the
right-to-work laws, and I would promptly schedule oral arguments in this
regard. The issues raised here are those that should be addressed at this
time by the highest court of this state.
Summary Disposition May 10, 2013:
P
EOPLE V
D
USTIN
M
ARSHALL
, No. 146241; reported below: 298 Mich App
607. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we
vacate Part II of the Court of Appeals judgment. The Court of Appeals
erred in holding that there was no prosecutorial misconduct when the
prosecutor, in closing, argued that witnesses were recanting because they
were intimidated by spectators in the courtroom. We recognize that
“[p]rosecutors are accorded great latitude regarding their arguments and
conduct. They are free to argue the evidence and all reasonable infer-
ences from the evidence as it relates to their theory of the case.” People
v Bahoda, 448 Mich 261, 282 (1995) (internal citations omitted). Here,
however, there was no evidence that the courtroom spectators were
intimidating the witnesses. Thus, the prosecutor’s argument was not
based on evidence in the record, and was improper. The Court of Appeals
also erred in holding that there was no misconduct based on the
prosecutor’s argument that defendant had the intent to kill the victim
because children lived in the neighborhood where defendant fired his
gun. Defendant was charged with assault with intent to commit murder,
MCL 750.83. As we stated in People v Taylor, this crime requires a
specific intent to kill. 422 Mich 554, 567 (1985). Behavior that might
otherwise establish malice in the context of murder, such as callous
disregard for human life, is insufficient. Id. Because this line of argument
was irrelevant to the prosecutor’s burden of proof, it was improper.
However, the Court of Appeals nevertheless reached the correct result as
to the issue of prosecutorial misconduct because defendant failed to
preserve these arguments, and the misconduct did not affect his substan-
tial rights. People v Carines, 460 Mich 750, 763 (1999). In all other
respects, the application for leave to appeal is denied, because we are not
persuaded that the remaining questions presented should be reviewed by
this Court.
1020 493 M
ICHIGAN
R
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O
LNEY V
O
AKLAND
P
EBBLE
C
REEK
H
OUSING
A
SSOCIATES
, No. 147019; Court
of Appeals No. 312255. Pursuant to MCR 7.302(H)(1), in lieu of granting
leave to appeal, we remand this case to the Court of Appeals for
consideration as on leave granted. We further order that trial court
proceedings are stayed pending the completion of this appeal. On motion
of a party or on its own motion, the Court of Appeals may modify, set
aside, or place conditions on the stay if it appears that the appeal is not
being vigorously prosecuted or if other appropriate grounds appear.
Leave to Appeal Denied May 10, 2013:
L
AMPHIERE V
A
BRAHAM
, Nos. 146309, 146310, 146317, and 146318;
Court of Appeals Nos. 306354 and 306544.
Y
OUNG
,C.J.(concurring). I concur in the denial of leave. The circuit
court granted summary disposition to defendants because plaintiff’s
inebriation caused him to fall off a balcony. The Court of Appeals
correctly affirmed the circuit court’s ruling under MCL 600.2955a(1) that
plaintiff’s inebriation “was 50% or more the cause of” this fall. However,
the Court reversed in part because “medical testimony established at
least a question of fact regarding whether a separate and distinct injury
arose out of the delay in seeking medical treatment....”Lamphiere v
Abraham, unpublished opinion per curiam of the Court of Appeals, issued
October 30, 2012 (Docket Nos. 306354 and 306544), p 4.
The Court of Appeals correctly determined that the existence of this
separate and distinct injury is a question of fact. I write only to clarify the
questions that the Court of Appeals did not answer. To begin with, the
Court of Appeals’ decision still requires plaintiff to prove that the injury
was, in fact, separate and distinct from the injury that plaintiff suffered
when he fell off a balcony. Moreover, the Court of Appeals did not deny
the relevance of plaintiff’s inebriation to the alleged separate and distinct
injury arising out of the delay in seeking medical treatment. Indeed, the
facts that plaintiff’s inebriation caused his original injury and that
plaintiff had a history of passing out from severe intoxication suggest
that plaintiff’s inebriation may have contributed to defendants’ failure to
recognize the necessity of immediate medical treatment.
Because the circuit court’s review of defendants’ intoxication defense
only looked to the cause of plaintiff’s initial injury, the Court of Appeals’
partial reversal of summary disposition simply does not examine the
extent to which plaintiff’s inebriation caused the alleged separate and
distinct injury that arose out of the delay in seeking medical treatment.
M
ARKMAN
,J.(dissenting). I would grant leave to appeal to address
what precisely constitutes the “event” for purposes of MCL 600.2955a(1),
when an intoxicated person (plaintiff) has injured himself and caused the
very state of affairs leading to the necessity of ‘good samaritan conduct’
and given rise to the potential liability (of defendants) arising from that
conduct. Although the concurring justice is correct that defendants can
still argue “that plaintiff’s inebriation may have contributed to defen-
dants’ failure to recognize the necessity of immediate medical treat-
ment,” the Court of Appeals’ decision to treat the “event” for purposes of
O
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1021
MCL 600.2955a(1) as “the delay in seeking medical treatment” effec-
tively renders irrelevant all the evidence concerning how plaintiff came to
be injured by his own intoxication in the first place. Such a restrictive
view of the “event” simply seems inconsistent with a statute that affords
an absolute defense when a person’s intoxication has constituted more
than 50 percent of the cause of the “event” that resulted in his injury. At
the same time, such an arbitrarily compartmentalized view of the
“event” substantially dilutes the protections deriving from ‘good samari-
tan status’ in our state. Because I believe that this Court should carefully
assess the relationship between MCL 600.2955a and the ‘good samaritan
rule,’ so as to enable each to remain vital and relevant parts of the law, I
respectfully dissent.
In re B
ROCKITT
, No. 146965; Court of Appeals No. 311097.
P
OLICE
&F
IRE
R
ETIREMENT
S
YSTEM OF THE
C
ITY OF
D
ETROIT V
P
ARAMOUNT
L
IMITED
, LLC, No. 146978; Court of Appeals No. 311460.
1022 493 M
ICHIGAN
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S
PECIAL
O
RDERS
SPECIAL ORDERS
In this section are orders of the Supreme Court
(other than orders entered in cases before the Court)
of general interest to the bench and bar of the state.
Orders Entered September 19, 2012:
P
ROPOSED
A
MENDMENT OF
MCR 3.616.
On order of the Court, this is to advise that the Court is considering an
amendment of Rule 3.616 of the Michigan Court Rules. Before determining
whether the proposal should be adopted, changed before adoption, or
rejected, this notice is given to afford interested persons the opportunity to
comment on the form or the merits of the proposal or to suggest alternatives.
The Court welcomes the views of all. This matter also will be considered at
a public hearing. The notices and agendas for public hearings are posted at
<http://courts.michigan.gov/supremecourt/Resources/Administrative/
PH.htm>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
3.616. P
ROCEEDING TO
D
ETERMINE
C
ONTINUATION OF
V
OLUNTARY
F
OSTER
C
ARE
S
ERVICES
.
(A)-(D) [Unchanged.]
(E) Ex Parte Petition; Filing, Contents, Service. Within 150 days after
the signing of a voluntary foster care agreement, the Department of
Human Services shall file with the family division of the circuit court, in
the county where the youth resides, an ex parte petition requesting the
court’s determination that continuing in voluntary foster care is in the
youth’s best interests.
(1)-(2) [Unchanged.]
(3) Service. The Department of Human Services shall serve the
petition on
(a) the youth; and
(b) the court that had jurisdiction pursuant to MCL 712A.2(b) during
the neglect/abuse proceeding, if different than the court in which the
petition is filed; and
(c) the foster parent or parents, if any.
(F) Judicial Determination. The court shall review the petition,
report, and voluntary foster care agreement filed pursuant to subrule (E),
and then make a determination whether continuing in voluntary foster
care is in the best interests of the youth.
S
PECIAL
O
RDERS
1201
(1) Written Order; Time. The court shall issue an order that includes
its determination and individualized findings that support its determi-
nation. The findings shall be based on the Department of Human
Services’ written report and other information filed with the court. The
order must be signed and dated within 21 days of the filing of the petition.
(2) Service. The court shall serve the order on
(a)(i) the Department of Human Services;
(b)(ii) the youth; and
(c)(iii) the court that had jurisdiction pursuant to MCL 712A.2(b), if
different than the court in which the petition is filed; and
(iv) the foster parent or parents, if any.
(G) Confidential File. The Department of Human Services and the
youth are entitled to access to the records contained in the file, but
otherwise, the file is confidential.
Staff Comment: The proposed amendments of MCR 3.616 would
provide that the files of a young adult foster care youth are confidential,
but may be accessed by the youth and by DHS. The proposal further
would eliminate the requirement that the petition and order be served on
the previous court in which the youth’s child protection case was disposed
because the case is no longer active. This order also corrects numbering
of subsection (F)(2)(i)-(iv) so that the subsections are labeled with letters
(a)-(c).
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by January 1, 2013, at P.O.
comment, please refer to ADM File No. 2012-20. Your comments and the
comments of others will be posted at <http://courts.michigan.gov/
supremecourt/Resources/Administrative/index.htm#proposed>.
P
ROPOSED
A
MENDMENT OF
MCR 3.925.
On order of the Court, this is to advise that the Court is considering
an amendment of Rule 3.925 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas for
public hearings are posted at http://courts.michigan.gov/
supremecourt/Resources/Administrative/PH.htm>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
1202 493 M
ICHIGAN
R
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[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
3.925. O
PEN
P
ROCEEDINGS
;J
UDGMENTS AND
O
RDERS
;R
ECORDS
C
ONFIDEN-
TIALITY
;D
ESTRUCTION OF
C
OURT
F
ILES
;S
ETTING
A
SIDE
A
DJUDICATIONS
.
(A)-(D) [Unchanged.]
(E) Retention and Destruction of Court Case Files and Other Court
Records. This subrule governs the retention and destruction of court case
files and other court records, as defined by MCR 8.119(D).
(1) Destruction Generally; Effect. The court may destroy its case files
and other court records only as prescribed by this rule and the approved
General Records Retention and Disposal Schedule #16 — Michigan Trial
Court. at any time for good cause destroy its own files and records
pertaining to an offense by or against a minor, other than an adjudicated
offense described in MCL 712A.18e(2), except that the register of actions
must not be destroyed. Destruction of a file does not negate, rescind, or
set aside an adjudication.
(2) Register of Actions, Indexes, and Orders.
The register of actions and numerical and alphabetical indexes must be
maintained permanently. In addition, the court must permanently maintain
the order of adjudication, the order terminating parental rights, and the
order terminating jurisdiction for each child protective case; the order of
adjudication and the order terminating jurisdiction for each delinquency
case; the latest dispositive order for each designated case; and the order
appointing a guardian and any order dismissing, terminating, or revoking a
guardian for each juvenile guardianship case.
(23) Delinquency and Motor Vehicle Code Case Files and Records.
(a) The Except as provided in subrule (2), the court must may destroy
the diversion record case file of a juvenile within 28 days after the
juvenile becomes 17 years of age.
(b) The Except as provided in subrule (2), the court must may destroy all
case files of matters heard on the consent calendar within 28 days after the
juvenile becomes 17 years of age or after dismissal from court supervision,
whichever is later, unless the juvenile subsequently comes within the
jurisdiction of the court on the formal calendar. If the case is transferred to
the consent calendar and a register of actions exists, the register of actions
must be maintained permanently as a nonpublic record.
(c) Except as provided by subrules (2), (3)(a), and (3)(b), the court
must may destroy the legal records in the case files and records
pertaining to a person’s juvenile offenses when the person becomes 30
years old of age. The social records in the case files pertaining to a
person’s juvenile offenses may be destroyed three years after entry of the
order terminating jurisdiction of that person or when the person becomes
18 years old, whichever is later. The social records are the confidential
files defined in MCR 3.903(A)(2). The court must destroy the records in
traffic and local ordinance case files opened by issuance of a citation
pursuant to the motor vehicle code or a local corresponding ordinance
when the person becomes 30 years of age.
(d) If the court destroys its case files regarding a juvenile proceeding
on the formal calendar, it shall retain the register of actions, and, if the
S
PECIAL
O
RDERS
1203
information is not included in the register of actions, whether the
juvenile was represented by an attorney or waived representation.
(34) Child Protective Case Files and Records.
(a) The Except as provided in subrule (2), the court, for any reason,
may destroy the legal records in the child protective proceeding case files
and records pertaining to a child, other than orders terminating parental
rights, 25 years after the jurisdiction over the child ends, except that
where records on more than one child in a family are retained in the same
file, destruction is not allowed until 25 years after jurisdiction over the
last child ends. The social records in the child protective proceeding case
files pertaining to a child may be destroyed three years after entry of the
order terminating jurisdiction of that child or when the child become 18
years of age, whichever is later. The social records are the confidential
files defined in MCR 3.903(A)(2).
(b) All orders terminating parental rights to a child must be kept as a
permanent record of the court.
(5) Personal Protection Proceeding Case Files. The court may destroy
the legal and social records in personal protection proceeding case files
pertaining to a juvenile respondent three years after the expiration date
of the personal protection order or the latest dispositive order on a
violation of the personal protection order, or when the juvenile respon-
dent becomes 18 years of age, whichever is later.
(6) Juvenile Guardianship Case Files. The court may destroy the
records in juvenile guardianship case files 25 years after the order
appointing a juvenile guardian.
(7) Probation Case Files. The court may destroy the records in
probation case files pertaining to a juvenile three years after an order
terminating jurisdiction or when the juvenile becomes 18 years of age,
whichever is later.
(F)-(G) [Unchanged.]
Staff Comment: The proposed amendments of MCR 3.925 would
clarify rules and procedures for retention and destruction of various
records in juvenile cases.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by January 1, 2013, at P.O.
comment, please refer to ADM File No. 2012-12. Your comments and the
comments of others will be posted at <http://courts.michigan.gov/
supremecourt/Resources/Administrative/index.htm#proposed>.
P
ROPOSED
A
MENDMENT OF
MCR 3.976.
On order of the Court, this is to advise that the Court is considering
an amendment of Rule 3.976 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
1204 493 M
ICHIGAN
R
EPORTS
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas for
public hearings are posted at <http://courts.michigan.gov/supremecourt/
Resources/Administrative/PH.htm>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
3.976. P
ERMANENCY
P
LANNING
H
EARINGS
.
(A)-(D) [Unchanged.]
(E) Determinations; Permanency Options.
(1)-(2) [Unchanged.]
(3) Continuing Foster Care Pending Determination on Termination of
Parental Rights. If the court determines at a permanency planning hearing
that the child should not be returned home, it may order the agency to
initiate proceedings to terminate parental rights. Except as otherwise
provided in this subsection, if the child has been in foster care under the
responsibility of the state for 15 of the most recent 22 months, the court
shall order the agency to initiate proceedings to terminate parental rights. If
the court orders the agency to initiate proceedings to terminate parental
rights, the order must specify the date, or the time within which the petition
must be filed. In either case, the petition must be filed no later than 28 days
after the date the permanency planning hearing is concluded. The court is
not required to order the agency to initiate proceedings to terminate
parental rights if one or more of the following apply:
(a)-(c) [Unchanged.]
If the court does not require the agency to initiate proceedings to
terminate parental rights under this provision, the court shall state on
the record the reason or reasons for its decision.
(4) [Unchanged.]
Staff Comment: This proposed amendment would require a court to
indicate on the record the reason that no petition for termination of parental
rights need be filed, thus providing a record to future auditors who review
the state’s foster care program that the court explicitly chose the option.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by January 1, 2013, at P.O.
comment, please refer to ADM File No. 2012-13. Your comments and the
S
PECIAL
O
RDERS
1205
comments of others will be posted at <http://courts.michigan.gov/
supremecourt/Resources/Administrative/index.htm#proposed>.
Orders Entered October 24, 2012:
P
ROPOSED
A
MENDMENT OF
MCR 2.512.
On order of the Court, this is to advise that the Court is considering
amendments of Rule 2.512 of the Michigan Court Rules. Before deter-
mining whether the proposal should be adopted, changed before adop-
tion, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas for
public hearings are posted on the Court’s website at
SupremeCourt/rules/Pages/Public-Administrative-Hearings.aspx.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
2.512. I
NSTRUCTIONS TO
J
URY
.
(A)-(C) [Unchanged.]
(D) Model Civil Jury Instructions and Model Criminal Jury Instruc-
tions.
(1) The Committee on Model Civil Jury Instructions and the Com-
mittee on Model Criminal Jury Instructions appointed by the Supreme
Court has have the authority to adopt model civil jury instructions (M Civ
JI) and to amend or repeal those instructions approved by the predeces-
sor committee. Before adopting, amending, or repealing an instruction,
the each committee shall publish notice of the committee’s intent,
together with the text of the instruction to be adopted, or the amendment
to be made, or a reference to the instruction to be repealed, in the manner
provided in MCR 1.201. The notice shall specify the time and manner for
commenting on the proposal. The committee shall thereafter publish
notice of its final action on the proposed change, including, if appropriate,
the effective date of the adoption, amendment, or repeal. A model civil
jury instruction does not have the force and effect of a court rule.
(2) Pertinent portions of the instructions approved by the Committee
on Model Civil Jury Instructions or the Committee on Model Criminal
Jury Instructions or it’s a predecessor committee must be given in each
action in which jury instructions are given if
(a) they are applicable,
(b) they accurately state the applicable law, and
(c) they are requested by a party.
1206 493 M
ICHIGAN
R
EPORTS
(3) Whenever the a committee recommends that no instruction be
given on a particular matter, the court shall not give an instruction unless
it specifically finds for reasons stated on the record that
(a) the instruction is necessary to state the applicable law accurately,
and
(b) the matter is not adequately covered by other pertinent model civil
jury instructions.
(4) This subrule does not limit the power of the court to give
additional instructions on applicable law not covered by the model
instructions. Additional instructions, when given, must be patterned as
nearly as practicable after the style of the model instructions and must be
concise, understandable, conversational, unslanted, and nonargumenta-
tive.
Staff Comment: The Court has determined that the function of
adopting, amending, and repealing model criminal jury instructions
should be structured similar to that for model civil jury instructions. As
part of that structural change, the Court is considering an amendment
that would require trial courts to use model jury instructions in criminal
cases under the same circumstances in which they are used in civil cases,
i.e., if the instructions are applicable, accurately state the applicable law,
and are requested by a party.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on this proposal may be sent to the
Supreme Court Clerk in writing or electronically by February 1, 2013, at P.O.
comment, please refer to ADM File No. 2012-18. Your comments and the
comments of others will be posted on the Supreme Court’s website at the
following:<http://www.courts.mi.gov/courts/michigansupremecourt/rules/
court-rules-admin-matters/pages/chapter-2-civil-procedures.aspx>.
P
ROPOSED
A
MENDMENTS OF
MCR 3.913, 3.963, 3.965,
AND
3.974.
On order of the Court, this is to advise that the Court is considering
amendments of Rules 3.913, 3.963, 3.965, and 3.974 of the Michigan
Court Rules. Before determining whether the proposal should be
adopted, changed before adoption, or rejected, this notice is given to
afford interested persons the opportunity to comment on the form or
the merits of the proposal or to suggest alternatives. The Court
welcomes the views of all. This matter also will be considered at a
public hearing. The notices and agendas for public hearings are posted
on the Court’s website at http://courts.mi.gov/Courts/
MichiganSupremeCourt/rules/Pages/Public-Administrative-Hearings.aspx.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
S
PECIAL
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RDERS
1207
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
3.913. R
EFEREES
.
(A) Assignment of Matters to Referees.
(1) [Unchanged.]
(2) Attorney and Nonattorney Referees.
(a) [Unchanged.]
(b) Child Protective Proceedings. Only a person licensed to practice
law in Michigan may serve as a referee at a child protective proceeding
other than a preliminary inquiry, preliminary hearing, a progress review
under MCR 3.974(A), or an emergency removal hearing under MCR
3.974(B). In addition, either an attorney or a nonattorney referee may
issue an ex parte placement order under MCR 3.963(B).
(c)-(d) [Unchanged.]
(B)-(C) [Unchanged.]
R
ULE
3.963. P
ROTECTIVE
A
CQUIRING
P
HYSICAL
C
USTODY OF
C
HILD
.
(A) Taking Custody Without Court Order.
(1) An officer may without court order remove a child from the child’s
surroundings and take the child into protective custody if, after investi-
gation, the officer has reasonable grounds to conclude that the health,
safety, or welfare of the child is endangered believe that a child is at
substantial risk of harm or is in surroundings that present an imminent
risk of harm and the child’s immediate removal from those surroundings
is necessary to protect the child’s health and safety. If the child is an
Indian child who resides or is domiciled on a reservation, but is tempo-
rarily located off the reservation, the officer may take the child into
protective custody only when necessary to prevent imminent physical
damage or harm to the child.
(2) An officer who takes a child into protective custody under this rule
shall immediately notify the Department of Human Services. While
awaiting the arrival of the Department of Human Services, the child shall
not be held in a detention facility.
(3) If a child taken into protective custody under this subrule is not
released, the Department of Human Services shall immediately contact
the designated judge or referee as provided in subrule (D) to seek an ex
parte court order for placement of the child pursuant to subrule (B)(4).
(B) Court-Ordered Custody.
(1) Order to Take Child into Protective Custody. The court may issue
a written order, electronically or otherwise, authorizing a child protective
services worker, an officer, or other person deemed suitable by the court
to immediately take a child into protective custody when, upon after
presentment of proofs as required by a petition or affidavit of facts to the
court, the judge or referee court has reasonable grounds cause to believe
that conditions or surroundings under which the child is found are such
as would endanger the health, safety, or welfare of the child and that
remaining in the home would be contrary to the welfare of the child. If
the child is an Indian child who resides or is domiciled on a reservation,
1208 493 M
ICHIGAN
R
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but is temporarily located off the reservation, child is subject to exclusive
jurisdiction of the tribal court. However, the state court may enter an
order for protective custody of that child when it is necessary to prevent
imminent physical harm to the child. At the time it issues the order or as
provided in MCR 3.965(D), the court shall make a judicial determination
that reasonable efforts to prevent removal of the child have been made or
are not required. The court may also include in such an order authori-
zation to enter specified premises to remove the child. all the following
conditions exist, together with specific findings of fact:
(a) The child is at substantial risk of harm or is in surroundings that
present an imminent risk of harm and the child’s immediate removal
from those surroundings is necessary to protect the child’s health and
safety. If the child is an Indian child who resides or is domiciled on a
reservation, but is temporarily located off the reservation, the child is
subject to the exclusive jurisdiction of the tribal court. However, the state
court may enter an order for protective custody of that child when it is
necessary to prevent imminent physical damage or harm to the child.
(b) The circumstances warrant issuing an order pending the hearing.
(c) Consistent with the circumstances, reasonable efforts were made
to prevent or eliminate the need for removal of the child.
(d) No remedy other than protective custody is reasonably available to
protect the child.
(e) Continuing to reside in the home is contrary to the child’s welfare.
(2) The written order must indicate that the judge or referee has
determined that continuation in the home is contrary to the welfare of
the child and must state the basis for that determination.The court may
include in such an order authorization to enter specified premises to
remove the child.
(3) The court shall inquire whether a member of the child’s immediate
or extended family is available to take custody of the child pending
preliminary hearing, whether there has been a central registry clearance,
and whether a criminal history check has been initiated.
(4) Ex parte Placement Order. If an officer has taken a child into
protective custody without court order under subsection (A), or if the
Department of Human Services is requesting the court grant it protective
custody and placement authority, the Department of Human Services
shall present to the court a petition or affidavit of facts and request a
written ex parte placement order. If a judge finds all the factors in subrule
(B)(1)(a)-(e) are present, the judge may issue a placement order; if a
referee finds all the factors in subrule (B)(1)(a)-(e) are present, the
referee may issue an interim placement order pending a preliminary
hearing. The written order shall contain specific findings of fact. It shall
be communicated, electronically or otherwise, to the Department of
Human Services.
(C) Arranging for Court Appearance. An officer or other person who
takes a child into protective custody must:
(1) immediately attempt to notify the child’s parent, guardian, or legal
custodian of the protective custody;
S
PECIAL
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RDERS
1209
(2) inform the parent, guardian, or legal custodian of the date, time,
and place of the preliminary or emergency removal hearing scheduled by
the court;
(3) immediately bring the child to the court for preliminary hearing,
or immediately contact the court for instructions regarding placement
pending preliminary the hearing;
(4) if the court is not open, DHS must contact the person designated
under MCR 3.934(B)(2) subrule (D) for permission to place the child
pending preliminary the hearing;
(5) ensure that the petition is prepared and submitted to the court;
(6) prepare file a custody statement similar to the statement required
for detention of a juvenile as provided in MCR 3.934(A)(4) and submit it
to with the court that includes:
(a) a specific and detailed account of the circumstances that led to the
emergency removal, and
(b) the names of persons notified and the times of notification or the
reason for failure to notify.
(D) Designated Court Contact
(1) When the Department of Human Services seeks a placement order
for a child in protective custody under subrule (A) or (B), DHS shall
contact a judge or referee designated by the court for that purpose.
(2) If the court is closed, the designated judge or referee may issue an
ex parte order for placement upon receipt, electronically or otherwise, of
a petition or affidavit of facts. The order must be communicated in
writing, electronically or otherwise, to the appropriate county DHS office
and filed with the court the next business day.
R
ULE
3.965. P
RELIMINARY
H
EARING
.
(A) Time for Preliminary Hearing.
(1) [Unchanged.]
(2) Severely Physically Injured or Sexually Abused Child. When the
Family Independence Agency Department of Human Services submits a
petition in cases in which the child has been severely physically injured,
as that term is defined in MCL 722.628(3)(c), or sexually abused, and
subrule (A)(1) does not apply, the preliminary hearing must commence no
later than 24 hours after the agency submits a petition or on the next
business day following the submission of the petition.
(B) Procedure.
(1)-(9) [Unchanged.]
(10) The court may adjourn the hearing for up to 14 days to secure the
attendance of witnesses or for other good cause shown. If the preliminary
hearing is adjourned, the court may make temporary orders for the
placement of the child when necessary to assure the immediate safety of
the child, pending the completion of the preliminary hearing and subject
to subrules (C)and (D).
(11) [Unchanged.]
(12) If the court authorizes the filing of the petition, the court:
1210 493 M
ICHIGAN
R
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(a) may release the child to a parent, guardian, or legal custodian and
may order such reasonable terms and conditions believed necessary to
protect the physical health or mental well-being of the child; or
(b) may order placement of the child after making the determinations
specified in subrules (C)and (D), if those determinations have not
previously been made. If the child is an Indian child, the child must be
placed in descending order of preference with:
(i) a member of the child’s extended family,
(ii) a foster home licensed, approved, or specified by the child’s tribe,
(iii) an Indian foster family licensed or approved by a non-Indian
licensing authority,
(iv) an institution for children approved by an Indian tribe or operated
by an Indian organization that has a program suitable to meet the child’s
needs.
The court may order another placement for good cause shown. If the
Indian child’s tribe has established by resolution a different order of
preference than the order prescribed above, placement shall follow that
tribe’s order of preference as long as the placement is the least restrictive
setting appropriate to the particular needs of the child, as provided in 25
USC 1915(b). standards to be applied in meeting preference require-
ments above shall be prevailing social and cultural standards of Indian
community in which parent or extended family resides or with which
parent or extended family members maintain social and cultural ties.
(13) [Unchanged.]
(C) Pretrial Placement; Contrary to the Welfare Determination.
(1) [Unchanged.]
(2) Criteria. If continuing the child’s residence in the home is contrary
to the welfare of the child, the court shall not return the child to home,
but shall order the child placed in the most family-like setting available
consistent with the child’s needs. The court may order placement of the
child into foster care if the court finds all of the following:
(a) Custody of the child with the parent presents a substantial risk of
harm to the child’s life, physical health, or mental well-being.
(b) No provision of service or other arrangement except removal of the
child is reasonably available to adequately safeguard the child from the
risk as described in subrule (A).
(c) Continuing the child’s residence in the home is contrary to the
child’s welfare.
(d) Consistent with the circumstances, reasonable efforts were made
to prevent or eliminate the need for removal of the child.
(e) Conditions of child custody away from the parent are adequate to
safeguard the child’s health and welfare.
(3) Contrary to the Welfare Findings. Contrary to the welfare findings
must be made. If placement is ordered, the court must make a statement
of findings, in writing or on the record, explicitly including the finding
that it is contrary to the welfare of the child to remain at home and the
reasons supporting that finding. If the “contrary to the welfare of the
child” finding is placed on the record and not in a written statement of
findings, it must be capable of being transcribed. The findings may be
S
PECIAL
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RDERS
1211
made on the basis of hearsay evidence that possesses adequate indicia of
trustworthiness. If continuing the child’s residence in the home is
contrary to the welfare of the child, the court shall not return the child
to the home, but shall order the child placed in the most family-like
setting available consistent with the child’s needs.
(4) Reasonable Efforts Findings. Reasonable efforts findings must be
made. In making the reasonable efforts determination under this sub-
rule, the child’s health and safety must be of paramount concern to the
court. When the court has placed a child with someone other than the
custodial parent, guardian, or legal custodian, the court must determine
whether reasonable efforts to prevent removal of the child have been
made or that reasonable efforts to prevent removal are not required. The
court must make this determination at the earliest possible time, but no
later than 60 days from the date of removal, and must state the factual
basis for the determination in the court order. Nunc pro tunc orders or
affidavits are not acceptable. Reasonable efforts to prevent a child’s
removal from the home are not required if a court of competent
jurisdiction has determined that
(a) the parent has subjected the child to aggravated circumstances as
listed in sections 18(1) and (2) of the Child Protection Law, MCL
722.638(1) and (2); or
(b) the parent has been convicted of 1 or more of the following:
(i) murder of another child of the parent,
(ii) voluntary manslaughter of another child of the parent,
(iii) aiding or abetting, attempting, conspiring, or soliciting to commit
such a murder or such a voluntary manslaughter, or
(iv) a felony assault that results in serious bodily injury to the child or
another child of the parent; or
(c) parental rights of the parent with respect to a sibling have been
terminated involuntarily; or
(d) the parent is required to register under the Sex Offender Regis-
tration Act.
(4)(5)-(7)(8) [Renumbered, but otherwise unchanged.]
(D) Pretrial Placement; Reasonable Efforts Determination. In making
the reasonable efforts determination under this subrule, the child’s
health and safety must be of paramount concern to the court.
(1) When the court has placed a child with someone other than the
custodial parent, guardian, or legal custodian, thecourt must determine
whether reasonable efforts to prevent the removal of the child have been
made or that reasonable efforts to prevent removal are not required. The
court must make this determination at the earliest possible time, but no
later than 60 days from the date of removal, and must state the factual
basis for the determination in the court order. Nunc pro tunc orders or
affidavits are not acceptable.
(2) Reasonable efforts to prevent a the child’s removal from the home
are not required if a court of competent jurisdiction has determined that
(a) the parent has subjected the child to aggravated circumstances as
listed in sections 18(1) and (2) of the Child Protection Law, MCL
722.638(1) and (2); or
1212 493 M
ICHIGAN
R
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(b) the parent has been convicted of 1 or more of the following:
(i) murder of another child of the parent,
(ii) voluntary manslaughter of another child of the parent,
(iii) aiding or abetting, attempting, conspiring, or soliciting to commit
such a murder or such a voluntary manslaughter, or
(iv) a felony assault that results in serious bodily injury to the child or
another child of the parent; or
(c) parental rights of the parent with respect to a sibling have been
terminated involuntarily.
(E)(D) [Relettered, but otherwise unchanged.]
R
ULE
3.974. P
OST
-D
ISPOSITIONAL
P
ROCEDURES
;C
HILD AT
H
OME
.
(A) [Unchanged.]
(B) Emergency Removal; Protective Custody.
(1) General. If the child, over whom the court has retained jurisdiction,
remains at home following the initial dispositional hearing or has otherwise
returned home from foster care, the court may order the child to be taken
into protective custody to protect the health, safety, or welfare of the child,
pending an emergency removal hearing pursuant to the conditions listed in
MCR 3.963(B)(1) and upon receipt, electronically or otherwise, of a petition
or affidavit of fact. except, that i If the child is an Indian child and the child
resides or is domiciled within a reservation, but is temporarily located off the
reservation, the court may order the child to be taken into protective custody
only when necessary to prevent imminent physical damage or harm to the
child.
(2) [Unchanged.]
(3) Emergency Removal Hearing. If the court orders the child to be taken
into protective custody to protect the child’s health, safety, or welfare
pursuant to MCR 3.963, the court must conduct an emergency removal
hearing no later than 24 hours after the child has been taken into custody,
excluding Sundays and holidays as defined in MCR 8.110(D)(2). If the child
is an Indian child, the court must also conduct a removal hearing in
accordance with MCR 3.967 in order for the child to remain removed from
a parent or Indian custodian. Unless the child is returned to the parent
pending the dispositional review, the court must make a written determina-
tion that the criteria for placement listed in MCR 3.965(C)(2) are satisfied.
(a)-(b) [Unchanged.]
(C) [Unchanged.]
Staff Comment: The proposed changes of MCR 3.913, 3.963, 3.965,
and 3.974 are intended to incorporate the statutory changes enacted in
2012 Public Act 163.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that theyy can make the notifications
specified in MCR 1.201. Comments on this proposal may be sent to the
Supreme Court Clerk in writing or electronically by February 1, 2013, at
S
PECIAL
O
RDERS
1213
filing a comment, please refer to ADM File No. 2012-19. Your comments
and the comments of others will be posted on the Supreme Court’s
website at the following address: <http://www.courts.michigan.gov/
courts/michigansupremecourt/rules/court-rules-admin-matters/pages/
chapter-3-special-proceedings-and-actions.aspx>.
Order Entered November 7, 2012:
P
ROPOSED
A
MENDMENTS OF
MCR 6.302
AND
6.310.
On order of the Court, this is to advise that the Court is considering
amendments of Rule 6.302 and Rule 6.310 of the Michigan Court Rules.
Before determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter also
will be considered at a public hearing. The notices and agendas for public
hearings are posted at <http://courts.mi.gov/courts/
michigansupremecourt/rules/pages/public-administrative-hearings.aspx>.
Publication of this proposal does not mean the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions are indicated in underlining
and deletions are indicated by strikeover.]
R
ULE
6.302. P
LEAS OF
G
UILTY AND
N
OLO
C
ONTENDERE
.
(A)-(B) [Unchanged.]
(C) A Voluntary Plea.
(1)-(2) [Unchanged.]
(3) If there is a plea agreement and its terms provide for the
defendant’s plea to be made in exchange for a specific sentence disposi-
tion or a prosecutorial sentence recommendation, the court may
(a) reject the agreement; or
(b) accept the agreement after having considered the presentence
report, in which event it must sentence the defendant to the sentence
agreed to or recommended by the prosecutor; or
(c) accept the agreement without having considered the presentence
report; or
(d) take the plea agreement under advisement.
If the court accepts the agreement without having considered the
presentence report or takes the plea agreement under advisement, it
must explain to the defendant that the court is not bound to follow the
sentence disposition or recommendation agreed to by the prosecutor, and
that if the court chooses not to follow the sentence dispositionit, the
defendant will be allowed to withdraw from the plea agreement. A judge’s
decision not to follow the sentence recommendation does not entitle the
defendant to withdraw the defendant’s plea.
1214 493 M
ICHIGAN
R
EPORTS
(4) [Unchanged.]
(D)-(F) [Unchanged.]
R
ULE
6.310. W
ITHDRAWAL OR
V
ACATION OF
P
LEA
.
(A) [Unchanged.]
(B) Withdrawal After Acceptance but Before Sentence. Except as
provided in subsection (3), after After acceptance but before sentence,
(1) [Unchanged.]
(2) the defendant is entitled to withdraw the plea if
(a) the plea involves a prosecutorial sentence recommendation or an
agreement for a specific sentence, and the court states that it is unable to
follow the agreement or recommendation; the trial court shall then state
the sentence it intends to impose, and provide the defendant opportunity
to affirm or withdraw the plea; or
(b) the plea involves a statement by the court that it will sentence to
a specified term or within a specified range, and the court states that it
is unable to sentence as stated; the trial court shall provide the defendant
opportunity to affirm or withdraw the plea, but shall not state the
sentence it intends to impose.
(3) A defendant is not entitled to withdraw a plea under subsection
(2)(a) or (2)(b) if defendant commits misconduct after plea is accepted but
before sentencing. For purposes of this rule, misconduct is defined to
include, but is not limited to: absconding or failing to appear for
sentencing, violating terms of conditions on bond or terms of any
sentencing or plea agreement, or otherwise failing to comply with an
order of the court pending sentencing.
(C)-(E) [Unchanged.]
Staff Comment: The proposed amendments of MCR 6.302 and MCR
6.310 would eliminate the ability of a defendant to withdraw a plea if the
defendant and prosecutor agree that the prosecutor will recommend a
particular sentence, but the court chooses to impose a sentence greater
than that recommended by the prosecutor. Further, the proposal would
clarify that a defendant’s misconduct that occurs between the time the
plea is accepted and the defendant’s sentencing may result in a forfeiture
of the defendant’s right to with draw a plea in either a Cobbs or Killebrew
case.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be sent to the
Supreme Court Clerk in writing or electronically by March 1, 2013, at P.O.
a comment, please refer to ADM File No. 2011-19. Your comments and
the comments of others will be posted under ADM File No. 2011-19 at
following address: <http://courts.mi.gov/michigansupremecourt/rules/
court-rules-admin-matters/pages/chapter-6-criminal-procedure.aspx>.
S
PECIAL
O
RDERS
1215
Order Entered December 5, 2012:
P
ROPOSED
A
MENDMENT OF
MCR 7.203.
On order of the Court, this is to advise that the Court is considering
an amendment of Rule 7.203 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
will be considered at a public hearing. The notices and agendas for public
hearings are posted on Court’s website: <http://courts/mi.gov/courts/
michigansupremecourt/rules/pages/public-administrative-hearings.aspx>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions to text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
7.203. J
URISDICTION OF THE
C
OURT OF
A
PPEALS
.
(A)-(C) [Unchanged.]
(D) Other Appeals and Proceedings. The court has jurisdiction over
any other appeal or action established by law. An order concerning the
assignment of a case to the business court under MCL 600.8301 et seq.
shall not be appealed to the Court of Appeals.
(E)-(G) [Unchanged.]
Staff Comment: Under 2012 PA 333, an order by a court in which a
case is assigned to a business court is not subject to appeal by right or
leave in the Court of Appeals. The proposed amendment in this file would
codify that prohibition in MCR 7.203(D).
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar
and to the State Court Administrator so that they can make the
notifications specified in MCR 1.201. Comments on this proposal may
be sent to the Supreme Court Clerk in writing or electronically by
April 1, 2013, at P.O. Box 30052, Lansing, MI 48909, or
ADM File No. 2012-28. Your comments and the comments of other
will be posted at the following: <http://courts.mi.gov/
courts/michigansupremecourt/rules/court-rules-admin-matters/pages/
matters/pages/default.aspx>.
Orders Entered January 23, 2013:
P
ROPOSED
A
MENDMENTS OF
MCR 8.110.
On order of the Court, this is to advise that the Court is considering an
amendment of Rule 8.110 of the Michigan Court Rules. Before determining
whether the proposal should be adopted, changed before adoption, or
1216 493 M
ICHIGAN
R
EPORTS
rejected, this notice is given to afford interested persons the opportunity to
comment on the form or the merits of the proposal or to suggest alternatives.
The Court welcomes the views of all. This matter also will be considered at
a public hearing. The notices and agendas for public hearings are posted at
<http://www.courts.mi.gov/courts/michigansupremecourt/rules/pages/
public-administrative-hearings.aspx>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
8.110. C
HIEF
J
UDGE
R
ULE
.
(A) [Unchanged.]
(B) Chief Judge, Chief Judge Pro Tempore, and Presiding Judges of
Divisions.
(1) The Supreme Court shall select a judge of each trial court to serve
as chief judge of each trial court. Judges shall submit applications and
otherwise participate in the selection of chief judges as requested by
SCAO. No later than September 1 of each odd-numbered year, each trial
court with two or more judges may submit the names of no fewer than
two judges whom the judges of that court recommend for selection as
chief judge.
(2) Unless a chief judge pro tempore or presiding judge is named by
the Supreme Court, the chief judge shall select a chief judge pro tempore
and a presiding judge of any division of the trial court. The chief judge pro
tempore and any presiding judges shall fulfill such functions as the chief
judge assigns.
(3) The chief judge, chief judge pro tempore, and any presiding judges
shall serve a two-year term beginning on January 1 of each even-
numbered year, provided that the chief judge serves at the pleasure of the
Supreme Court and the chief judge pro tempore and any presiding judges
serve at the pleasure of the chief judge.
(4) Where exceptional circumstances exist, tThe Supreme Court may
appoint a judge of another court to serve as chief judge of a trial court.
a. Apart from the duties of a chief judge described under this rule, the
chief probate judge has various obligations imposed by statute. If the
chief judge of a probate court is not a probate judge, the senior probate
judge shall serve as the chief probate judge in meeting the statutory
obligations of a chief probate judge.
b. The senior probate judge is the judge with the longest service as a
probate judge. If two judges have the same number of years of service, the
judge who received the highest number of votes in the first election is the
senior probate judge.
(C)-(D) [Unchanged.]
Staff Comment: The proposed amendment of MCR 8.110 is intended
to update the rule to reflect today’s emphasis on collaboration and local
S
PECIAL
O
RDERS
1217
sharing of resources, and the revisions would also clarify who is required
to fulfill the statutory “chief” probate judge obligations.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by May 1, 2013, at P.O. Box
comment, please refer to ADM File No. 2012-27. Your comments and the
comments of others will be posted under the chapter affected by this
proposal at <http://www.courts.mi.gov/courts/michigansupremecourt/rules/
court-rules-admin-matters/pages/default.aspx.
P
ROPOSED
A
MENDMENTS OF
MCR 8.111.
On order of the Court, this is to advise that the Court is considering an
amendment of Rule 8.111 of the Michigan Court Rules. Before determining
whether the proposal should be adopted, changed before adoption or
rejected, this notice is given to afford interested persons the opportunity to
comment on the form or the merits of the amendment or to suggest
alternatives. The Court welcomes the views of all. This matter will be
considered at a public hearing. The notices and agendas for public hearings
are posted at <http://www.courts.mi.gov/courts/michigansupremecourt/
rules/pages/public-administrative-hearings.aspx>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions to the text are indicated in underlining and
deleted text is indicated by strikeover.]
R
ULE
8.111. A
SSIGNMENT OF
C
ASES
.
(A)-(B) [Unchanged.].
(C) Reassignment.
(1) If a judge is disqualified or for other good cause cannot undertake
an assigned case, the chief judge may reassign it to another judge by a
written order stating the reason. To the extent feasible, the alternate
judge should be selected by lot. The chief judge shall file the order with
the trial court clerk and have the clerk notify the attorneys of record. The
chief judge may also designate a judge to act temporarily until a case is
reassigned or during a temporary absence of a judge to whom a case has
been assigned.
(2) If a judge is reassigned under a concurrent jurisdiction plan or a
family court plan, the successor judge will be assigned all cases filed after
the date of reassignment, as well as any pending matters or postjudgment
matters that relate to disposed cases. The chief judge shall submit a local
administrative order under MCR 8.112 identifying the revised caseload
distribution.
1218 493 M
ICHIGAN
R
EPORTS
(D) [Unchanged.]
Staff Comment: The proposed amendment of MCR 8.111 would clarify
that reassignment under a concurrent jurisdiction plan or family court
plan is effective on the date of the reassignment, and the successor judge
would handle not only the new cases that are filed in that court, but
would also preside over any matters then pending or postjudgment
matters that arise. A court would be required to submit a local adminis-
trative order to the State Court Administrative Office describing the
revised caseload distribution when a reassignment occurs.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by May 1, 2013, at P.O. Box
comment, please refer to ADM File No. 2012-35. Your comments and the
comments of others will be posted under the chapter affected by this
proposal at <http://www.courts.mi.gov/courts/michigansupremecourt/rules/
court-rules-admin-matters/pages/default.aspx>.
Orders Entered February 6, 2013:
P
ROPOSED
A
DMINISTRATIVE
O
RDER
N
O.
2013-X
TO
I
MPLEMENT
B
USINESS
C
OURT
S
TANDARDS
.
On order of the Court, this is to advise that the Court is considering a
proposed administrative order that would implement business court stan-
dards. Before determining whether the proposal should be adopted, changed
before adoption, or rejected, this notice is given to afford interested persons
the opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter also
will be considered at a public hearing. The notices and agendas for public
hearings are posted at <http://www.courts.mi.gov/courts/
michigansupremecourt/rules/pages/public-administrative-hearings.aspx>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
Business courts, as defined by MCL 600.8031, are specialized dockets
within a circuit court. Business courts are intended to provide a case
management structure that facilitates timely, effective, and predictable
resolution of complex business cases. Specialized dockets improve the
efficiency of the courts, which benefits all litigants. This order provides
specific direction to circuit courts in the establishment of their business
courts.
1. Each business court shall develop a local administrative order for
operation of its business court docket. That local administrative order
must be approved by the State Court Administrative Office in accordance
with MCR 8.112(B).
S
PECIAL
O
RDERS
1219
2. Judges appointed to the business court must attend training
provided by the Michigan Judicial Institute. Business court judges are
encouraged also to participate in training provided by other organiza-
tions as local funding permits.
3. A business court judge should preside over the assigned business
court cases from filing through disposition of the matter. If the business
court judge is unable to preside over a business court matter, the chief
judge may temporarily assign another judge to preside over the business
court matter pursuant to MCR 8.111(C).
4. Courts shall establish specific case management practices for
business court matters. These practices should reflect the specialized
pretrial requirements for business court cases, and will typically include
provisions relating to scheduling conferences, alternative dispute resolu-
tion (with an emphasis on mediation scheduled early in the proceeding),
discovery cutoff dates, case evaluation, and final settlement conferences.
5. Case management and scheduling conferences shall be conducted
by the assigned business court judge. Courts should facilitate the
processing of business court cases by utilizing electronic filing (if autho-
rized by the Supreme Court), telephonic and video conferencing.
6. Business court opinions shall be transmitted to the SCAO within 7
days after the trial court enters the opinion. Court opinions generated as
part of the business court docket must meet the requirements established
by the SCAO.
7. Business courts shall maintain data as prescribed by the SCAO,
and shall provide data to the SCAO upon request.
Staff Comment: The proposed administrative order would establish
procedures for courts that are required to or choose to implement a
business court.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by May 1, 2013, at P.O. Box
comment, please refer to ADM File No. 2012-36. Your comments and the
comments of others will be posted at <http://www.courts.mi.gov/
michigansupremecourt/rules/court-rules-admin-
matters/pages/default.aspx>
P
ROPOSED
A
MENDMENTS OF
MCR 2.112.
On order of the Court, this is to advise that the Court is considering
an amendment of Rule 2.112 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas for
1220 493 M
ICHIGAN
R
EPORTS
public hearings are posted at <http://www.courts.mi.gov/courts/
michigansupremecourt/rules/pages/public-administrative-hearings.aspx>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
2.112. P
LEADING
S
PECIAL
M
ATTERS
.
(A-N) [Unchanged.]
(O) Business and Commercial Disputes.
(1) If a case involves a business or commercial dispute as defined in MCL
600.8031 and the court maintains a business court docket, a party shall file
written notice with the party’s initial pleading that the case meets the
statutory requirements to be assigned to the business court. If a cross-claim,
counterclaim, third-party complaint, amendment, or any other modification
of the action includes a business or commercial dispute, a party shall file
written notice with the party’s pleading that the case meets the statutory
requirements to be assigned to the business court.
(2) If a case does not initially include a business or commercial dispute
but subsequently includes such a claim and a party failed to submit
written notice or a party fails to submit written notice as required in
subsection (1), a party shall file a motion for determination by the court
that the case is eligible for assignment to the business court.
(3) If the court determines that the action meets the statutory
requirements of MCL 600.8031, the court shall assign the case to the
business court.
(4) A party may file a motion requesting the chief judge to review the
court’s determination under subsection 3.
Staff Comment: The proposed rule amendments of MCR 2.112 would
provide a means to identify business court cases and the placement of
those matters on the business court docket.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by May 1, 2013, at P.O.
a comment, please refer to ADM File No. 2012-36. Your comments and
the comments of others will be posted under the chapter affected by this
proposal at <http:/www.courts.mi.gov/courts/michigansupremecourt/
rules/court-rules-admin-matters/pages/chapter-2-civil-procedures.aspx>
Orders Entered March 20, 2013:
P
ROPOSED
A
MENDMENTS OF
MCR 2.403.
On order of the Court, this is to advise that the Court is considering an
S
PECIAL
O
RDERS
1221
amendment of Rule 2.403 of the Michigan Court Rules. Before determining
whether the proposal should be adopted, changed before adoption, or
rejected, this notice is given to afford interested persons the opportunity to
comment on the form or the merits of the proposal or to suggest alternatives.
The Court welcomes the views of all. This matter also will be considered at
a public hearing. The notices and agendas for public hearings are posted
at <http://www.courts.mi.gov/courts/michigansupremecourt/rules/pages/
public-administrative-hearings.aspx>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions to the text are indicated in underlining and
deleted text is shown by strikeover.]
R
ULE
2.403. C
ASE
E
VALUATION
.
(A)-(N) [Unchanged.]
(O) Rejecting Party’s Liability for Costs
(1)-(7) [Unchanged.]
(8) A request for costs under this subrule must be filed and served
within 28 days after the entry of the judgment or entry of an order
(i) denying a timely motion for a new trial, or
(ii) to set aside the judgment,
(iii) for rehearing or reconsideration, or
(iv) for other postjudgment relief.
(9)-(11) [Unchanged.]
Staff Comment: The proposed amendment of MCR 2.403(O)(8) would
add a reference to a motion for rehearing or reconsideration (consistent
with the Court of Appeals opinion in Meemic Ins Co v DTE Energy Co,
292 Mich App 278 [2011]), as well as a reference to other postjudgment
motions to toll the period of time in which a party may file a request for
case-evaluation sanctions.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2013, at P.O.
a comment, please refer to ADM File No. 2011-26. Your comments and
the comments of others will be posted under the chapter affected by this
proposal at <http://www.cuorts.mi.gov/courts/michigansupremecourt/
rules/court-rules-admin-matters/pages/chapter-2-civil-procedures.aspx>.
P
ROPOSED
A
MENDMENTS OF
MCR 7.105, 7.111,
AND
7.205.
On order of the Court, this is to advise that the Court is considering
an amendment of Rules 7.105, 7.111, and 7.205 of the Michigan Court
Rules. Before determining whether the proposal should be adopted,
1222 493 M
ICHIGAN
R
EPORTS
changed before adoption, or rejected, this notice is given to afford
interested persons the opportunity to comment on the form or the
merits of the proposal or to suggest alternatives. The Court welcomes
the views of all. This matter also will be considered at a public hearing.
The notices and agendas for public hearings are posted at
<http://www.courts.mi.gov/courts/michigansupremecourt/rules/pages/
public-administrative-hearings.aspx>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
7.105. A
PPLICATION FOR
L
EAVE TO
A
PPEAL
.
(A)-(C) [Unchanged.]
(D) Reply. Within 7 days after service of the answer, the appellant may
file a reply brief that conforms to MCR 7.212(G).
(D)(E)-(F)(G) [Former subsections (D)-(F) are relettered, but other-
wise unchanged.]
R
ULE
7.111. B
RIEFS
.
(A) Time for Filing and Service.
(1)-(2) [Unchanged.]
(3) Within 14 days after the appellee’s brief is served on appellant, the
appellant may file a reply brief. The brief must conform to MCR 7.212(G)
and must be served on all other parties to the appeal.
(4) Briefs in cross appeals. The filing and service of briefs by a cross
appellant and a cross appellee are governed by subrules (A)(1) and (2)-(3).
(4)(5)-(5)(6) [Former subsections (4)-(5) renumbered, but otherwise
unchanged.]
(B)-(D) [Unchanged.]
R
ULE
7.205. A
PPLICATION FOR
L
EAVE TO
A
PPEAL
.
(A)-(C) [Unchanged.]
(D)Reply. A reply brief may be filed as provided by MCR 7.212(G).
(D)(E)-(G)(H) [Former subsections (D)-(G) are relettered, but other-
wise unchanged.]
Staff Comment: The proposed changes would permit the filing of a
reply brief in support of an application for leave to appeal in the circuit
court and the Court of Appeals. The proposed changes were submitted by
the Appellate Practice Section of the State Bar of Michigan.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by July 1, 2013, at
S
PECIAL
O
RDERS
1223
filing a comment, please refer to ADM File No. 2011-31. Your comments
and the comments of others will be posted under the chapter affected by
this proposal at <http://courts.mi.gov/michigansupremecourt/rules/
court-rules-admin-matters/pages/chapter-7-appellate-rules.aspx>.
Orders Entered April 3, 2013:
P
ROPOSED
A
MENDMENTS OF
MCR 2.302.
On order of the Court, this is to advise that the court is considering
an amendment of Rule 2.302 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice if given to afford interested persons
the opportunity to comment on the form or the merits of the
proposal or to suggest alternatives. The Court welcomes the
views of all. This matter also will be considered at a public hearing.
The notices and agendas of public hearings are posted at
<http://www.courts.mi.gov/courts/michigansupremecourt/rules/pages/
public-administrative-hearings.aspx>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
2.302. G
ENERAL
R
ULES
G
OVERNING
D
ISCOVERY.
(A) [Unchanged.]
(B) Scope of Discovery.
(1)-(3) [Unchanged.]
(4) Trial Preparation; Experts; Fees and Expenses. Discovery of
facts known and opinions held by experts, otherwise discoverable
under the provisions of subrule (B)(1) and acquired or developed in
anticipation of litigation or for trial, may be obtained only as follows:
(a) Expert Expected to Testify.
(a)(i) A party may through interrogatories require another party to
identify each person whom the other party expects to call as an expert
witness at trial, to state the subject matter about which the expert is
expected to testify, and to state the substance of the facts and opinions to
which the expert is expected to testify and a summary of the grounds for
each opinion.
(ii) A party may take the deposition of a person whom the other party
expects to call as an expert witness at trial. In the absence of a stipulation
or an order under this subrule (B)(4)(a)(ii), the deposition may be used
for any purpose permitted under the Michigan Rules of Evidence. On
written stipulation or on order, the deposition of an expert may be
available for limited purposes, including that the deposition is for
discovery only and may be used only for impeachment. The stipulation or
1224 493 M
ICHIGAN
R
EPORTS
order must specify the purposes for which the deposition may be used and
provide for the allocation of the fees and expenses attributable to the
deposition.
(iii) On motion, the court may order further discovery by other means,
subject to such restrictions as to scope and such provisions (pursuant to
under subrule [B][4][c]) concerning fees and expenses as the court deems
appropriate.
(b) Expert Not Expected to Testify. A party may not discover the
identity of and facts known or opinions held by an expert who has been
retained or specially employed by another party in anticipation of
litigation or preparation for trial and who is not expected to be called as
a witness at trial, except
(i) as provided in MCR 2.311, or
(ii) where an order has been entered on a showing of exceptional
circumstances under which it is impracticable for the party seeking
discovery to obtain facts or opinions on the same subject by other means.
(c) Fees and Expenses.Unless manifest injustice would result
(i) If a deposition is taken under a stipulation or order under subrule
(B)(4)(a)(ii), the stipulation or order controls payment of expenses and
expert fees.the court shall require that the party seeking discovery under
subrules (B)(4)(a)(ii) or (iii) or (B)(4)(b) pay the expert a reasonable fee
for time spent in a deposition, but not including preparation time; and
(ii) In order cases, with respect to discovery obtained under subrule
(B)(4)(a)(ii) or (iii), the court may require, and with respect to discovery
obtained under subrule (B)(4)(b) the court shall require, the party
seeking discovery to pay the other party a fair portion of the fees and
expenses and expert fees reasonably incurred by the latter party in
obtaining facts and opinions from the expert. Otherwise, the assessment
or allocation of fees and expenses shall be reserved for determination
after entry of judgment.
(d) Deposition for Use at Trial. A party may depose a witness that he
or she expects to call as an expert at trial. The deposition may be taken
at any time before trial on reasonable notice to the opposite party, and
may be offered as evidence at trial as provided in MCR 2.308(A). The
court need not adjourn the trial because of the unavailability of expert
witnesses or their depositions.
(5)-(7) [Unchanged.]
(C) Protective Orders. On motion by a party or by the person from
whom discovery is sought, and on reasonable notice and for good cause
shown, the court in which the action is pending may issue any order that
justice requires to protect a party or person from annoyance, embarrass-
ment, oppression, or undue burden or expense, including one or more of
the following orders:
(1)-(6) [Unchanged.]
(7) that, consistent with subrule (B)(4)(a)(ii), a deposition shall be
taken only for the purpose of discovery and shall not be admissible in
evidence except for the purpose of impeachment;
(8)-(9) [Unchanged.]
S
PECIAL
O
RDERS
1225
If the motion for a protective order is denied in whole or in part, the court
may, on terms and conditions as are just, order that a party or person
provide or permit discovery. The provisions of MCR 2.313(A)(5) apply to
the award of expenses incurred in relation to the motion.
(D)-(E) [Unchanged.]
(F) Stipulations Regarding Discovery Procedure. Unless the court
orders otherwise, the parties may by written stipulation:
(1) provide that depositions may be taken before any person, at any
time or place, on any notice, and in any manner, and when so taken may
be used like other depositions; and
(2) modify the procedures of these rules for other methods of
discovery, except that stipulations extending the time within which
discovery may be sought or for responses to discovery may be made only
with the approval of the court.
(G)-(H) [Unchanged.]
Staff Comment: In addition to providing minor technical changes, the
proposed amendments of MCR 2.302 would clarify that discovery-only
depositions may be taken only by stipulation or court order. The
amendment would also require that the stipulation or order explain how
the costs of this type of deposition are to be allocated. These proposed
amendments were submitted by the State Bar of Michigan Representa-
tive Assembly.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to
the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by August 1, 2013 at P.O.
comment, please refer to ADM File No. 2012-02. Your comments and the
comments of others will be posted at <http://courts.mi.gov/
courts/michigansupremecourt/rules/court-rules-admin-matters/pages/
chapter-2-civil-procedures.aspx>.
P
ROPOSED
A
MENDMENTS OF
MCR 3.218.
On order of the Court, this is to advise that the Court is considering
an amendment of Rule 3.218 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas for
public hearings are posted at <http://courts.mi.gov/courts/
michigansupremecourt/rules/pages/public-administrative-hearings.aspx>
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
1226 493 M
ICHIGAN
R
EPORTS
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
3.218. F
RIEND OF THE
C
OURT
R
ECORDS
;A
CCESS
.
(A) GeneralDefinitions. Friend of the court records are not subject to
a subpoena issued under these Michigan Court Rules. Unless another
rule specifically provides for the protection or release of friend of the
court records, this rule governs. When used in this subrule, unless the
context indicates otherwise,
(1) “records” means paper files, computer files, microfilm, microfiche,
audio tape, video tape, photographs, and includes records as defined in
MCR 1.109any case-specific information the friend of the court office
maintains on any media;
(2) [Unchanged.]
(3) “confidential information” means
(a) staff notes from alternative dispute resolution, investigations,
mediation sessions, and settlement conferences;
(b) Family Independence Agency any confidential information from
the Department of Human Services child protective services reports unit
or information included in any reports to protective services from a friend
of the court office; (c)
(c) formal mediation records;
(d) communications from minors;
(e) friend of the court grievances filed by the opposing party and the
responses;
(f) a party’s address or any other information if release is prohibited
by when a court order prohibits its release;
(g)-(h) [Unchanged.]
(4) Reference to an agency, office, officer, or capacity includes an
employee or contractor working within the referenced agency or office, or
an employee or caseworker acting on behalf of the referenced officer or
working in the referenced capacity. (B)
(B) A friend of the court office must provide access to nonconfidential
records to the following:
(1) A party,; third-party custodian,; guardian, guardian ad litem or
counsel for a minor,; lawyer-guardian ad litem,; and an attorney of
record,; and the personal representative of the estate of a party. must be
given access to friend of the court records related to the case, other than
confidential information.
The friend of the court office must release records to a government
agency at the request of a person in this subrule who can show that the
information is necessary to allow the person to receive services from that
government agency.
(2) An officer in the Judge Advocate General’s office in any branch of
the United States military, if the request is made on behalf of a service
member on active duty otherwise identified in this subrule. (C)
(C) A citizen advisory committee established under the Friend of the
Court Act, MCL 552.501 et seq.,Unless the release is otherwise prohibited
S
PECIAL
O
RDERS
1227
by law, a friend of the court office must provide access to all nonconfi-
dential and confidential records to the following:
(1) shall be given access to a grievance filed with the friend of the
court, and to information related to the case, other than confidential
information; Other agencies and individuals as necessary for the friend of
the court to implement the state’s plan under Title IV, Part D of the
Social Security Act, 42 USC 651 et seq. or as required by the court, state
law, or regulation that is consistent with this state’s IV-D plan.
(2) The Department of Human Services, as necessary to report
suspected abuse or neglect or to allow the Department of Human Services
to investigate or provide services to a party or child in the case.may be
given access to confidential information related to a grievance if the court
so orders, upon clear demonstration by the committee that the informa-
tion is necessary to the performance of its duties and that the release will
not impair the rights of a party or the well-being of a child involved in the
case.
When a citizen advisory committee requests information that may be
confidential, the friend of the court shall notify the parties of the request
and that they have 14 days from the date the notice was mailed to file a
written response with the court. If the court grants access to the
information, it may impose such terms and conditions as it determines
are appropriate to protect the rights of a party or the well-being of a child.
(3) Other agencies that provide services under Title IV, part D of the
Social Security Act, 42 USC 651 et seq.
(4) Auditors from state and federal agencies, as required to perform
their audit functions of a friend of the court matter.
(5) Corrections, parole, or probation officers, in connection with a
criminal action connected to the case for which the records are kept.
(6) Michigan law enforcement personnel who are conducting a civil or
criminal investigation related directly to a friend of the court matter, and
to federal law enforcement officers pursuant to a federal subpoena in a
criminal or civil investigation.
(D) Protective services personnel from the Family Independence
Agency must be given access to friend of the court records related to the
investigation of alleged abuse and neglect.A citizen advisory committee
established under the Friend of the Court Act, MCL 552.501 et seq.
(1) shall be given access to a grievance filed with the friend of the
court, and to information related to the case, other than confidential
information.
(2) may be given access to confidential information related to a
grievance if the court so orders, upon demonstration by the committee
that the information is necessary to the performance of its duties and
that the release will not impair the rights of a party or the well-being of
a child involved in the case.
When a citizen advisory committee requests information that may be
confidential, the friend of the court shall notify the parties of the request
and that they have 14 days from the date the notice was mailed to file a
written response with the court.
1228 493 M
ICHIGAN
R
EPORTS
If the court grants access to the information, it may impose such
terms and conditions as it determines are appropriate to protect the
rights of a party of the well-being of a child.
(E) The prosecuting attorney and personnel from the Office of
Child Support and the Family Independence Agency must be given
access to friend of the court records required to perform the functions
required by title IV, part D of the Social Security Act, 42 USC 651 et
seq.A friend of the court office may refuse to provide access to records
in the friend of the court file if the friend of the court does not hold the
original record and the requestor may request access from the holder
of the original.
(F) Auditors from state and federal agencies must be given access to
friend of the court records required to perform their audit functions.
(G)-(H) [Redesignated as (F)-(G), but otherwise unchanged.]
Staff Comment: These proposed amendments would codify state and
federal statutory and regulation revisions that have occurred in the last
decade, and would add specificity and detail to the existing language in
MCR 3.218.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by August 1, 2013, at
filing a comment, please refer to ADM File No. 2012-04. Your comments
and the comments of others will be posted under the chapter affected by
this proposal at <http://courts.mi.gov/michigansupremecourt/rules/
court-rules-admin-matters/pages/chapter-3-special-proceedings-and-
actions.aspx>.
Order Entered April 10, 2013:
P
ROPOSED
A
MENDMENTS OF
MCR 7.313.
On order of the Court, this is to advise that the Court is considering
an amendment of Rule 7.313 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
will be considered at a public hearing by the Court before a final decision
is made. The schedule and agendas for public hearings are posted on the
Court’s website: <http://courts/mi.gov/courts/michigansupremecourt/
rules/pages/public-administrative-hearings.aspx>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
S
PECIAL
O
RDERS
1229
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
7.313. M
OTIONS IN
S
UPREME
C
OURT
.
(A)-(D) [Unchanged.]
(E) Motion for Rehearing.
(1) To move for rehearing, a party must file within 21 days after the
opinion was filed (the date of an opinion is stamped on the upper right
corner of the first page):
(a)-(c) [Unchanged.]
The motion for rehearing must include reasons why the Court should
modify its opinion. Motions for rehearing are subject to the restrictions
contained in MCR 2.119(F)(3).
(2)-(4) [Unchanged.]
(F) Motion for Reconsideration. To move for reconsideration of a
Court order, a party must file the items required by subrule (A) within 21
days after the date of certification of the order. Motions for reconsidera-
tion are subject to the restrictions contained in MCR 2.119(F)(3). The
clerk shall refuse to accept for filing any motion for reconsideration of an
order denying a motion for reconsideration. The filing of a motion for
reconsideration does not stay the effect of the order addressed in the
motion.
Staff Comment: The proposed amendments would clarify that the
decision whether to grant rehearing or reconsideration in the Michigan
Supreme Court should be made consistent with the standard incorpo-
rated in MCR 2.119(F)(3), similar to the reference for consideration of
such motions in the Court of Appeals contained in MCR 7.215(I)(l).
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the secretary of the State Bar of
Michigan and to the state court administrator so that they can make the
notifications specified in MCR 1.201. Comments on this proposal may be
sent to the Supreme Court Clerk in writing or electronically by August 1,
When filing a comment, please refer to ADM File No. 2013-12. Your
comments and the comments of others will be posted under the chapter
affected by this proposal at <http://courts.mi.gov/
michigansupremecourt/rules/court-rules-admin-matters/pages/chapter-
7-appellate-rules.aspx>.
Orders Entered May 1, 2013:
P
ROPOSED
A
DMINISTRATIVE
O
RDER
N
O
. 2013-__
FOR THE
E
STABLISHMENT OF
V
IDEOCONFERENCING
S
TANDARDS
.
On order of the Court, this is to advise that the Court is considering
a proposed administrative order that would require the State Court
Administrator to establish videoconferencing standards. Before deter-
mining whether the proposal should be adopted, changed before adop-
tion, or rejected, this notice is given to afford interested persons the
1230 493 M
ICHIGAN
R
EPORTS
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas of
public hearings are posted at <http://courts.mi.gov/courts/
michigansupremecourt/rules/pages/public-administrative-hearings.aspx>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
Proposed Administrative Order No. 2013-__:
To ensure consistency in videoconferencing practices and procedures
throughout the state of Michigan; to improve service to the public, other
agencies, and the judiciary; and to improve the performance and effi-
ciency of videoconferencing in the courts, it is ordered that the State
Court Administrator establish Videoconferencing Standards and that
appellate and trial courts conform to those standards. The State Court
Administrative Office shall enforce the standards and assist courts in
adopting practices to conform to those standards.
Staff Comment: This proposed administrative order would require the
State Court Administrator to establish videoconferencing standards and
would require that the appellate and trial courts conform to those
standards. Please note that this proposed administrative order is part of
a group of documents in this file that has been published for comment,
including proposed videoconferencing rules that would amend MCR
3.210, 3.215, and 6.104, and would adopt MCR 8.124, a new rule, and
draft videoconferencing standards, which are attached at the end of that
order.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by September 1, 2013 at
filing a comment, please refer to ADM File No. 2013-18. Your comments
and the comments of others will be posted at <http://court.mi.gov/
courts/michigansupremecourt/rules/court-rules-admin-matters/pages/
administrative-orders.aspx>
P
ROPOSED
A
DMINISTRATIVE
O
RDER
2013-__
FOR THE
E
STABLISHMENT OF
E-
FILING
S
TANDARDS TO BE
U
SED BY
M
ICHIGAN
A
PPELLATE AND
T
RIAL
C
OURTS
.
On order of the Court, this is to advise that the Court is considering
adoption of Administrative Order No. 2013-__. Before determining
whether the proposed administrative order should be adopted,
changed before adoption, or rejected, this notice is given to afford
interested persons the opportunity to comment on the form or the
merits of the order or to suggest alternatives. The Court welcomes the
views of all. This matter also will be considered at a public hearing.
The notices and agendas for public hearings are posted at
<http://www.courts.mi.gov/courts/michigansupremecourt/rules/pages/
public-administrative-hearings.aspx>.
S
PECIAL
O
RDERS
1231
Publication of this proposed administrative order does not mean that
the Court will issue an order on the subject, nor does it imply probable
adoption of the proposal in its present form.
Proposed Administrative Order No. 2013-__:
To ensure the consistency in e-filing practices and procedures
throughout the state of Michigan; to improve the service to the public,
other agencies, and the judiciary; and to improve the performance and
efficiency of e-filing operations, it is ordered that the State Court
Administrator establish Michigan E-Filing Standards and that appellate
and trial courts conform to those standards. The State Court Adminis-
trative Office shall enforce the standards and assist courts in adopting
practices to conform to those standards.
Staff Comment: This proposed administrative order would require the
State Court Administrator to promulgate e-filing standards, and would
require courts that offer e-filing to comply with those standards. Please
note that this proposed order is part of a group of documents in this file
that has been published for comment, including proposed e-filing rules
and proposed e-filing standards.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by September 1, 2013,
When filing a comment, please refer to ADM File No. 2013-18. Your
comments and the comments of others will be posted under the chapter
affected by this proposal at <http://courts.mi.gov/
courts/michigansuprememcourt/rules/court-rules-admin-matters/pages/
administrative-orders.aspx>
P
ROPOSED
A
MENDMENTS OF
MCR 2.621 and 2.622.
On order of the Court, this is to advise that the Court is considering
amendments of Rule 2.621 and Rule 2.622 of the Michigan Court Rules.
Before determining whether the proposal should be adopted, changed
before adoption, or rejected, this notice is given to afford interested
persons the opportunity to comment on the form or the merits of the
amendments or to suggest alternatives. The Court welcomes the views of
all. This matter also will be considered at a public hearing. The notices
and agendas for public hearings are posted at
<http://www.courts.mi.gov/courts/michigansupremecourt/rules/pages/
public-administrative-hearings.aspx>.
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
2.621. P
ROCEEDINGS
S
UPPLEMENTARY TO
J
UDGMENT
.
(A)-(D) [Unchanged.]
(E) Receivers. When necessary to protect the rights of a judgment
1232 493 M
ICHIGAN
R
EPORTS
creditor, the court may appoint a receiver in a proceeding under subrule
(A)(2), pending the determination of the proceeding held in conformance
with MCR 2.622.
(F)-(H) [Unchanged.]
R
ULE
2.622. R
ECEIVERS IN
S
UPPLEMENTARY
P
ROCEEDINGS.
(A) For good cause shown, the court may appoint a receiver in any
action or proceeding. A receiver appointed under this section is a
fiduciary for the benefit of all persons appearing in the action or
proceeding. For purposes of this rule, “receivership estate” means the
entity, person, or property subject to the receivership.
(B) The order of appointment shall include provisions related to the
following:
(1) bonding amounts and requirements as provided in subrule (G);
(2) identification of real and personal property of the receivership
estate;
(3) procedures and standards related to the reasonable compensation
of the receiver as provided in subrule (F);
(4) reports required to be produced and filed by the receiver, including
the final report and accounting;
(5) a description of the duties, authority and powers of the receiver;
(6) a listing of property to be surrendered to the receiver; and
(7) any other provision the court deems appropriate.
(C) Appointment.
(1) The court shall defer to the petitioner’s nomination of receiver,
except for good cause shown. If the court finds good cause not to appoint
the nominated receiver, the court shall make findings of fact as to any
receiver considered for appointment regarding each of the following:
(a) experience in the operation and/or liquidation of the type of assets
to be administered;
(b) relevant business, legal and receivership knowledge, if any;
(c) ability to obtain the required bonding if more than a nominal bond
is required;
(d) any objections to any receiver considered for appointment;
(e) whether the receiver considered for appointment is disqualified
under subrule (C)(2); and
(f) any other factor the court deems appropriate.
(2) Except as otherwise provided by law or by subrule (C)(3), a person
or entity may not serve as a receiver or in any other professional capacity
representing or assisting the receiver, if such person or entity:
(a) is a creditor or a holder of an equity security of the receivership
estate:
(b) is or was an investment banker for any outstanding security of the
receivership estate;
(c) has been, within three years before the date of the appointment of
a receiver, an investment banker for a security of the receivership estate,
or an attorney for such an investment banker, in connection with the
offer, sale, or issuance of a security of the receivership estate;
S
PECIAL
O
RDERS
1233
(d) is or was, within two years before the date of the appointment of
a receiver, a director, an officer, or an employee of the receivership estate
or of an investment banker specified in subrule (b) or (c) of this section,
unless the court finds the appointment is in the best interest of the
receivership estate and that there is no actual conflict of interest by
reason of the employment;
(e) has an interest materially adverse to the interest of any class of
creditors or equity security holders by reason of any direct or indirect
relationship to, connection with, or interest in the receivership estate or
an investment banker specified in subrule (b) or (c) of this section, or for
any other reason;
(f) has or represents an interest adverse to the receivership estate or
stands in any relation to the subject of the action or proceeding that
would tend to interfere with the impartial discharge of duties as an
officer of the court.
(g) has, at any time within five years before the date of the appoint-
ment of a receiver, represented or been employed by the receivership
estate or any secured creditor of the receivership estate as an attorney,
accountant, appraiser, or in any other professional capacity and the court
finds an actual conflict of interest by reason of the representation or
employment;
(h) is an “insider” as defined by MCL 566.31(9);
(i) represents or is employed by a creditor of the receivership estate
and, on objection of an interested party, the court finds an actual conflict
of interest by reason of the representation or employment; or
(j) has a relationship to the action or proceeding that will interfere
with the impartial discharge of the receiver’s duties.
(3) Any person who has represented or has been employed by the
receivership estate is eligible to serve for a specified limited purpose, if
the court determines such employment or appointment is in the best
interest of the receivership estate and if such professional does not
represent or hold an interest materially adverse to the receivership
estate.
(D)Duties.
(1) Within 7 days after entry of the order of appointment, the receiver
shall file an acceptance of receivership with the court. The acceptance
shall be served on all parties to the action.
(2) Unless otherwise ordered, within 28 days after the filing of the
acceptance of appointment, the receiver shall provide notice of entry of
the order of appointment to any person or entity having a recorded
interest in all or any part of the receivership estate.
(3) The receiver shall file with the court an inventory of the property
of the receivership estate within 35 days after entry of the order of
appointment, unless an inventory has already been filed.
(4) The receiver shall account for all receipts, disbursements and
distributions of money and property of the receivership estate.
1234 493 M
ICHIGAN
R
EPORTS
(5) If there are sufficient funds to make a distribution to a class of
creditors, the receiver may request that each creditor in the class of all
creditors file a written proof of claim with the court. The receiver may
contest the allowance of any claim.
(6) The receiver shall furnish information concerning the receivership
estate and its administration as requested by any party to the action or
proceeding.
(7) The receiver shall file with the court a final written report and
final accounting of the administration of the receivership estate.
(A) (E)Powers and Duties.
(1) A receiver of the property of a debtor appointed pursuant to MCL
600.6104(4) has, unless restricted by special order of the court, Except as
otherwise provided by law or by the order of appointment, a receiver has
general power and authority to sue for and collect all the debts, demands,
and rents belonging toof the debtorreceivership estate, and to compro-
mise andor settle those that are unsafe and of doubtful characterclaims.
(2) A receiver may sue in the name of the debtor when it is necessary
or proper to do so, and may apply for an order directing the tenants of
real estate belonging to the debtor, or of which the debtor is entitled to
the rents, to pay their rents to the receiver.liquidate the personal
property of the receivership estate into money. By separate order of the
court, a receiver may sell real property of the receivership estate.
(3) A receiver may make leases as may be necessary, for terms not
exceeding one year.
(4) A receiver may convert the personal property into money, but may
not sell real estate of the debtor without a special order of the court.
(53) A receiver is not allowed the costs of a suit brought by the
receiver against an insolvent person from whom the receiver is unable to
collect the costs, unless the suit is brought by order of the court or by
consent of all persons interested in the funds in the receiver’s hands.may
pay the ordinary expenses of the receivership but may not distribute the
funds in the receivership estate to a party to the action without an order
of the court.
(64) A receiver may sell doubtful debts and doubtful claims to
personal property at public auction, giving at least 7 days’ notice of the
time and place of the sale.A receiver may only be discharged on order of
the court.
(7)A receiver must give security to cover the property of the debtor
that may come into the receiver’s hands, and must hold the property for
the benefit of all creditors who have commenced, or will commence,
similar proceedings during the continuance of the receivership.
(F) Compensation and Expenses of Receiver.
(1) A receiver shall be entitled to reasonable compensation for services
rendered to the receivership estate.
(2) The order appointing a receiver shall specify:
(a) the source and method of compensation of the receiver;
(b) that interim compensation may be paid to the receiver after notice
to all parties to the action or proceeding and opportunity to object as
provided in subsection (5);
S
PECIAL
O
RDERS
1235
that all compensation of the receiver is subject to final review and
approval of the court.
(3) All approved fees and expenses incurred by a receiver, including
fees and expenses for persons or entities retained by the receiver, shall be
paid or reimbursed as provided in the order appointing the receiver.
(4) The receiver shall file with the court an application for payment of
fees and the original notice of the request. The notice shall provide that
fees and expenses will be deemed approved if no written objection is filed
with the court within 7 days after service of the notice. The receiver shall
serve the notice and a copy of the application on all parties to the action
or proceedings, and file a proof of service with the court.
(8) A receiver may not pay the funds in his or her hands to the parties
or to another person without an order of the court.
(5) The application by a receiver, for interim or final payment of fees
and expenses, shall include:
(a) A description in reasonable detail of the services rendered, time
expended, and expenses incurred;
(b) The amount of compensation and expenses requested;
(c) The amount of any compensation and expenses previously paid to
the receiver;
(d) The amount of any compensation and expenses received by the
receiver from or to be paid by any source other than the receivership
estate;
(e) A description in reasonable detail of any agreement or understand-
ing for a division or sharing of compensation between the person
rendering the services and any other person except as permitted in
subpart (6).
If written objections are filed or if, in the court’s determination, the
application for compensation requires a hearing, the court shall schedule
a hearing and notify all parties of the scheduled hearing.
(6) A receiver or person performing services for a receiver shall not, in
any form or manner, share or agree to share compensation for services
rendered to the receivership estate with any person other than a firm
member, partner, employer, or regular associate of the person rendering
the services except as authorized by order of the court.
(9) A receiver may only be discharged from the trust on order of the
court.
(G) Bond.
(B) Notice When Other Action or Proceeding Pending; Appointmen-
t.In setting an appropriate bond for the receiver, the court may consider
factors including but not limited to:
(1) The value of the receivership estate, if known;
(2) The amount of cash or cash equivalents expected to be received
into the receivership estate;
(3) The amount of assets in the receivership estate on deposit in
insured financial institutions or invested in U.S. Treasury obligations;
(4) Whether the assets in the receivership estate cannot be sold
without further order of the court;
(5) If the receiver is an entity, whether the receiver has sufficient
1236 493 M
ICHIGAN
R
EPORTS
assets or acceptable errors and omissions insurance to cover any poten-
tial losses or liabilities of the receivership estate;
(6) The extent to which any secured creditor is undersecured;
(7) Whether the receivership estate is a single parcel of real estate
involving few trade creditors; and
(8) Whether the parties have agreed to a nominal bond.
(1) The court shall ascertain, if practicable, by the oath of the
judgment debtor or otherwise, whether another action or motion under
MCR 2.621 is pending against the judgment debtor.
(2) If another action or motion under MCR 2.621 is pending and a
receiver has not been appointed in that proceeding, notice of the
application for the appointment of a receiver and of all subsequent
proceedings respecting the receivership must be given, as directed by the
court, to the judgment creditor prosecuting the other action or motion.
(3) If several actions or motions under MCR 2.621 are filed by
different creditors against the same debtor, only one receiver may be
appointed, unless the first appointment was obtained by fraud or
collusion, or the receiver is an improper person to execute the trust.
(4) If another proceeding is commenced after the appointment of a
receiver, the same person may be appointed receiver in the subsequent
proceeding, and must give further security as the court directs. The
receiver must keep a separate account of the property of the debtor
acquired since the commencement of the first proceeding, and of the
property acquired under the appointment in the later proceeding.
(H) Intervention. An interested person or entity may move to inter-
vene. Any motion to intervene shall comply with MCR 2.209.
(I) Removal of Receiver. After notice and hearing, the court may
remove any receiver for good cause shown.
(C) Claim of Adverse Interest in Property.
(1) If a person brought before the court by the judgment creditor
under MCR 2.621 claims an interest in the property adverse to the
judgment debtor, and a receiver has been appointed, the interest may be
recovered only in an action by the receiver.
(2) The court may by order forbid a transfer or other disposition of the
interest until the receiver has sufficient opportunity to commence the
action.
(3) The receiver may bring an action only at the request of the
judgment creditor and at the judgment creditor’s expense in case of
failure. The receiver may require reasonable security against all costs
before commencing the action.
(D) Expenses in Certain Cases. When there are no funds in the hands
of the receiver at the termination of the receivership, the court, on
application of the receiver, may set the receiver’s compensation and the
fees of the receiver’s attorney for the services rendered, and may direct
the party who moved for the appointment of the receiver to pay these
sums in addition to the necessary expenditures of the receiver. If more
than one creditor sought the appointment of a receiver, the court may
allocate the costs among them.
S
PECIAL
O
RDERS
1237
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by September 1, 2013,
When filing a comment, please refer to ADM File No. 2012-30. Your
comments and the comments of others will be posted at <http://
courts.mi.gov/courts/michigansupremecourt/rules/court-rules-admin-
matters/pages/chapter-2-civil-procedures.aspx>.
P
ROPOSED
N
EW
R
ULES OF
MCR 2E.001 (E
LECTRONIC
F
ILING
R
ULES FOR ALL
M
ICHIGAN
C
OURTS
).
On order of the Court, this is to advise that the Court is considering a
proposal to adopt new rules regarding electronic filing in Michigan courts.
Before determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter will
be considered at a public hearing. The notices and agendas for public
hearings are posted at <http://courts/mi.gov/courts/
michigansupremecourt/rules/pages/public-administrative-hearings.aspx.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its current form.
[The following language for electronic filing is new.]
S
UBCHAPTER
2E.000. A
PPLICABILITY
;C
ONSTRUCTION
.
R
ULE
2E.001. A
PPLICABILITY
;C
ITATION
.
The rules in this chapter and the electronic filing policies and
standards of the State Court Administrative Office (SCAO) govern the
electronic filing and service of documents in all courts established by the
constitution and laws of the State of Michigan, and may be referred to as
“e-filing rules.” Citation for these rules is governed by MCR 1.101.
R
ULE
2E.002. D
EFINITIONS
.
For purposes of this chapter:
(A) “Authorized user” means a user of the e-filing system who is
registered to file documents through approved electronic means.
(B) “Electronic filing” or “e-filing” means the electronic transmission
of information to and from the court.
(C) “Electronic filing plan” means a plan prepared by a court and
approved by SCAO.
1238 493 M
ICHIGAN
R
EPORTS
(D) “Electronic filing system” means a system provided by a court, or
vendor with court approval, that provides electronic transmission of
information.
(E) “Electronic service” or “e-service” means the electronic service of
information.
R
ULE
2E.003. E
LECTRONIC
-F
ILING
P
LANS
.
Each court that implements e-filing shall adopt by local administrative
order a plan that conforms to this chapter and the requirements of SCAO.
The plan shall contain procedures that ensure document availability, secu-
rity and integrity, and authentication of a document and its sender.
R
ULE
2E.004. S
COPE AND
A
PPLICABILITY
.
(A) A court whose electronic filing plan has been approved by SCAO
may do any of the following, consistent with the rules of this chapter:
(1) Accept electronic filing and permit electronic service of documents;
(2) Issue electronic filing guidelines consistent with this chapter that
are not in conflict with statewide standards established by SCAO. The
guidelines must be incorporated in the court’s local administrative order
and posted prominently;
(3) Electronically issue, file, and serve notices, orders, opinions, and
other documents, subject to the provisions of these rules and the
statewide standards established by SCAO.
(B) Confidential information may be electronically filed or electronically
served in compliance with statewide standards established by SCAO.
(C) Attachments, or discovery materials, submitted electronically
shall be prepared in accordance with MCR 1.109(C) and policies and
standards approved by SCAO. Exhibits to be used at trial shall be
submitted to the judge in accordance with a local e-filing plan and as
provided in MCR 2.516 and MCR 3.930.
R
ULE
2E.005. T
RANSACTION
F
EES
.
Transaction fees approved by the Supreme Court may be assessed. In
addition, authorized users may be charged a reasonable convenience fee
associated with credit card processing, electronic fund transfers, or other
financial processing fees.
R
ULE
2E.006. S
IGNATURES
.
(A) A pleading, document, or instrument electronically filed or elec-
tronically served under this chapter shall be deemed to have been signed
if it conforms to MCR 1.109(D).
(B) The filing party shall maintain documents containing handwrit-
ten signatures of third parties (e.g., affidavits and stipulations) and shall
provide them to the other parties or the court upon request.
R
ULE
2E.007. O
FFICIAL
C
OURT
R
ECORD
.
The electronic version of a document filed with or generated by the
court under this chapter is an official court record pursuant to MCR
1.109. An appellate record shall be certified in accordance with MCR
7.210(A)(1).
S
PECIAL
O
RDERS
1239
R
ULE
2E.008. T
RANSMISSION
F
AILURES
.
In the event of a transmission failure, a party may file a motion
requesting that the court enter an order permitting a document to be
deemed filed nunc pro tunc on the date it was first attempted to be sent
electronically. The moving party must prove to the court’s satisfaction
that:
(1) the transmission was attempted at the time asserted by the party;
(2) the electronic filing system failed to process the transmission of
the electronic document; and
(3) the transmission failure was not caused, in whole or in part, by any
action or inaction of the party.
S
UBCHAPTER
2E.100. E
LECTRONIC
F
ILING
.
R
ULE
2E.101. T
IME AND
E
FFECT
.
(A) A document filed electronically shall be considered filed with the
court when the transmission to the electronic filing service provider is
complete. The court’s e-filing plan must state the time by which trans-
missions must be completed to be considered filed by the close of business
on that day, but not later than 5:00 p.m.
(B) If the court rejects a submitted document pursuant to MCR
8.119(C), the court shall notify the filer of the rejection and the reason for
the rejection. A rejected document shall not become part of the official
court record.
R
ULE
2E.102. E
-FILING
T
RANSACTION
.
The electronic filing service provider shall maintain, in accordance
with the General Records Retention and Disposal Schedule #16 —
Michigan Trial Courts, a record that includes the date, time, size, and
acceptance status of the transmission. The filer has the responsibility of
ensuring that filings have been received by the e-filing system.
R
ULE
2E.103. P
AYMENT OF
F
ILING
F
EES
.
A filing fee is due and payable at the time of the transmission of the
electronic document unless the fee is waived by order of the court
pursuant to MCR 2.002, the fee is not due or payable under MCR
7.202(3), or the court makes alternative arrangements with the filer in
accord with the court’s local plan. Failure to timely pay a filing fee may
result in the rejection of the filing by the court.
R
ULE
2E.104. P
UBLIC
A
CCESS
T
ERMINALS
.
The court must provide a public access terminal that is available
during the hours the court is open to enable electronic filings in
conformity with this chapter.
S
UBCHAPTER
2E.200. E
LECTRONIC
S
ERVICE
.
R
ULE
2E.201. G
ENERAL
P
ROVISIONS
.
(A) Service of process shall be accomplished electronically among
authorized users through the electronic filing system in accordance with
1240 493 M
ICHIGAN
R
EPORTS
these rules. Service of documents on other parties who are not authorized
users must be completed in the traditional manner, according to Michi-
gan Court Rules.
(B) Delivery of documents through the electronic filing service pro-
vider in conformity with these e-filing rules shall be considered valid and
effective personal service.
R
ULE
2E.202. T
IME AND
E
FFECT
.
A document served electronically through an electronic filing service
provider in conformity with all applicable requirements of this chapter
shall be considered served when the transmission from the electronic
filing service provider to the recipient’s e-mail address is complete, except
that for the purpose of computing time to respond, a document served
after 5:00 p.m. local court time shall be deemed to have been served on
the next day that is not a Saturday, Sunday, or legal holiday.
R
ULE
2E.203. E-S
ERVICE
T
RANSACTION
.
The electronic filing service provider shall maintain, in accordance
with the General Records Retention and Disposal Schedule #16 —
Michigan Trial Courts, a record that includes the date, time, size, and
acceptance status of the transmission. The transmission serves as proof
of service.
Staff Comment: This series of proposed new “2E” rules contains court
rules regarding e-filing in Michigan courts. Please note that this proposed
order is part of a group of documents in this file that has been published
for comment, including a proposed administrative order regarding
e-filing rules and the proposed e-filing standards.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on this proposal may be sent to the
Supreme Court Clerk in writing or electronically by September 1, 2013,
When submitting a comment, please refer to ADM File No. 2013-18. Your
comments and the comments of others will be posted at
<http://courts.mi.gov/courts/michigansupremecourt/rules/court-
rules-admin-matters/pages/chapter-2-civil-procedures.aspx>.
D
RAFT
S
TANDARDS FOR
E
FILING
.
1.0. DEFINITIONS
E-Filing means submitting court records for a filing in a case through
electronic systems and processes in compliance with Michigan Court Rule
1.109(C) and all other applicable rules of procedure. E-filing includes
filing a court record with accompanying data elements necessary to
either establish an index of records for new cases or associate the record
with an existing case in the case management system. E-filing may also
be referred to using the acronym ECF (Electronic Court Filing) as
established by The National Center for State Courts.
S
PECIAL
O
RDERS
1241
Electronic Court Records means those records as defined in Michi-
gan Court Rule 1.109(A) that are filed with or maintained by the clerks of
court in electronic format. Electronic court records are electronic records
created, generated, sent, communicated, received, or stored by electronic
means that are capable of being printed as paper, or transferred to archival
media, without loss of content or material alteration of appearance. Court
records may be created or converted to electronic formats by the filer and
electronically filed with clerks of court who maintain them using electronic
document management systems. Court records that have been filed in paper
format may be converted to searchable electronic records using scanning
technology. Electronic court records shall constitute the official record and
are the equivalent to court records filed in paper.
Electronic Access to the Courts encompasses many levels of
information, functionality, and case processing conducted in the judicial
branch that may be completed by electronic means. Electronic access to
the courts may include technology that permits e-filing, electronic access
to documents, electronic calendaring, case management systems, records
management systems, statistics, resource management systems, and
e-commerce.
2.0. MICHIGAN COURTS E-FILING MANAGER
The Michigan Courts E-Filing Manager shall provide a single uniform
processing point for all court e-filings. The E-Filing Manager shall be
developed in compliance with e-filing court rules and these standards and
to maintain interfaces with other existing statewide information systems.
2.1. E-Filing Manager Functionality
The E-Filing Manager shall have the following minimum functional-
ity:
Phase I — January 2014
1. Utilize XML ECF 4.0. Standards
2. Accommodate bi-directional transmissions to/from courts
3. Accept electronic forms of payment
4. Consolidated electronic notification section
Phase II - TBD
1. Automated interface with other e-filing systems
2. Process for local validation
3. Process for nonattorneys and for self-represented users to access
the system
Phase III — TBD
1. Integrate with other established statewide systems
2. Single statewide login
3. Uniform authentication method
4. Single point of access
3.0 ELECTRONIC TRANSMISSION/FILING OF DOCUMENTS
In accordance with Michigan Court Rules 1.109(C)(1) and 2E.003, a
court must apply to the Supreme Court for authorization to accept the
electronic transmission/filing of documents.
3.1.1. Uniform Personal Identification
Each person using an e-filing system must have a unique identifier.
1242 493 M
ICHIGAN
R
EPORTS
3.1.2. Security
Any computer utilized to accept e-filings, particularly from sources
external to the court, must be protected from unauthorized network
intrusions, viruses, and worms, and must be isolated from other court
networks or applications. Software and security devices such as antivirus
software, firewalls, access control lists, and other filters must be utilized.
Media capable of carrying viruses into court and clerk of court computers
(e.g., computer networks and electronic media) must be scanned for
viruses before processing.
3.1.3. Filing Process and Payment
The statewide E-Filing Manager (EFM) shall establish a means to
accept payments of fees, fines, surcharges, and other financial obligations
electronically, including the processing of applications to waive fees.
3.1.4. Remedy for Failure of Electronic Processes
Procedures for resolving controversies arising from the electronic
filing process should be provided by the court. The e-filing system
provider must maintain a record as required by MCR 2E.102 for
reference in the event of controversy.
3.1.5. Retransmission of Electronic Filing
If, within 24 hours after filing information electronically, the filer
discovers that the version of the document available for viewing through
the Electronic Filing System is incomplete, garbled or otherwise does not
depict the document as transmitted, the filer shall notify the clerk of
court immediately and retransmit the filing if necessary.
3.1.6. Document Format
Any information that will become part of, or is related to, a court case
file, and which is being transmitted electronically to the clerk of the court
must be in a format that can be rendered with high fidelity to originals
and is searchable.
3.1.7. Data Accompanying Submitted Documents
At a minimum, filers are required to transmit data identifying a
submitted document, the case number, and fee information. If the
document is initiating a new case, the filer must comply with captioning
requirements in the Michigan Court Rules.
3.1.8. Embedded Hyperlinks
Each filed document must be self-contained. Hyperlinks embedded
within a submission must refer only to information within the same
document.
3.1.9. Non-Electronic Materials
Courts must accommodate the filing of materials that cannot be filed
electronically.
3.1.10. Accommodation of Paper Submissions
Documents that are submitted in paper form shall be converted to an
electronic format (i.e. a searchable document) to facilitate the creation of
a single electronic case file.
3.1.11. Documents Exempt from Public Access
All filers must comply with the privacy/confidentiality provisions of
Michigan Supreme Court Administrative Order No. 2006-2, Michigan
S
PECIAL
O
RDERS
1243
Court Rules, the Michigan Trial Court Case File Management Standards,
and federal and state statutes. These requirements apply to all docu-
ments, including attachments.
3.1.12. Court Control of Records and Data Associated with
Transmission of Records
Any record maintained by a vendor of an electronic document
management system or an electronic filing system provider, or any data
created by an electronic filing system provider during the transmission of
records to the courts, is a court record as defined in MCR 1.109 and
belongs to the court and shall not be sold, transferred, or otherwise used
by the vendor or provider except as permitted by the Michigan Court
Rules and these standards. A court may not enter into a contract with a
vendor or provider to sell, transfer, or otherwise use a court record
without the approval of the State Court Administrative Office. This
standard also applies to records that are being maintained by an
electronic filing system provider or other vendor for purposes of elec-
tronic service of those records.
3.1.13. Accessibility
In designing an e-filing system, courts shall take reasonable steps to
make accommodations for the unique needs of indigent, self-represented,
limited-English proficiency, disabled, or illiterate persons.
3.1.14. System Availability and Recovery Planning
Computer systems that are used for e-filing must protect electroni-
cally filed documents against system and security failures during periods
of system availability. Additionally, contingencies for system failures and
disaster recovery mechanisms must be established. Scheduled downtime
for maintenance and updates should be planned, and a notification shall
be provided to filers in advance of the outage.
Comment: These proposed standards provide additional guidance for
courts planning for implementation of e-filing in their jurisdiction. The
proposed standards are published to provide a context for the proposed
e-filing rules and proposed administrative order that have also been
published for comment in this file.
P
ROPOSED
A
MENDMENTS OF
R
ULES
3.210, 3.215, and 6.104
OF THE
M
ICHIGAN
C
OURT
R
ULES AND
P
ROPOSED
N
EW
R
ULE
8.124
OF THE
M
ICHIGAN
C
OURT
R
ULES
.
On order of the Court, this is to advise that the Court is considering
adoption of Rule 8.124 and amendments of Rules 3.210, 3.215, and 6.104
of the Michigan Court Rules. Before determining whether the proposal
should be adopted, changed before adoption, or rejected, this notice is
given to afford interested persons the opportunity to comment on the
form or the merits of the proposal or to suggest alternatives. The Court
welcomes the views of all. This matter also will be considered at a public
hearing. The notices and agendas of public hearings are posted at
<http://courts.mi.gov/courts/michigansupremecourt/rules/pages/public-
administrative-hearings.aspx.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
1244 493 M
ICHIGAN
R
EPORTS
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
3.210. H
EARINGS AND
T
RIALS
.
(A) In General.
(1)-(3) [Unchanged.]
(4 )Testimony must be taken in person, except that the court may
allow testimony to be taken by telephone or other electronically reliable
means, in extraordinary circumstances, or under MCR 8.124.
(B)-(D) [Unchanged.]
R
ULE
3.215. D
OMESTIC
R
ELATIONS
R
EFEREES
.
(A)-(C) [Unchanged.]
(D )Conduct of Referee Hearings
(1)-(2) [Unchanged.]
(3) Testimony must be taken in person, except that, for good cause, a
referee may allow testimony to be taken by telephone for good cause, or
under MCR 8.124.or other electronically reliable means.
(4) [Unchanged.]
(E)-(G) [Unchanged.]
R
ULE
6.104. A
RRAIGNMENT ON THE
W
ARRANT OR
C
OMPLAINT
.
(A) Arraignment Without Unnecessary Delay. Unless released before-
hand, an arrested person must be taken without unnecessary delay
before a court for arraignment in accordance with the provisions of this
rule, or must be arraigned without unnecessary delay by use of two-way
interactive video technology under MCR 8.124in accordance with MCR
6.006(A).
(B) Place of Arraignment. An accused arrested pursuant to a warrant
must be taken to a court specified in the warrant. An accused arrested
without a warrant must be taken to a court in the judicial district in
which the offense allegedly occurred. If the arrest occurs outside the
county in which these courts are located, the arresting agency must make
arrangements with the authorities in the demanding county to have the
accused promptly transported to the latter county for arraignment in
accordance with the provisions of this rule. If prompt transportation
cannot be arranged, the accused must be taken without unnecessary
delay before the nearest available court for preliminary appearance in
accordance with subrule (C). In the alternative, the provisions of this
subrule may be satisfied by use of two-way interactive video technology
under MCR 8.124 in accordance with MCR 6.006(A).
(C)-(G) [Unchanged.]
[MCR 8.124 is a proposed new rule.]
R
ULE
8.124. V
IDEOCONFERENCING
.
(A) Definitions. In this subchapter:
(1) “Participants” include, but are not limited to, parties, counsel, and
subpoenaed witnesses, but does not include the general public.
S
PECIAL
O
RDERS
1245
(2) “Videoconferencing” means the use of an interactive technology
that sends video, voice, and data signals over a transmission circuit so
that two or more individuals or groups can communicate with each other
simultaneously using video codecs, monitors, cameras, audio micro-
phones, and audio speakers.
(B) Application.
(1) Subject to standards published by the State Court Administrative
Office and the criteria set forth in subsection (C), a court may, at the
request of any participant, or sua sponte, allow the use of videoconfer-
encing technology by any participant in any court-scheduled proceeding.
(2) Subject to State Court Administrative Office standards, courts
may determine the manner and extent of the use of videoconferencing
technology.
(3) In criminal trials and evidentiary hearings that occur as part of a
criminal trial, the defendant shall either be physically present in the
courtroom or shall consent to the use of videoconferencing technology for
participation. In all other court proceedings that relate to criminal
matters, the court may determine whether to use videoconferencing
technology for the defendant’s participation. In delinquency adjudica-
tions and evidentiary hearings that occur as part of a delinquency
adjudication, the juvenile shall either be physically present in the
courtroom or a parent, guardian, or the attorney for the juvenile shall
consent to the use of videoconferencing technology for the juvenile’s
participation.
(4) This rule does not supersede a participant’s ability to participate
by telephonic means under MCR 2.402.
(C) Criteria for Videoconferencing. In determining in a particular case
whether to permit the use of videoconferencing technology and the
manner of proceeding with videoconferencing, the court shall consider
the following factors:
(1) The capabilities of the court’s videoconferencing equipment.
(2) Whether any undue prejudice would result.
(3) The convenience of the parties and the proposed witness, and the
cost of producing the witness in person in relation to the importance of
the offered testimony.
(4) Whether the procedure would allow for full and effective cross-
examination, especially when the cross-examination would involve docu-
ments or other exhibits.
(5) Whether the dignity, solemnity, and decorum of the courtroom
would tend to impress upon the witness the duty to testify truthfully.
(6) Whether a physical liberty or other fundamental interest is at
stake in the proceeding.
(7) Whether the court is satisfied that it can sufficiently control the
proceedings at the remote location so as to effectively extend the
courtroom to the remote location.
(8) Whether the use of videoconferencing technology presents the
person at a remote location in a diminished or distorted sense that
negatively reflects upon the individual at the remote location to persons
present in the courtroom.
1246 493 M
ICHIGAN
R
EPORTS
(9) Whether the use of videoconferencing technology diminishes or
detracts from the dignity, solemnity, and formality of the proceeding and
undermines the integrity, fairness, or effectiveness of the proceeding.
(10) Whether the person appearing by videoconferencing technology
presents a significant security risk to transport and be present physically
in the courtroom.
(11) Whether the parties or witness(es) have waived personal appear-
ance or stipulated to videoconferencing.
(12) The proximity of the videoconferencing request date to the
proposed appearance date.
(13) Any other factors that the court may determine to be relevant.
(D) Request for videoconferencing.
(1) A participant who requests the use of videoconferencing technol-
ogy shall ensure that the equipment available at the remote location
meets the technical and operational standards established by the State
Court Administrative Office.
(2) A participant who requests the use of videoconferencing technol-
ogy must provide the court with the videoconference dialing information
and the participant’s contact information in advance of the court date
when videoconferencing technology will be used.
(3) There is no motion fee for requests submitted under this rule.
(E) Objections. The court shall rule on an objection to the use of
videoconferencing under the factors set forth under Subsection C.
(F) Mechanics of Videoconferencing. The use of any videoconferencing
technology must be conducted in accordance with standards published by
the State Court Administrative Office. All proceedings at which video-
conferencing technology is used must be recorded verbatim by the court
with the exception of hearings that are not required to be recorded by law.
Staff Comment: The new court rule would allow courts to use
videoconferencing in court proceedings upon request of a participant or
sua sponte by the court, subject to specified criteria and standards
published by the State Court Administrative Office (SCAO). Amend-
ments of MCR 3.210, MCR 3.215, and MCR 6.104 would be necessary to
include references to the new court rule. If the new rule is ultimately
adopted, MCR 3.904, MCR 5.738a, and MCR 6.006, and Administrative
Order No. 2007-01 would be rescinded. To provide context for consider-
ation of the proposed rule, the proposed standards for the use of
videoconferencing are attached below. In addition, the proposal includes
a draft administrative order that would require SCAO to adopt videocon-
ferencing standards, and require courts to comply with those standards.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and
to the State Court Administrator so that they can make the notifications
specified in MCR 1.201. Comments on the proposal may be sent to the
Supreme Court Clerk in writing or electronically by September 1, 2013 at
filing a comment, please refer to ADM File No. 2013-18. Your comments
S
PECIAL
O
RDERS
1247
and the comments of others will be posted at <http://
courts.mi.gov/courts/michigansupremecourt/rules/court-rules-admin-
matters/pages/default.aspx>, under the chapter affected by the proposed
amendment or the proposed new rule.
STANDARDS FOR USE OF VIDEOCONFERENCING TECH-
NOLOGY IN COURTS
1. Interactive video technology equipment must be capable for 30fps.
A preferred video quality is 4CIF or better, but resolution quality is at the
discretion of the local court.
2. Either over the air or direct in-line court recording may be used.
3. Participants shall be able to see, hear, and communicate with each
other.
4. Participants shall be able to see, hear, and otherwise observe any
physical evidence or exhibits presented during the proceeding.
5. Video and sound quality shall be sufficient to allow participants to
observe the demeanor and nonverbal communications of other partici-
pants. Sound quality shall be sufficient to clearly hear what is taking
place in the courtroom to the same extent as if the participant was
present in the courtroom.
6. Courtroom camera(s) shall have the capability to scan the court-
room so that remote participants may observe other persons present and
activities taking place in the courtroom during the proceedings.
7. In criminal matters, counsel for a defendant shall have the option
to be physically present with the client at the remote location, and the
facilities at the remote location shall be able to accommodate counsel’s
participation in the proceeding from the remote location. Parties and
counsel at remote locations shall be able to mute the microphone system
at that location so that they may have private, confidential communica-
tion.
8. In criminal matters, if the defendant and counsel are not in each
other’s physical presence, they shall be able to have private, confidential
communication during the proceeding.
9. If applicable, there shall be a means by which documents can be
transmitted between the courtroom and the remote location.
P
ROPOSED
A
MENDMENTS OF
MCR 9.221.
On order of the Court, this is to advise that the Court is considering
an amendment of Rule 9.221 of the Michigan Court Rules. Before
determining whether the proposal should be adopted, changed before
adoption, or rejected, this notice is given to afford interested persons the
opportunity to comment on the form or the merits of the proposal or to
suggest alternatives. The Court welcomes the views of all. This matter
also will be considered at a public hearing. The notices and agendas for
public hearings are posted at <http://www.courts.mi.gov/courts/
michigansupremecourt/rules/pages/public-administrative-hearings.aspx>.
Publication of this proposal does not mean that the Court will issue an
order on the subject, nor does it imply probable adoption of the proposal
in its present form.
1248 493 M
ICHIGAN
R
EPORTS
[Additions to the text are indicated in underlining
and deleted text is shown by strikeover.]
R
ULE
9.221. C
ONFIDENTIALITY
;D
ISCLOSURE
.
(A)-(H) [Unchanged.]
(I) Disclosure to Chief Judge. Nothwithstanding the prohibition
against disclosure in this rule, and except for those situations that
involve a dismissal with explanation, the commission shall notify the
chief judge of a court when the commission has taken action under MCR
9.207(B)(2)-(5) involving a magistrate or referee of that court. Upon the
chief judge’s request, the referee or magistrate shall provide the chief
judge with a copy of the commission’s written notice of disposition.
Staff Comment: The proposed amendment of MCR 9.221 would add a
new subrule (I) that would require the Judicial Tenure Commission to
notify a court’s chief judge if a referee or magistrate is subject to a
corrective action that does not rise to the level of a formal complaint,
including a letter of caution, a conditional dismissal, an admonishment,
or a recommendation for private censure. The new requirement would
not apply to a dismissal with explanation.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar
and to the State Court Administrator so that they can make the
notifications specified in MCR 1.201. Comments on the proposal may
be sent to the Supreme Court Clerk in writing or electronically by
September 1, 2013, at P.O. Box 30052, Lansing, MI 48909, or
ADM File No. 2012-06. Your comments and the comments of others
will be posted under the chapter affected by this proposal at
<http://courts.mi.gov/michigansupremecourt/rules/court-rules-admin-
matters/pages/chapter-9-professional-disciplinary-proceedings.aspx>.
S
PECIAL
O
RDERS
1249
INDEX-DIGEST
INDEX–DIGEST
ACQUISITION OF MORTGAGES—See
M
ORTGAGES
1
ACTIONS
W
HISTLEBLOWERS’
P
ROTECTION
A
CT
1. Under the Whistleblowers’ Protection Act, a plaintiff
may establish a prima facie case by showing that (1) the
plaintiff was engaged in protected activity as defined by
the act, (2) the defendant took an adverse employment
action against the plaintiff, and (3) a causal connection
exists between the protected activity and the adverse
employment action; absent direct evidence of retalia-
tion, a plaintiff must rely on indirect evidence of his or
her employer’s unlawful motivations to show that a
causal link exists between the whistleblowing act and
the employer’s adverse employment action; something
more than a temporal connection between protected
conduct and an adverse employment action is required
to show causation when retaliation is claimed; it is
reasonable to infer that the more knowledge the em-
ployer has of the protected activity, the greater the
possibility of an impermissible motivation for the ad-
verse employment action (MCL 15.361 et seq.). Debano-
Griffin v Lake County, 493 Mich 167.
2. Once a plaintiff establishes a prima facie case of retaliation
under the Whistleblowers’ Protection Act, a presumption
of retaliation arises; the employer might be entitled to
summary disposition, however, if it offers a legitimate
reason for its action and the plaintiff fails to show that a
reasonable fact-finder could still conclude that his or her
protected activity was a motivating factor for the employ-
er’s adverse action; a plaintiff must not merely raise a
triable issue that the employer’s proffered reason was
1379
pretextual, but must raise the issue that it was pretext for
unlawful retaliation; a plaintiff can establish that a defen-
dant’s stated legitimate, nondiscriminatory reasons are
pretexts (1) by showing that the reasons had no basis in
fact, (2) if they have a basis in fact, by showing that they
were not the actual factors motivating the decision, or (3)
if they were factors, by showing that they were jointly
insufficient to justify the decision; the soundness of an
employer’s business judgment, however, may not be ques-
tioned as a means of showing pretext (MCL 15.361 et seq.).
Debano-Griffin v Lake County, 493 Mich 167.
3. The Whistleblowers’ Protection Act expressly waives leg-
islative immunity, making the act fully applicable to public
employers; the question whether a legislative body has
lawfully exercised its authority when taking an adverse
employment action is subject to judicial review (MCL
15.361 et seq.). Debano-Griffin v Lake County, 493 Mich
167.
ADMINISTERING MARIJUANA DEFINED—See
C
ONTROLLED
S
UBSTANCES
7
ADMISSIBILITY OF OTHER-ACTS EVIDENCE—See
C
ONSTITUTIONAL
L
AW
3
ADVERSE EMPLOYMENT ACTIONS—See
A
CTIONS
1, 2, 3
M
ASTER AND
S
ERVANT
1
AFFIRMATIVE DEFENSES—See
C
ONTROLLED
S
UBSTANCES
4, 8
AFTER-BORN CHILDREN—See
P
ARENT AND
C
HILD
1
APPEAL—See
D
RAINS
1
APPLICABILITY OF THE AFFIRMATIVE
DEFENSE—See
C
ONTROLLED
S
UBSTANCES
8
ASSESSMENTS—See
D
RAINS
2
1380 493 M
ICHIGAN
R
EPORTS
ASSIGNMENT OF MORTGAGES—See
M
ORTGAGES
1
ASSISTANCE OF COUNSEL—See
C
ONSTITUTIONAL
L
AW
1
E
STOPPEL
1
ASSISTED REPRODUCTIVE TECHNOLOGY—See
P
ARENT AND
C
HILD
1
ASSISTING REGISTERED QUALIFYING PATIENTS
WITH USING OR ADMINISTERING MARIJUANA—See
C
ONTROLLED
S
UBSTANCES
7
AUTOMOBILES—See
I
NSURANCE
1
BAILMENTS—See
C
RIMINAL
L
AW
2
BUSINESS-JUDGMENT RULE—See
A
CTIONS
2
CAUSAL CONNECTION BETWEEN INJURIES—See
I
NSURANCE
1
CAUSAL CONNECTION BETWEEN PROTECTED
ACTIVITY AND ADVERSE EMPLOYMENT
ACTIONS—See
A
CTIONS
1
CAUSATION—See
I
NSURANCE
1
CERTIORARI REVIEW—See
D
RAINS
1
CODE OF CRIMINAL PROCEDURE—See
C
ONSTITUTIONAL
L
AW
3
COLLATERAL ESTOPPEL—See
E
STOPPEL
1
I
NDEX
-D
IGEST
1381
COMMON LAW—See
D
AMAGES
1
CONFESSIONS—See
C
ONSTITUTIONAL
L
AW
2
CONSTITUTIONAL LAW
E
FFECTIVE
A
SSISTANCE OF
C
OUNSEL
1. Both the Michigan and United States Constitutions
require that a criminal defendant enjoy the assistance of
counsel for his or her defense; in order to obtain a new
trial, a defendant must show that (1) counsel’s perfor-
mance fell below an objective standard of reasonable-
ness and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome would
have been different; in examining whether defense
counsel’s performance fell below an objective standard
of reasonableness, a defendant must overcome the
strong presumption that counsel’s performance was
born from a sound trial strategy, but a court cannot
insulate review of counsel’s performance by calling it
trial strategy; the court must determine whether de-
fense counsel made the strategic choices after less than
complete investigation, and any choice is reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation (US
Const, Am VI; Const 1963, art 1, § 20). People v Trakht-
enberg, 493 Mich 38.
S
ELF
-I
NCRIMINATION
2. Under the Fifth Amendment of the United States Con-
stitution, no person shall be compelled in any criminal
case to be a witness against himself or herself; the
United States Supreme Court has held that to protect
that right, when the police continue to interrogate a
suspect in custody after the suspect has invoked the
right to remain silent and the suspect confesses as a
result of the interrogation, the confession is inadmis-
sible; the term “interrogation” refers not only to express
questioning, 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; a police officer’s expression of concern
about the location of a firearm involved in the crime
1382 493 M
ICHIGAN
R
EPORTS
being investigated does not necessarily constitute inter-
rogation; a suspect’s youth and inexperience with the
criminal justice system do not necessarily render the
suspect peculiarly susceptible to a particular form of
persuasion (US Const, Am V). People v White, 493 Mich
187.
S
UPREME
C
OURT
3. MCL 768.27b, which in certain instances expands the
admissibility of domestic-violence other-acts evidence
beyond the scope permitted by MRE 404(b)(1), does not
infringe on the Supreme Court’s authority to establish
rules of practice and procedure under article 6, § 5 of the
1963 Michigan Constitution. People v Mack, 493 Mich 1.
CONTRABAND—See
C
RIMINAL
L
AW
2, 3
CONTROLLED SUBSTANCES
M
ARIJUANA
1. The Michigan Medical Marihuana Act (MMMA) pro-
vides an exception to the Public Health Code’s prohibi-
tion of the use of controlled substances by permitting
the medical use of marijuana when carried out in
accordance with the MMMA’s provisions; § 4(b) of the
act, MCL 333.26424(b), limits the amount of marijuana
that a registered primary caregiver may possess and still
be entitled to immunity under § 4; § 4(b)(2) limits the
number of marijuana plants that a registered primary
caregiver may possess to 12 plants for each registered
qualifying patient connected to the primary caregiver
through the state’s registration process; § 4(a) of the
act, MCL 333.26424(a), concerns registered qualifying
patients and contains similar limitations on the posses-
sion of marijuana plants; only one of two people may
possess a patient’s 12 marijuana plants for purposes of
immunity under §§ 4(a) and 4(b): the registered quali-
fying patient himself or herself if the patient has not
specified that a primary caregiver be allowed to cultivate
the patient’s plants or the patient’s registered primary
caregiver if the patient has specified that a primary
caregiver be allowed to cultivate the patient’s plants.
People v Bylsma, 493 Mich 17.
2. The Michigan Medical Marihuana Act incorporates the
definition of possession of controlled substances used in
I
NDEX
-D
IGEST
1383
longstanding Michigan law; the essential inquiry is
whether there is a sufficient nexus between the defen-
dant and the contraband, including whether the defen-
dant exercised dominion and control over it (MCL
333.26421 et seq.). People v Bylsma, 493 Mich 17.
3. For a patient or caregiver to receive immunity for
possession of marijuana plants under § 4 of the Michi-
gan Medical Marihuana Act, MCL 333.26424, the plants
must be kept in an enclosed, locked facility; the facility
must be such that it allows only one person to possess
the marijuana plants enclosed therein: the registered
qualifying patient himself or herself if the patient has
not specified that a primary caregiver be allowed to
cultivate the patient’s marijuana plants or the patient’s
registered primary caregiver if the patient has specified
that a primary caregiver be allowed to cultivate the
patient’s plants (MCL 333.26423[c] and MCL
333.26424[b][2]). People v Bylsma, 493 Mich 17.
4. To establish the elements of the affirmative defense in
§ 8 of the Michigan Medical Marihuana Act, MCL
333.26428, a defendant need not establish the elements
for entitlement to immunity under § 4 of the act, MCL
333.26424; as long as the defendant can establish the
elements of the § 8 defense and none of the circum-
stances in § 7(b) of the act, MCL 333.26427(b), exists,
the defendant is entitled to dismissal of criminal
charges. People v Bylsma, 493 Mich 17.
5. The Michigan Medical Marihuana Act authorizes the
medical use of marijuana to the extent that it is carried
out in accordance with the provisions of the act; § 3(e) of
the act, MCL 333.26423(e), defines “medical use”
broadly to include the transfer of marijuana to treat or
alleviate a registered qualifying patient’s debilitating
medical condition or symptoms associated with the
debilitating medical condition; because a transfer is any
mode of disposing of or parting with an asset or an
interest in an asset, including the payment of money, the
definition of “medical use” includes sales of marijuana.
Michigan v McQueen, 493 Mich 135.
6. Section 4 of the Michigan Medical Marihuana Act, MCL
333.26424, sets forth the requirements for a person to
be entitled to immunity for the medical use of mari-
juana; to be eligible for immunity under § 4, a registered
qualifying patient must be engaging in marijuana-
1384 493 M
ICHIGAN
R
EPORTS
related conduct for the purpose of alleviating the pa-
tient’s own debilitating medical condition or symptoms
associated with that condition; § 4 does not authorize a
registered qualifying patient to transfer marijuana to
another registered qualifying patient; similarly, to be
eligible for § 4 immunity, a registered primary caregiver
must be engaging in marijuana-related conduct for the
purpose of alleviating the debilitating medical condition,
or symptoms associated with the medical condition, of a
registered qualifying patient to whom the caregiver is
connected through the registration process of Michi-
gan’s Department of Community Health; § 4 does not
offer immunity to a registered primary caregiver who
transfers marijuana to anyone other than a registered
qualifying patient to whom the caregiver is connected
through the state’s registration process. Michigan v
McQueen, 493 Mich 135.
7. Section 4(i) of the Michigan Medical Marihuana Act,
MCL 333.26424(i), permits any person to assist a regis-
tered qualifying patient with using or administering
marijuana, but the terms “using” and “administering”
are limited to conduct involving the actual ingestion of
marijuana. Michigan v McQueen, 493 Mich 135.
8. The affirmative defense of § 8 of the Michigan Medical
Marihuana Act, MCL 333.26428, applies only to crimi-
nal prosecutions involving marijuana, subject to limited
exceptions contained in § 8(c) for disciplinary action by
a business or occupational or professional licensing
board or bureau or forfeiture of any interest in or right
to property. Michigan v McQueen, 493 Mich 135.
CRIMINAL DEFENSES—See
C
ONTROLLED
S
UBSTANCES
4, 8
CRIMINAL LAW
See, also,
C
ONSTITUTIONAL
L
AW
1, 3
C
ONTROLLED
S
UBSTANCES
1, 2, 3, 4, 5, 6, 7, 8
E
STOPPEL
1
C
RIMINAL
S
EXUAL
C
ONDUCT
1. The elements of first-degree criminal sexual conduct under
MCL 750.520b(1)(b)(ii) are (1) a sexual penetration, (2) a
victim who is at least 13 but less than 16 years of age, and
(3) a relationship by blood or affinity to the fourth degree
I
NDEX
-D
IGEST
1385
between the victim and the defendant; a relationship by
blood means a relationship between persons arising by
descent from a common ancestor or a relationship by birth
rather than marriage; the civil presumption of legitimacy
cannot be used to establish a relationship by blood under
the statute when DNA evidence establishes that the de-
fendant and the victim are not related by blood. People v
Zajaczkowski, 493 Mich 6.
W
EAPONS
2. Under MCL 750.224f(2), the felon-in-possession statute,
persons convicted of specified felonies may not possess,
use, transport, sell, purchase, carry, ship, receive, or
distribute a firearm in this state until certain conditions
have been met; however, the statute does not sever a
felon’s ownership interest in his or her firearms; when a
police department lawfully seizes noncontraband fire-
arms belonging to a felon, the police department be-
comes a constructive bailee of the firearms; the felon-
in-possession statute prevents the police department
from delivering those firearms to the designated agent
of the convicted felon, but the statute does not prevent
a court from appointing a successor bailee to maintain
possession of the felon’s weapons during his or her
period of legal incapacity. People v Minch, 493 Mich 87.
3. When analyzing a due process claim, courts first ask
whether there exists a liberty or property interest of
which a person has been deprived and, if so, whether the
procedures followed by the state were constitutionally
sufficient; with regard to depriving a felon of his or her
possessory interest in noncontraband firearms under
the felon-in-possession statute, MCL 750.224f, the felon
receives all the process to which the felon is due when he
or she is convicted of the underlying felony. People v
Minch, 493 Mich 87.
CRIMINAL PROCEDURE CODE—See
C
ONSTITUTIONAL
L
AW
3
CRIMINAL SEXUAL CONDUCT—See
C
RIMINAL
L
AW
1
CROSS-OVER ESTOPPEL—See
E
STOPPEL
1
1386 493 M
ICHIGAN
R
EPORTS
CUSTODIAL INTERROGATIONS—See
C
ONSTITUTIONAL
L
AW
2
DAMAGES
N
ONECONOMIC
D
AMAGES
1. The common-law rule in cases involving the negligent
destruction of or damage to property is that the appropri-
ate measure of damages is the cost of replacement or
repair of the property; noneconomic damages are not
recoverable for the negligent destruction of or damage to
property. Price v High Pointe Oil Co, Inc, 493 Mich 238.
DECEASED PARENTS—See
P
ARENT AND
C
HILD
1
DEFECTS IN FORECLOSURE BY
ADVERTISEMENT—See
M
ORTGAGES
2
DEFENSES—See
C
ONTROLLED
S
UBSTANCES
4, 8
DEPRIVATION OF POSSESSORY INTEREST IN
WEAPONS—See
C
RIMINAL
L
AW
2, 3
DESTRUCTION OF OR DAMAGE TO PROPERTY—See
D
AMAGES
1
DOMESTIC-VIOLENCE CASES—See
C
ONSTITUTIONAL
L
AW
3
DRAIN CODE—See
D
RAINS
1
DRAINS
D
RAIN
C
ODE
1. The remedy for failure to comply with the technical
requirements of the Drain Code is certiorari review; a
failure to follow the requirements of the Drain Code will
not warrant the exercise of equitable jurisdiction unless
the failure is so egregious that it implicates constitu-
I
NDEX
-D
IGEST
1387
tional concerns (MCL 280.1 et seq.). Elba Twp v Gratiot
County Drain Comm’r, 493 Mich 265.
P
ROJECTS
2. After a petition for maintenance or improvement of a
drain or the consolidation of drainage districts is sub-
mitted, the county drain commissioner may appoint a
board of determination to determine whether the main-
tenance or improvement or the consolidation is neces-
sary and conducive to public health, convenience, or
welfare; property owners who might be assessed for a
drainage project are not constitutionally entitled to
notice regarding a hearing on the necessity and condu-
civeness of the drainage project; they are constitution-
ally entitled, however, to notice regarding assessment
proceedings for the drainage project (US Const, Am XIV;
Const 1963, art 1, § 17; MCL 280.1 et seq.). Elba Twp v
Gratiot County Drain Comm’r, 493 Mich 265.
DUE PROCESS—See
C
RIMINAL
L
AW
3
D
RAINS
2
EFFECTIVE ASSISTANCE OF COUNSEL—See
C
ONSTITUTIONAL
L
AW
1
E
STOPPEL
1
ELEMENTS OF COLLATERAL ESTOPPEL—See
E
STOPPEL
1
EMPLOYER’S KNOWLEDGE OF PROTECTED
ACTIVITY—See
A
CTIONS
1
EMPLOYERS AND EMPLOYEES—See
A
CTIONS
1, 2, 3
EMPLOYMENT—See
M
ASTER AND
S
ERVANT
1
ENCLOSED, LOCKED FACILITY—See
C
ONTROLLED
S
UBSTANCES
3
EQUITABLE REMEDIES—See
D
RAINS
1
1388 493 M
ICHIGAN
R
EPORTS
EQUITY—See
E
STOPPEL
1
ESTATES AND PROTECTED INDIVIDUALS
CODE—See
P
ARENT AND
C
HILD
1
ESTOPPEL
C
OLLATERAL
E
STOPPEL
1. Generally, the proponent of the application of collateral
estoppel must show that (1) a question of fact essential
to the judgment was actually litigated and determined
by a valid and final judgment, (2) the same parties had
a full and fair opportunity to litigate the issue, and (3)
there was mutuality of estoppel; in determining
whether the party opposing collateral estoppel had a full
and fair opportunity to adjudicate his or her claim, a
court must take into consideration the choice of forum
and the incentive to litigate; collateral estoppel may not
be applied in a subsequent criminal proceeding on the
basis of a prior civil judgment holding that defense
counsel’s performance did not amount to malpractice in
order to preclude review of a criminal defendant’s claim
of ineffective assistance of counsel. People v Trakhten-
berg, 493 Mich 38.
EVIDENCE—See
C
ONSTITUTIONAL
L
AW
3
C
RIMINAL
L
AW
1
EXPRESS QUESTIONING OR ITS FUNCTIONAL
EQUIVALENT—See
C
ONSTITUTIONAL
L
AW
2
FEDERAL DEPOSIT INSURANCE CORPORATION—See
M
ORTGAGES
1
FELONS IN POSSESSION OF FIREARMS—See
C
RIMINAL
L
AW
2, 3
FIFTH AMENDMENT—See
C
ONSTITUTIONAL
L
AW
2
I
NDEX
-D
IGEST
1389
FIREARMS—See
C
RIMINAL
L
AW
2, 3
FIRST-DEGREE CRIMINAL SEXUAL CONDUCT—See
C
RIMINAL
L
AW
1
FORECLOSURE BY ADVERTISEMENT—See
M
ORTGAGES
2
FOURTEENTH AMENDMENT—See
D
RAINS
2
FULL AND FAIR OPPORTUNITY TO ADJUDICATE
THE CLAIM—See
E
STOPPEL
1
FUNCTIONAL EQUIVALENT OF QUESTIONING—See
C
ONSTITUTIONAL
L
AW
2
HEIRS—See
P
ARENT AND
C
HILD
1
IMMUNITY—See
C
ONTROLLED
S
UBSTANCES
1, 3, 4, 6
INDIRECT EVIDENCE OF EMPLOYER’S UNLAWFUL
MOTIVATIONS—See
A
CTIONS
1
INEFFECTIVE ASSISTANCE OF COUNSEL—See
C
ONSTITUTIONAL
L
AW
1
E
STOPPEL
1
INHERITANCE—See
P
ARENT AND
C
HILD
1
INSURANCE
N
O
-F
AULT
1. McPherson v McPherson, 493 Mich 294.
INTERROGATIONS—See
C
ONSTITUTIONAL
L
AW
2
1390 493 M
ICHIGAN
R
EPORTS
INTESTATE INHERITANCE—See
P
ARENT AND
C
HILD
1
INVESTIGATION BY DEFENSE COUNSEL—See
C
ONSTITUTIONAL
L
AW
1
JUDICIAL REVIEW OF ADVERSE EMPLOYMENT
ACTIONS—See
A
CTIONS
3
LABOR RELATIONS—See
M
ASTER AND
S
ERVANT
1
LEGAL MALPRACTICE—See
E
STOPPEL
1
LEGITIMATE, NONDISCRIMINATORY REASONS
FOR ADVERSE EMPLOYMENT ACTION—See
A
CTIONS
2
LIMITATIONS ON INVESTIGATION BY DEFENSE
COUNSEL—See
C
ONSTITUTIONAL
L
AW
1
MALPRACTICE—See
E
STOPPEL
1
MARIJUANA—See
C
ONTROLLED
S
UBSTANCES
1, 2, 3, 4, 5, 6, 7, 8
MARIJUANA PLANTS—See
C
ONTROLLED
S
UBSTANCES
1, 3
MASTER AND SERVANT
L
ABOR
R
ELATIONS
1. To establish a prima facie case under the Whistleblow-
ers’ Protection Act, MCL 15.361 et seq., a plaintiff must
show that (1) he or she was engaged in protected activity
as defined by the act, (2) he or she suffered an adverse
employment action, and (3) a causal connection exists
between the protected activity and the adverse employ-
ment action; a plaintiff’s motivation is not relevant to
the issue whether the plaintiff has engaged in protected
I
NDEX
-D
IGEST
1391
activity, and proof of primary motivation is not a pre-
requisite to bringing a claim under the act. Whitman v
City of Burton, 493 Mich 303.
MEDICAL MARIJUANA—See
C
ONTROLLED
S
UBSTANCES
1, 2, 3, 4, 5, 6, 7, 8
MEDICAL-USE DEFINED—See
C
ONTROLLED
S
UBSTANCES
5
MICHIGAN MEDICAL MARIHUANA ACT—See
C
ONTROLLED
S
UBSTANCES
1, 2, 3, 4, 5, 6, 7, 8
MICHIGAN RULES OF EVIDENCE—See
C
ONSTITUTIONAL
L
AW
3
MORTGAGES
A
CQUISITION OF
M
ORTGAGES
1. When a subsequent mortgagee acquires an interest in a
mortgage through a voluntary purchase agreement with
the Federal Deposit Insurance Corporation, acting in its
capacity as the conservator or receiver of a failed deposi-
tory institution, pursuant to 12 USC 1821(d)(2)(G)(i)(II),
the mortgage has not been acquired by operation of law
and the subsequent mortgagee must comply with the
provisions of MCL 600.3204 and record the assignment of
the mortgage before foreclosing on the mortgage by adver-
tisement. Kim v JPMorgan Chase Bank, NA, 493 Mich 98.
F
ORECLOSURE BY
A
DVERTISEMENT
2. Defects or irregularities in a foreclosure proceeding
result in a foreclosure that is voidable, not void ab initio;
to set aside a foreclosure-by-advertisement sale on the
basis of a failure to follow the foreclosure requirements
set forth in MCL 600.3204, the party claiming a defect
must demonstrate prejudice by showing that it would
have been in a better position to preserve its interest in
the property absent the other party’s statutory noncom-
pliance. Kim v JPMorgan Chase Bank, NA, 493 Mich 98.
T
RANSFER OF
M
ORTGAGES
3. The transfer of a mortgage occurs by operation of law
when it takes place unintentionally, involuntarily, or
through no affirmative action on the part of the trans-
feree. Kim v JPMorgan Chase Bank, NA, 493 Mich 98.
1392 493 M
ICHIGAN
R
EPORTS
MOTOR VEHICLES—See
I
NSURANCE
1
NEGLIGENCE—See
D
AMAGES
1
NO-FAULT—See
I
NSURANCE
1
NONECONOMIC DAMAGES—See
D
AMAGES
1
OBJECTIVE STANDARD OF REASONABLENESS IN
INEFFECTIVE-ASSISTANCE-OF-COUNSEL
CLAIMS—See
C
ONSTITUTIONAL
L
AW
1
OPERATION OF LAW DEFINED—See
M
ORTGAGES
3
OTHER-ACTS EVIDENCE—See
C
ONSTITUTIONAL
L
AW
3
PARENT AND CHILD
D
ECEASED
P
ARENTS
1. Children who are born after the death of a parent and
who were not in gestation at the time of the parent’s
death may not inherit from that parent under Michigan
intestacy law (MCL 700.1101 et seq.). People v Trakht-
enberg, 493 Mich 38.
PERSONAL PROTECTION INSURANCE
BENEFITS—See
I
NSURANCE
1
POSSESSION OF CONTROLLED SUBSTANCES
GENERALLY—See
C
ONTROLLED
S
UBSTANCES
2
POSSESSION OF FIREARMS—See
C
ONTROLLED
S
UBSTANCES
3
C
RIMINAL
L
AW
2
I
NDEX
-D
IGEST
1393
POSSESSION OF MARIJUANA PLANTS—See
C
ONTROLLED
S
UBSTANCES
1, 3
POWERS RESERVED TO THE SUPREME COURT—See
C
ONSTITUTIONAL
L
AW
3
PRESUMPTION OF LEGITIMACY—See
C
RIMINAL
L
AW
1
PRESUMPTION OF RETALIATION BY
EMPLOYER—See
A
CTIONS
2
PRETEXT FOR UNLAWFUL EMPLOYMENT
RETALIATION—See
A
CTIONS
2
PRIMA FACIE CASE UNDER WHISTLEBLOWERS’
PROTECTION ACT—See
A
CTIONS
1
PRIMA FACIE CASE—See
M
ASTER AND
S
ERVANT
1
PRIOR BAD ACTS—See
C
ONSTITUTIONAL
L
AW
3
PROJECTS—See
D
RAINS
2
PROPERTY—See
D
AMAGES
1
PROTECTED ACTIVITIES BY WHISTLEBLOWERS—See
M
ASTER AND
S
ERVANT
1
PUBLIC EMPLOYERS—See
A
CTIONS
3
RAPE—See
C
RIMINAL
L
AW
1
REAL PROPERTY—See
D
AMAGES
1
1394 493 M
ICHIGAN
R
EPORTS
RECORDATION—See
M
ORTGAGES
1
REGISTERED QUALIFYING PATIENTS AND
CAREGIVERS—See
C
ONTROLLED
S
UBSTANCES
6
RELATIONSHIP BY BLOOD TO THE FOURTH
DEGREE—See
C
RIMINAL
L
AW
1
REMEDIES—See
D
RAINS
1
REQUIREMENTS FOR IMMUNITY FOR MEDICAL
MARIHUANA—See
C
ONTROLLED
S
UBSTANCES
6
RETURN OF NONCONTRABAND SEIZED
FIREARMS—See
C
RIMINAL
L
AW
2
RIGHT AGAINST SELF-INCRIMINATION—See
C
ONSTITUTIONAL
L
AW
2
RULES OF EVIDENCE—See
C
ONSTITUTIONAL
L
AW
3
RULES OF PRACTICE AND PROCEDURE—See
C
ONSTITUTIONAL
L
AW
3
SALES OF MARIJUANA—See
C
ONTROLLED
S
UBSTANCES
5, 6
SELF-INCRIMINATION—See
C
ONSTITUTIONAL
L
AW
2
SEPARATION OF POWERS—See
C
ONSTITUTIONAL
L
AW
3
SIXTH AMENDMENT—See
C
ONSTITUTIONAL
L
AW
1
E
STOPPEL
1
I
NDEX
-D
IGEST
1395
SUBSEQUENT MORTGAGES—See
M
ORTGAGES
1
SUCCESSOR BAILEES—See
C
RIMINAL
L
AW
2
SUPERINTENDING CONTROL—See
D
RAINS
1
SUPREME COURT—See
C
ONSTITUTIONAL
L
AW
3
TORTS—See
D
AMAGES
1
TRANSFER OF MORTGAGES—See
M
ORTGAGES
3
TRIAL STRATEGY IN INEFFECTIVE-ASSISTANCE-
OF-COUNSEL CLAIMS—See
C
ONSTITUTIONAL
L
AW
1
UNDER WHISTLEBLOWERS’ ACT—See
M
ASTER AND
S
ERVANT
1
USE OF A MOTOR VEHICLE AS A MOTOR
VEHICLE—See
I
NSURANCE
1
USING MARIJUANA DEFINED—See
C
ONTROLLED
S
UBSTANCES
7
VICTIMS—See
C
RIMINAL
L
AW
1
VIOLATIONS OF DRAIN CODE—See
D
RAINS
1
VOIDABLE MORTGAGES—See
M
ORTGAGES
2
WAIVER OF LEGISLATIVE IMMUNITY UNDER
WHISTLEBLOWERS’ PROTECTION ACT—See
A
CTIONS
3
1396 493 M
ICHIGAN
R
EPORTS
WEAPONS—See
C
RIMINAL
L
AW
2, 3
WHISTLEBLOWERS’ PROTECTION ACT—See
A
CTIONS
1, 2, 3
M
ASTER AND
S
ERVANT
1
WRITS OF CERTIORARI—See
D
RAINS
1
I
NDEX
-D
IGEST
1397
